author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE HIGHWAY COMM. v. Lillie D. CLEMMONS et al
    5-4534
    428 S. W. 2d 280
    Opinion delivered June 3, 1968

      Thomas B. Keys and Billy Pease, for appellant.

      Dale L. Bumpers, for appellees.
   George Rose Smith, Justice.

On October 3, 1963, the State Highway Commission filed an action to condemn 8.67 acres of the appellees’ land, to serve as part of the right-of-way for Interstate Highway 40. On February 7, 1964, the case was settled by the entry of a consent judgment awarding the landowners $13,300 as just compensation for their land. Nineteen months later the appellees filed the present complaint to set aside the consent judgment for fraud in its procurement. They assert that the Highway Department, by its agents and attorneys, falsely represented that it would construct a culvert under the highway of sufficient size to enable the landowners to move their cattle and machinery back and forth from one side of the highway to the other, their farm having been cut in two by the controlled-access highway. This appeal is from an order sustaining the charge of fraud and setting aside the consent judgment. Such an order is final and appealable. Norman v. Cammack, 105 Ark. 121, 150 S. W. 563 (1912).

The controlling principles of law are not in dispute. The appellees had the burden of showing that the judgment was obtained by fraud. Karnes v. Gentry, 205 Ark. 1112, 172 S. W. 2d 424,(1943). The charge of fraud must be sustained by clear, strong, and satisfactory proof. Graham v. Graham, 199 Ark. 165, 133 S. W. 2d 627 (1939). In explaining why such a clear-cut case must be made by one who attacks a judgment we have often used this language: “The statute to vacate judgments by this proceeding is in derogation not only of the common law, but of the very important policy of holding judgments final after the close of the term. Citizens must have some confidence in the judgments of our judicial tribunals, as settlements of their controversies, and there should be some end to them. Unless a case be clearly within the spirit and policy of the act, the judgment should not be disturbed.” Hardin v. Hardin, 237 Ark. 237, 372 S. W. 2d 260 (1963).

Fraud that entitles a party to impeach a judgment must be extrinsic of the issues tried in the case and cannot consist of fraudulent acts or testimony the truth of which was or might have been at issue in the case. It must be a fraud practiced upon the court in the procurement of the judgment itself. Ark. Stat. Ann. § 29-506 (Uepl. 1962); Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234 (1950). Even though the fraud that vitiates a judgment may be constructive rather than actual, constructive fraud is nonetheless a species of wrongdoing. It is a breach of a legal or equitable duty, which the law declares to be fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests. Arkansas Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161, 229 S. W. 2d 133 (1950); Levinson v. Treadway, 190 Ark. 203, 78 S. W. 2d 59 (1935).

The appellees’ proof, tested by the controlling rules of law, falls decidedly short of establishing actual or constructive fraud on the part of the Highway Department. The principal point in dispute concerns the size of the culvert under the highway. That underpass, as actually built, was ten feet wide and twelve feet high. The appellees insist that the dimensions of the culvert should have been just the opposite — twelve feet wide and ten feet high — and that essential farm machinery cannot be moved through the narrower corridor.

C. A. Clemmons, one of the appellees, took the lead in negotiating the settlement with the Highway Department. C. A. and his son Frank testified that after the condemnation suit was filed they went to the office of the Department’s resident engineer in Clarksville to learn the size of the culvert that was to be provided for the landowners. They talked to an assistant engineer, whose name they were unable to remember and who was not produced as a witness in the case. The two Clem-monses testified that the assistant engineer showed them the Highway Department’s plans, which described the proposed culvert as being twelve feet wide and ten feet high.

C. A. Clemmons first determined the actual dimensions of the concrete culvert when its construction was commenced. “It was there at the house, and I saw it.” He made no protest to the Highway Department, however, until some time after the culvert was completed. He testified that he talked to a succeeding district engineer, J. F. Price, who said that a mistake had been made in the construction of the culvert, which should have been twelve feet wide and ten feet high. Frank Clem-mons gave similar testimony.

The appellees called Price as their witness, but he did not corroborate their testimony. He testified that he had checked the plans and that they specified a 10-foot width and a 12-foot height for the culvert. He positively denied having said that a mistake had been made.

E. W. Smith, the resident engineer at the time of the trial, testified for the Highway Department. He produced a copy of the original plans, which showed that the culvert was designed to be ten feet wide and twelve feet high — just ás it was built. Smith described the care with which he had checked pertinent records to be sure that the plans had not been changed. There is no sound basis for questioning the authenticity or accuracy of the set of plans that were produced by Smith and received in evidence. They effectively rebut what was really the key testimony for the appellees; that is, the Clemmonses’ statement that an unidentified assistant engineer showed them a set of plans with the culvert’s dimensions reversed. We should add that the specifications for the culvert are set out in the plans in such a way that a layman could easily make a good faith mistake in determining the proposed width and the proposed height.

It will be seen from our summary of the evidence that there is no sound basis for a finding that the Highway Department was guilty of actual or constructive fraud in agreeing to construct an underpass for the landowners. There is in the record certain testimony going to show that the approaches to the concrete floor of the underpass were so poorly built that they were washed out by surface water produced by heavy rains. There is, however, no proof that the Department perpetrated a fraud upon the condemnees by falsely promising to construct and maintain permanent approaches to the underpass.

It is fair to say that the appellees’ evidence goes to indicate, at the very- most, that the Clemmonses understood that they had a certain agreement with the Highway Department about the promised underpass and that by mistake the Department failed to construct the underpass in conformity with that agreement. Even so, the proof fails to show that the Highway Department employees were guilty of actionable fraud, and the ap-pellees are prohibited by the Constitution from suing the State for breach of contract.

Reversed and remanded for the reinstatement of the consent judgment.

FoglemaN, J., dissents.

John A. Fogleman, Justice,

dissenting. I disagree with the result reached by the majority because this court should not weigh the evidence offered. It should only determine whether there is evidence to support the findings of the trial judge. He made specific findings that:

(1) Appellant, by its attorney, resident engineer and district engineer, fraudulently induced appellees to enter into this consent judgment by falsely representing to them that an underpass suitable for the movement of farm machinery and cattle of appellees would be constructed and maintained by appellant.

(2) Appellant knew that the underpass as constructed would not be adequate for the movement of either farm machinery or cattle.

I feel that there are facts and testimony worthy of consideration which support the court’s order, in addition to the brief summary in the majority opinion. While neither of the Clemmonses claim that the assistant engineer made any statements or representations to them other than by showing them these plans, C. A. Clem-mons testified that he stated to the assistant engineer that if the dimensions were as shown, he could “get by ■with the machine.” Neither of these witnesses were the least bit equivocal about the dimensions shown on the plans. C. A. Clemmons understood that the highway department was going “to fix it at the end of the culvert.” Neither C. A. nor Frank Clemmons says that anyone told them on that visit anything about approaches to be built at the ends of the culvert to provide access thereto from the several tracts. Frank Clemmons says, as he recalls, the plans did not show anything in regard to these approaches. C. A. Clemmons testified that Little, the resident engineer on this construction, told him that appellant would place rock at the culvert ends so that appellees would have access to use the culvert. The time of the alleged making of this statement is not clear. This witness testified that he then told Little that the branch or creek which would run through the culvert would wash the rock out after the first big rain, but Little responded that the rock would be “rolled in.” After the judgment was entered, the culvert was constructed with dimensions of 10 feet in width and 12 feet in height. The highway department caused a road to be graded at each end of the culvert which permitted passage there-through. C. A. Clemmons says that he again told the engineer that this road would be washed out by the first rain thereafter. The base of the culvert was built below the bed of the creek flowing through it. O. A. and Frank Clemmons both state that, because of the creek flowing* through the culvert after rains, it was soon filled with mud and debris to such an extent that vehicles and farm equipment could not be moved through it. According to them, cattle can only be moved through the culvert in dry weather. The culvert is too narrow for some of appellees’ farm equipment to pass through.

C. A. Clemmons and Frank Clemmons also testified that they went to see John F. Price, district engineer of the highway department at Russellville, after the culvert was constructed, and that he admitted that the culvert was supposed to be 12 feet wide and 10 feet high, hut that, through a mistake, the dimensions were reversed in construction. Price was called as a witness by appellees, but he testified that the culvert was constructed according to the plans and that he did not make the statement attributed to him by C. A. Clemmons. In his opinion, however, the culvert was designed to afford a passageway for vehicles and livestock. He agreed that dropoffs at the ends of the culvert, caused by scouring from the flow of water, would make the use of the culvert by vehicles and cattle difficult and that the rock was placed at the end to provide access to the culvert.

W. C. White owned a shale pit on the Clemmons farm to which he would now have no access except through this culvert. When he learned of the proposed highway construction he went to see Resident Engineer Little who advised him that the proposed culvert would be 8 feet high by 8 feet wide, but thought it might he made 12 feet high by 12 feet wide, and later told him that it would be. Little also promised that an approach would be put on both ends so that “it wouldn’t be bothering” White. There is no evidence that this assurance was ever conveyed to any of the appellees. White says that he has never been able to use the culvert.

E. W. Smith, presently resident engineer for appellant in the area, testified that the culvert was built in conformity with the plans and that they showed no rock or paved aprons. He admitted that his predecessor advised that rock was placed at each end because the landowner had been promised the use of the culvert as a cattle pass.

Appellees proceeded under the fourth clause of § 29-506 [Ark. Stat. Ann. (Repl. 1962)] authorizing a trial court to vacate its judgment after the expiration of the tei’m at which it was rendered for fraud practiced by the successful party in obtaining the judgment.

The extrinsic or collateral fraud for which a judgment may be vacated may consist of fraud or deception practiced by the one party keeping the other away from court or keeping him from asserting a defense or fully presenting his case, without negligence or fault on the part of the moving par tv. Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234; Norwood v. Heaslett, 218 Ark. 286, 235 S. W. 2d 955; Johnson v. Johnson, 169 Ark. 1151, 277 S. W. 535; Hempstead & Conway v. Watkins, 6 Ark. 317, 42 Am. Dec. 696. This fraud may be constructive. Chronister v. Robertson, 208 Ark. 11, 185 S. W. 2d 104; Kersh Lake Drainage Dist. v. Johnson, 203 Ark. 315, 157 S. W. 2d 39. Neither dishonesty of purpose nor intent to deceive is an essential element of constructive fraud. Lane v. Rachel, 239 Ark. 400, 389 S. W. 2d 621; Arkansas Valley Compress & Wholesale Co. v. Morgan, 217 Ark. 161, 229 S. W. 2d 133. It is sometimes called “legal” fraud or “fraud at law” and consists of a breach of either legal or equitable duty, which, irrespective of moral wrong, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests. Levinson v. Treadway, 190 Ark. 201, 78 S. W. 2d 59; Lane v. Rachel, supra. Constructive fraud is presumed froin the relation of the parties to a transaction or from the circumstances under which it takes place and the conscience is not necessarily affected by it. Kersh Lake Drainage Dist. v. Johnson, supra. In that case we quoted from 23 Am. Jur. 756, Fraud & Deceit, § 4, in part:

“* * * Indeed, it has been said that it generally involves a mere mistake of fact. Hence, the terms ‘constructive fraud’ and ‘legal fraud’ both connote in certain circumstances, one may be charged with the consequences of his words and acts, as though he had spoken or acted fraudulently, although, properly speaking, his conduct does not merit this opprobrium. ’ ’

Here, there is evidence Clemmons was deceived without any dishonest intent on the part of anyone. The complaint in the action to take his land stated that the highway would be constructed according to plans on file with the highway department. In order to ascertain the damages to his severed lands, it was necessary that he know these plans. He went to the appropriate source to ascertain them. He relied on the plans shown him, but says that he was told the width of the culvert also. In order to obtain the information, he must of necessity have made the purpose of his inquiry known. Both he and his son state positively that the dimensions shown indicated a culvert width of 12 feet. Appellant did not produce Little, the former resident engineer, or his assistant to refute the testimony of the Clemmonses. Naturally, appellees relied on the information obtained from appellant in agreeing to the consent judgment. Certainly there was a duty on the part of the highway department, the only source of information, to give correct information upon appellees’ inquiry. It is obvious that a lack of communication and means of travel between the several tracts would cause an enhancement of damages to the remaining lands. Appellant does not even contend that appellees would not have a “meritorious defense” to the action, if the judgment is set aside. The trial judge made specific findings that representations were made as to the adequacy of the culvert to provide the desired means of communication and as to the accessibility of the culvert to the several lands. He also found that the construction was not in accord with these representations. I cannot say that his findings are unsupported by sufficient evidence, even though it is not undisputed.

The fact findings of the trial judge are as binding on us as the verdict of a jury would have been. When the law makes the circuit judge the trier of facts in cases in which the constitutional right to trial by jury does not extend, the same presumptions attend his findings as when the issues of fact are tried before him when a jury is waived by the parties. Schuman v. Sanderson, 73 Ark. 187, 83 S. W. 940; Matthews v. Cargill, 125 Ark. 136, 188 S. W. 564. This rule applies to proceedings to vacate a judgment after the expiration of the term under § 29-506. Cady v. Pack, 135 Ark. 445, 205 S. W. 819.

Where there is substantial evidence in support of the finding of the trial court, the same will not be set aside by this court on appeal. Gazzola & Co. v. Savage, 80 Ark. 249, 96 S. W. 981. The evidence must be given its strongest probative force in favor of the finding of a trial court in law cases. Inter-Southern Life Ins. Co. v. Ransom, 149 Ark. 517, 232 S. W. 754.

The findings of a circuit judge, when the law makes him the trier of the facts, are as conclusive on appeal as the verdict of a jury. Schuman v. Sanderson, supra. On appeal from a law court, the finding of the court on a controverted question of fact is conclusive if supported by substantial evidence. Ward v. Nu-Wa Laundry Cleaners, 205 Ark. 713, 170 S. W. 2d 381; Bank of Atkins v. Wirth, 209 Ark. 360,190 S. W. 2d 445. The reason for the rule is that, in law cases, we only review for errors, unlike chancery cases in which there is a trial de novo by this court. Matthews v. Cargill, supra.

In an action to set aside a judgment, we must treat as conclusive the findings of the trial court on disputed issues of fact. Collier v. Mississippi Beneficial Life Ins. Co., 164 Ark. 54, 261 S. W. 39; Halliday v. Fenton, 164 Ark. 11, 260 S. W. 961.

In determining the sufficiency of evidence, this court will consider evidence favorable to appellee only. If there is substantial evidence to support a verdict, it will not be disturbed. Harmon v. Ward, 202 Ark. 54, 149 S. W. 2d 575.

It is only required, on appeal, that the findings of the trial court in vacation of a judgment under § 29-506 be supported by substantial evidence. O. C. Scroggin & Co. v. Merrick, 176 Ark. 1205, 5 S. W. 2d 344.

The fact that the burden was upon appellees in the lower court to prove certain facts by clear, strong and satisfactory proof or clear and convincing evidence does not change the scope of review on appeal or make the findings of the trial court any less binding where the trial on appeal is not de novo. The quality of proof called “clear and convincing” is something’ more than a mere preponderance as required in ordinary civil cases, but not beyond a reasonable doubt as required in criminal cases. In re Estate of Fife, 164 Ohio St. 449, 132 N. E. 2d 185 (1956); Cromwell v. Hasbrook, 81 S. D. 324, 134 N. W. 2d 777 (1965); Aiello v. Knoll Golf Club, 64 N. J. Super. 156, 165 A. 2d 531 (1960); Child v. Child, 8 Utah 2d 261, 332 P. 2d 981 (1958).

Whether the evidence is “clear, strong and satisfactory” is to be determined by the trier of the facts and is not to be weighed on appeal. In Graves v. State, 236 Ark. 936, 370 S. W. 2d 806, we said:

“Upon the conflicting testimony the issues of fact were properly submitted to the jury. The appellants are in error in arguing that the State’s failure to prove its ease beyond a reasonable doubt entitles them to a reversal. The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but there is no requirement that the members of this court be similarly persuaded by the proof. Here the test is that of substantial evidence. If the verdict is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence. Fields v. State, 154 Ark. 188, 241 S. W. 901.”

If this rule is applicable in a criminal ease where lives and liberty of appellants are at stake, and where the quality of proof required is even greater, it should be much more appropriate in a civil case at law.

I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: George Rose Smith, Justice. Conley Byrd, Justice, J. Fred Jones, Justice,

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMM. v. Herman KAUFMAN et al
    5-4586
    428 S. W. 2d 251
    Opinion delivered June 3, 1968

      Thomas B. Keys and Virginia Tackett, for appellant.

      Gordon, Gordon & Eddy, for appellees.
   George Rose Smith, Justice.

In 1964, the appellees, Herman Kaufman and Nathan Gordon, acquired a 3,-775-acre tract of land in Conway county, with the intention of eventually using it as a cattle ranch. Two years later the Highway Commission brought this action to condemn two parcels in the tract, one of 15.53 acres and the other of 8.29 acres, for use in the construction of Interstate Highway 40. The jury fixed the landowners’ compensation at $35,000, of which not less than $32,000 must be apportioned under the evidence to the larger parcel. For reversal the Commission contends that the $32,000 award is excessive and that the court erred in allowing the jury to consider a diagram which Kaufman had prepared to assist him in testifying.

After a careful study of the record we are unable to say that the award is demonstrably excessive. The appellees paid $148,640 for the 3,775-acre tract, hut they are unquestionably right in saying that they got it at a tremendous bargain. Between the date of their purchase and the date of trial they had received $78,980.65 from the sale of timber on the land. An estimated $70,000 worth of timber was still to be cut. Even the lowest estimate of value made by the Highway Commission’s expert witnesses was $234,500. When that figure is increased by the timber proceeds already received the purchase had shown a worth of more than $300,000 by the time of trial. The landowners’ witnesses put the figure at more than $400,000.

The interstate highway will cross a neck of land, containing 123 acres, which would otherwise provide access to U. S. Highway 64 and to the Missouri Pacific railroad track, which could serve the cattle ranch by means of a spur. Construction of Interstate 40 will cut the 123-acre tract in two, destroying the ranch’s access to the highway and railroad and reducing the tract’s usable area so materially that it cannot be used as the headquarters for the proposed ranch.

An adequate site for a headquarters is admittedly essential to the operation of a large cattle ranch. Much of the landowners’ testimony went to prove that the 123-acre neck of land was by far the most suitable site for a headquarters. Its relatively high elevation is shown to be an important and desirable element in the selection of such a site. An ample supply of water is readily available there. We have already mentioned its previous access, now denied, to transportation facilities. A number of photographs in the record confirm the witnesses’ description of the parcel as a desirable, comparatively level site for the headquarters.

Expert witnesses, some of them experienced in the operation of cattle ranches, enumerated their reasons for believing that the loss of the 123-acre site seriously reduced the value of the entire 3,337-acre tract as a prospective cattle ranch. "Those witnesses fixed the landowners’ damages at from $38,475 to more than $56,000. The two expert witnesses for the Highway Department were not shown to be experienced in appraising ranch lands and really made no effort to rebut the landowners ’ proof. On the record as a whole it cannot be said- that there is no substantial evidence to support the $32,000 award.

The appellant’s other point for reversal challenges the admissibility of a simple line drawing that Kaufman used in his testimony. The diagram was intended to show how the 123-acre site, consisting of a somewhat narrow rectangle leading to the railroad and existing highway, could have been used as an efficient ranch headquarters. The drawing, which is about as simple as one could imagine, depicts a central lane running the length of the site. It provides access to the transportation facilities at one end and to the rest of the ranch at the other. On each side of the lane Kaufman drew rectangles that were labeled as feed lots, holding areas, corrals, and a storage area. Kaufman used the drawing in explaining to the jury how the cattle could be funneled into the headquarters area, be kept in pens where they could be efficiently fed by means of an auger feeder, and eventually be moved into loading chutes for shipment.

In objecting to the use of the diagram counsel for the appellant refer to several condemnation cases, including some of those reviewed recently in Housing Authority of the City of Camden v. Reeves, 244 Ark. 783, 427 S. W. 2d 196 (1968). Those cases considered the admissibility of lot-and-block plats of residential subdivisions that existed in some instances on paper only. In several cases such plats were ruled out, either because they did not take into account the expense of bringing in streets or utility lines or because they might influence the jury to value raw acreage as if it were already divided into salable building lots.

The exclusionary principle underlying those decisions has no application here. Kaufman’s drawing was not intended as a basis for the assignment of values to the various enclosures that were sketched. Those enclosures were nearly all mere spaces defined by lines that represented fences. The sole purpose of the diagram was to enable the jury to see how the rectangular 123-acre parcel could be used as a site for the ranch headquarters. That the witness admitted that the site might not have been completed for as much as ten years is immaterial, because Kaufman was merely explaining how the site could be used. (He added that he had been building on his own nearby ranch for 40 years and still hadn’t completed it.)

By analogy, we have held in a condemnation case that the landowner was entitled to show that his property on a river bank possessed superior advantages as a bridge site. Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51 (1887). So here, Kaufman was properly allowed to explain the particular suitability of the parcel as a site for the necessary ranch headquarters. In that connection the use of the drawing to present to the jury a graphic explanation that would otherwise have bpen conveyed to them by Kaufman’s admissible oral testimony falls within familiar principles governing the use of plats, diagrams, sketches, and the like as aids to a witness’s testimony. See Sanders v. Walden, 214 Ark. 523, 217 S. W. 2d 357, 9 A. L. R. 2d 1040 (1949); Howell v. Baskins, 213 Ark. 1565, 212 S. W. 2d 353 (1948). We find no error in the court’s ruling.

Affirmed.

BrowN, Jones and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. Since the verdict was, to say the least, ultraliberal, I can only conclude that the landowners’ utopian map served to produce liberality. The map demonstrated neither the present condition of the farm nor that commonly in nse by farms similarly situated — only Mr. Kaufman’s ten-year dream was demonstrated by the plat.

To me the plat dripped of speculation and produced prejudice.

I would reverse.

BrowN, J., joins in this dissent.

J. Fred Jones, Justice,

dissenting. In the acquisition of right-of-way for interstate highway purposes, I cannot, in good conscience, bring myself to approve a judgment in damages, to what I consider to be, a mere disturbance of some future cattleman’s dream of a utopian cattle spread.

The money award in this case, was for damage to every acre in a large tract of old fields and timber land because the right-of-way crossed a comer of the tract most suitable and convenient for the elaborate headquarters of a hugh cattle ranching operation, if, and when, anyone owning the land, should have the desire, ambition, know-how and cash assets, to develop the land into such cattle ranch the appellees visualize as possible. I consider the damages entirely speculative, and I would reverse.


author: George Rose Smith, Justice.

text:
    Edna B. CAMPBELL et al v. Luther FORD et al
    5-4605
    428 S. W. 2d 262
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      Roy Mitchell, for appellants.

      Wood, Chesnutt & Smith, for appellees.
   George Rose Smith, Justice.

The appellants and the appellees are neighbors whose hack yards abut opposite sides of Bray street in the city of Hot Springs. This suit was brought by Mr. and Mrs. Campbell to compel the appellee-defendants to remove encroachments that obstruct the street. The chancellor dismissed the complaint for want of equity, finding that the city council had not exercised its power to open the street for travel and that the Campbells had not proved that they have suffered special damages differing from those sustained by the general public. We hold the first finding to be immaterial and the second to be against the weight of the proof.

That part of Bray now in dispute was platted, dedicated, and accepted by the city as a cul-de-sac, 30 feet wide, that runs south from Avery street for 207 feet, where it dead ends. The several appellees own the four houses on the west side of the street, all facing Mountain View street to the west. The Oaiupbells own the southernmost two lots on the east side of Bray. Their house faces Campbell street on the east.

According to Campbell’s testimony, Bray street was at least traversable until 12 or 15 years before the trial. Since then the owners of the four lots on the west side of Bray have encroached on the street and affected its grade. At the north end of the block an L-shaped latticework wall made of concrete blocks extends across the street from the Goslee lot and for some distance down the east side. (The appellee Goslee’s house, the northernmost of the four, also encroaches on the street for six to eight feet, but the Campbells do not ask that it be removed.) Behind the next house, owned by the appellee Almstead, rocks have been pushed into the street to raise its grade and thereby fend off surface water. Farther south a stone wall extends east from one of the two Ford lots and obstructs the street to an extent not precisely shown by the testimony. Owing to the narrowness of Bray street it does not appear that the encroachments are off what will be the traveled part of the street, when opened.

Turning to the chancellor’s first finding, we think it to be immaterial that the city has not seen fit to open and develop this part of Bray street. The city cannot divert a dedicated street to an unauthorized use, either public or private, to the special damage of abutting owners. That point was fully considered in Osceola v. Haynie, 147 Ark. 290, 227 S. W. 407 (1927), where we said:

“In tbe case of Packet Co. v. Sorrels, 50 Ark. 473, it was said that authorities of a town or city can not lawfully appropriate or divert a street to uses and purposes foreign to that for which it was dedicated; and that it is not within the power of the Legislature to authorize its appropriation to private use nor to public purposes except in the manner in which private property can be taken for the use of the public under the right of eminent domain. The city had no right to close the street. Upon the contrary, it was the duty of the city to keep the street open. C. & M. Digest, §§ 7570 and 7607; Little Rock v. Jeuryens, 133 Ark. 126.
“The plaintiffs here have shown a damage in addition to that sustained by the public. Their property has been damaged in value, and under numerous decisions of this court they are entitled to an injunction to remove the nuisance. Dickinson v. Ark. City Imp. Co., 77 Ark. 570; Matthews v. Bloodworth, 111 Ark. 549; Wellborn v. Davies, 40 Ark. 83; Packet Co. v. Sorrels, 50 Ark. 474; Texarkana v. Leach, 66 Ark. 42; Davies v. Epstein, 77 Ark. 227; Stoutemeyer v. Sharp, 89 Ark. 177; Draper v. Mackey, 35 Ark. 497.”

Needless to say, what the city cannot do directly by affirmative action it cannot do indirectly by passive inaction.

On this point the appellees argue that Bray street is so scarred by gullies running southward that the cost of making it even passable would be prohibitive. There are two pertinent comments to be made about that argument. First, no one contradicts 'Campbell’s statement that the street was formerly used. "Whatever gullies now exist appear to have been caused by the appellees ’ pur-prestures, which were intended to deflect the flow of surface water. The appellees cannot equitably profit by an obstacle of their own making.

Secondly, Campbell is not depending on the city council to develop the street. For several years he has had on hand a supply of drain tile to be used in the street. He testified that no additional fill would be needed. “With the amount of material that’s already been put in there, a wall torn down, and a gentle slope from the north, it would make a very cozy street. It could be done in a half a day’s time with a bulldozer.” If, after the appellees have removed the encroachments, Campbell wishes to improve the street at his own expense, we know of no rule of law to prevent him from doing so, as long as he does not alter the original grade of the street to the detriment of his neighbors.

Finally, we cannot sustain the chancellor’s finding that the Campbells have not sustained special damage entitling them to relief. The great weight of the proof is the other way round. Campbell testified that his lots would be worth 50 percent more if Bray street were opened up. Even the appellee G-oslee, a real estate dealer who owns one of the lots on the west side of Bray, admitted on cross-examination that a back entrance to the Campbell property would add to its value.

Furthermore, the destruction of one means of access to a landowner’s property meets the test of special damages. ‘ ‘ The' fact that appellant had other entrances to his lot would not keep him from suffering special and peculiar damages if his entrance by way of the alley in question were destroyed. The deprivation of any entrance to or exit from one’s property is a special or peculiar damage to it not suffered by the public in general.” Langford v. Griffin, 179 Ark. 574, 17 S. W. (2d) 296 (1929).

Reversed and remanded for the entry of a decree in harmony with this opinion.

HaRbis, C. J., and Jones, J., would affirm the decree.


text:
    Paul EDWARDS v. STATE of Arkansas
    5339
    429 S. W. 2d 92
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      Murphy & Burch, for appellant.
   George Rose Smith, Justice.

By information the appellant, an employee of the Crown Coach bus company, was charged with the larceny of $2,505.15 belonging to his employer. He appeals from a verdict and judgment finding him guilty and sentencing him to serve a year in the penitentiary. For reversal he questions the charge of larceny, as distinguished from embezzlement, and the admissibility of Dr. Donald Baker’s testimony for the State.

There is no merit in the first contention. On the evening of the theft Edwards was in charge of the bus station at Fayetteville. He took three money bags from the money drawer and hid them by thrusting them through a hole in the ceiling. Edwards, being a servant having mere custody of his master’s property, was properly chargeable with larceny. Atterberry v. State, 56 Ark. 515, 20 S. W. 411 (1892). See also Ark. Stat. Ann. § 41-3929 (Eepl. 1964), defining larcény by a bailee, and § 43-1012, with respect to a defect in the charge which does not tend to prejudice the substantial rights of the accused on the merits.

The serious issue is whether Dr. Baker’s testimony should have been excluded as a privileged communication between physician and patient. Upon that issue the facts must be narrated in some detail.

At about nine o’clock on the night of the crime John Pomoransky went to the bus station on business. There was no one in the waiting room. Pomoransky saw Edwards lying face down on the floor behind the counter. A money drawer was open; papers were scattered about. Assuming that a robbery had occurred, Pomoransky called to an acquaintance next door to send for the police and an ambulance.

The ambulance drivers got there first. Officer Stout arrived a few moments later, while Edwards was still on the floor. He talked to Edwards briefly, to find out what had happened. Edwards said that he had heard the door open, but he didn’t look up, and someone hit him on the head twice. Officer Stout, seeing no indication of any injury, examined and felt Edwards’s head, but he found no swelling, no blood, no abrasions. After Edwards was taken to the hospital the police officers searched the premises and quickly found the money bags above the ceiling. There were some shelves nearby that could be pulled out to serve as a ladder for access to the hole in the ceiling.

The ambulance crew, apparently acting without instructions from the police, had taken Edwards to the emergency room at the Washington General Hospital. Dr. Baker, who was not Edwards’s family doctor but was on call that night was sent for and arrived within five minutes. Edwards told him that he had been struck on the right side of the head, had fallen to his knees, and had been knocked unconscious by a second blow on the top of his head.

Dr. Baker with no one else present, examined Edwards carefully. He testified that if Edwards had been knocked unconscious by blows on the head, there would have been abrasions, redness, or swelling as a result of the trauma. No such indications were found. Neurological changes in the movements of Edwards’s eye muscles would also have resulted from a recent loss of consciousness, but those symptoms did not exist. If Edwards had fallen to his knees there would have been indicative marks on the skin, but such marks were wholly absent, X-rays of the skull were likewise negative. In short, Dr. Baker’s testimony which the jury manifestly accepted as the truth, demonstrated that Edwards’s tale of having been robbed was an out-and-out fabrication.

Counsel for Edwards objected unsuccessfully to Dr. Baker’s testimony, on the ground that it was privileged. Ark. Stat. Ann. § 28-607 (Repl. 1962). In some states such statutes have been construed to apply only to civil cases; other courts have held them applicable to criminal trials as well. See, for example, State v. Betts, Ore. 384 P. 2d 198 (1963), and State v. Sullivan, Wash., 373 P. 2d 474 (1962). In the past we have assumed, without expressly declaring, that our statute does apply to criminal cases. Wimberley v. State, 217 Ark. 130, 228 S. W. 2d 991 (1950); Cabe v. State, 182 Ark. 49, 30 S. W. 2d 855 (1930); Burris v. State, infra.

We need not explore that question, because we are convinced that the trial judge correctly rejected the claim of privilege in this case. In the first place, the statute by its terms applies only to information which the physician may have acquired from his patient while attending in a professional character “and which information was necessary to enable him to prescribe as a physician. . .” § 28-607. We have given effect to that limitation. In Burris v. State, 168 Ark. 1145, 273 S. W. 19 (1925), two physicians who had treated the accused for disease on different occasions were permitted to testify for the State about his mental condition. In holding that testimony to be admissible we said:

“It will be observed that the statute only excludes the testimony of a physician as to information ‘necessary to enable him to prescribe as a physician.’ The statute does not exclude all of the testimony of a physician because he had attended the person in a professional capacity, but the exclusion is limited to information which was necessary to enable the physician to prescribe. Neither of these witnesses had ever examined appellant as to his mental condition or treated him for mental disease, and they both testified that they were basing their opinions upon mere observations of the appellant during their acquaintance with him as family physician and by observing him while he was on the witness stand, but not from any information received for the purpose of treating him. . . .
‘ ‘ Counsel rely mainly upon the announcement of the law on the subject made by this court in the case of Triangle Lumber Co. v. Acree, 112 Ark. 534, but we find nothing on examination of the opinion in that ease which would justify us in holding that his testimony was incompetent. There is nothing in the opinion to justify the conclusion that we meant to ignore the distinction that under the statute the testimony of a physician is not to be excluded except such as related to information essential to the treatment of the patient.”

In the second place, the purpose of the privilege is to permit a patient to communicate freely with his physician about his disease and to prevent physicians from disclosing the infirmities of their patients. Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720 (1914). Neither reason has the slightest relevancy here. Edwards, who did not testify or offer any witnesses at the trial below, obviously had no basis for communicating with Dr. Baker about his disease, because he knew perfectly well that he had none. To permit one in such a situation to feign injury and then exclude the doctor’s testimony would enable a criminal to conceal by deliberate falsehoods the most trustworthy evidence of his offense. As we said in the Wimberley case, supra: “It could not have been intended by the Legislature that. . . the Act should be the means of protecting a criminal from just punishment.”

Finally, counsel for the appellant, citing the landmark holdings in Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, 384 U. S. 436 (1966), argue with apparent gravity that Dr. Baker’s testimony should have been ruled out because he failed to inform Edwards that he could remain silent, that anything he said might be used against him, that he was entitled to a lawyer, and so on. The two cases cited announced principles applicable to in-custody police interrogation when the investigation has reached the accusatory stage. It would be the height of absurdity to apply those principles to a medical examination conducted by a physician in circumstances giving him no reason to suspect, before the completion of the examination, that some offense on the part of his patient might conceivably be involved. The suggestion that Dr. Baker’s testimony involved self-incrimination on Edwards’s part is rebutted by the holding in Schmerber v. California, 384 U. S. 757 (1966).

Affirmed.


text:
    Roy WALKER v. STATE of Arkansas
    5350
    429 S. W. 2d 121
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      Oliver L. Adams, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Roy Walker was convicted of involuntary manslaughter and sentenced to imprisonment for three years. According to the State’s proof, Walker was driving a truck on a highway in or near Eureka Springs at such a high speed that he lost control of the vehicle and struck and killed Otto Miller, a pedestrian. The information charged that Walker was intoxicated at the- time. For reversal Walker contends that the court erred in allowing the prosecution to introduce evidence of a blood test that showed Walker to have been intoxicated.

After the accident Walker, who was injured, was taken by someone to a hospital in Eureka Springs, where he was treated as an outpatient. There K-ichard Stall-man, a laboratory technician, took a sample of Walker’s blood without having asked his permission and sent it to a pathologist in Fayetteville for analysis. The pathologist testified that the sample contained .140 percent of alcohol when taken and that the percentage would probably have been higher an hour earlier, when the accident occurred.

The appellant, citing Schmerber v. California, 384 U. S. 757 (1966), and other cases, insists that the taking of the blood sample amounted to such an unreasonable search and seizure as to be prohibited by the federal and state constitutions. It does not appear, however, that Stellman acted either at the direction of the police or by prearrangement with them. The seareh-and-seizure clauses are restraints upon the government and its agents, not upon private individuals. People v. Potter, Cal. App., 49 Cal. Rptr. 892 (1966); State v. Brown, Mo., 391 S. W. 2d 903 (1965); State v. Olsen, Ore., 317 P. 2d 938 (1957). Hence the proof does not establish a denial of Walker’s constitutional rights.

Complaint is also made of the court’s refusal to give an instruction informing the jury that the decedent was under a duty to keep a proper lookout. We doubt the applicability of such a civil standard to a criminal case, but in any event the point was not included in the motion for a new trial and so is not available to the appellant in this court. Dokes v. State, 241 Ark. 720, 409 S. W. 2d 827 (1966).

Affirmed.


author: Paul Ward, Justice. Lyle Brown, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. G. L. MORRIS and Cornelia Morris
    5-4596
    429 S. W. 2d 114
    Opinion delivered June 3, 1968
    [Rehearing denied July 15, 1968.]

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Eldridge & Haralson, for appellees.
   Paul Ward, Justice.

This is an eminent domain proceeding, and only one point — a point of law — is involved on appeal. The pertinent background facts and procedure can be briefly stated.

Facts. The Arkansas State Highway Commission (appellant herein) filed a complaint in circuit court to acquire 37.49 acres out of a large tract of land, belonging to G. L. Morris and his wife (appellees), for construction purposes on U. S. Highway 64 in-Woodruff County. Appellant having deposited in court $14,500, as estimated compensation, the trial court granted immediate possession to appellant. Appellees refused to accept the above amount, and a jury trial followed. At the trial appellees ’ witnesses fixed the value at different amounts —averaging around $85,000, and appellant’s witnesses fixed the value at approximately the same amount as was deposited in court. The jury gave appellees a judgment in the amount of $40,000, and from that judgment appellant prosecutes this appeal.

The only point urged by appellant for a reversal is that the trial court erred in giving appellees ’ requested Instruction No. 2, which reads:

“You are instructed that under the law defendants are entitled to recover the fair market value of the lands actually taken; also, an amount which will fairly compensate them for the damages, if any, to the remaining lands not taken for highway purposes, considering the facility as being completed and in place. “You will, therefore, ascertain the difference between the fair market value of the entire tract of the defendants before the taking for highway purposes and the fair market value of the lands remaining in the tract after such taking, and that difference is the amount the defendants are entitled to recover, and your verdict should be for the defendants in such amount.
“In other words, ladies and gentlemen, what I am saying is the way you arrive at just compensation is to determine the difference in fair market value of the property before the taking and immediately after the taking, and in arriving at that" difference you may take into consideration other elements.”

The essence of appellant’s contention is that the first paragraph is in conflict with the second paragraph, and that this constitutes reversible error. In support of the contention appellant relies on Young v. Ark. State Hwy. Comm., 242 Ark. 812, 415 S. W. 2d 575, and Myers v. Ark. State Hwy. Comm., 238 Ark. 734, 384 S. W. 2d 258. The Young case recognized two alternative formulas for measuring compensation for a partial taking— “(ii) Value of the part taken plus damages to the remainder rule; a/nd, (iii) The before and after value rule.” Following the above quotations we also said:

“Therefore, it would be inappropriate to instruct the jury as to both formulas ...” In the Myers case, supra, the trial court gave an incorrect instruction on the measure of damages and then gave a correct instruction. On appeal we said that the correct instruction did not cure the error in giving the erroneous instruction.

For reasons presently stated, we conclude that the above decisions do not justify a reversal of the ease here under consideration.

First, in this ease, the trial court did not give two separate instructions on the measure of damages — it gave only one instruction. Two, the third paragraph of the instruction explained and harmonized the first two paragraphs. Three, the first paragraph of the instruction is a correct statement of the measure of damages and therefore does not conflict with the second paragraph. In the Young case there appears this statement: “This does not mean that evidence of the value of the lands taken plus damages to the remainder is not admissible. In fact, it is appropriately considered by appraisers as two of the many guides for determining ‘before and after values’ In the Myers case, supra, we made this statement:

“In arguing the case to the jury, counsel for the appellee would have had every right to read to the jury Instruction No. 1 and emphasize that under this instruction the landowner could only recover the value of the land actually taken . . . Such an argument would be confusing to the jury, because the real issue was the difference in the value before and after the tailing.”

In the case here under consideration we do not have two conflicting instructions by which the jury could be confused.

Affirmed.

Smith, Browh and Jokes, JJ., concur.

Lyle Brown, Justice,

concurring. I believe the recited instruction should not have been given. In Young v. Arkansas State Highway Comm’n., 242 Ark. 812, 415 S. W. 2d 575 (1967) we made it clear that the “value plus damages” formula and the “before and after” rule are alternative formulas for determining just compensation. Being alternatives, both rules should not be given. However, the objection made by appellant did not remotely call that defect to the attention of the court. The single point raised was that the giving of the instruction “would allow the defense attorney to argue the first paragraph in such a way that the jury might think they were supposed to give the landowner damages for the land taken and also damages for the remaining land not taken for highway purposes, and this is not the correct measure of damages in a suit of this kind.” No general objection was made.

The statement that the “value plus damages” rule is not the law is hardly correct. As pointed out in Young, it has been used many times in eminent domain cases. Our court has not condemned it.

JoNes, J., joins in this concurrence.


author: Paul Ward, Justice.

text:
    Eugene MYRICK v. STATE of Arkansas
    5356
    428 S. W. 2d 241
    Opinion delivered June 3, 1968

      Branch & Adair, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

Eugene Myrick (appellant) was charged with the crime of “assault with intent to kill” his wife, Louise Myrick. He was likewise charged with the same crime against his mother-in-law, Mrs. Strope. Both assaults were alleged to have occurred at the same time and place — on November 4, 1967 at the home of Mrs. Strope.

Upon trial, appellant was found guilty, as charged, of the assault on his wife and his punishment was fixed at imprisonment in the penitentiary for three years. He was found guilty of an aggravated assault upon Mrs. Strope, was fined $50 and imprisoned in the county jail for thirty days.

Appellant now seeks only to reverse the conviction for assault with intent to kill his wife. Set out below is a brief statement of the background facts.

Appellant and his wife have been married for sixteen or seventeen years, and they have five children who range in age from eight to fifteen years. To put it mildly, their marriage has been turbulent, having separated some fifty times. About two weeks before the occurrence here in question (On November 4, 1967) Mrs. Myrick left home and moved into the home of her mother — Mrs. Strope. On the date last mentioned appellant went over to Mrs. Strope’s house to give his wife $60 out of his weekly paycheck. While there the assaults took place. Mrs. Myrick was stabbed by appellant with a pocket knife twelve times about the arms, neck and torso. The picture introduced in evidence showed considerable blood on the floor and furniture. When Mrs. Strope attempted to protect her daughter she was stabbed five times. Appellant does not deny that the assaults took place, nor does he deny the extent of the injuries inflicted.

We have concluded that the case must be reversed because of the trial court’s refusal to give appellant’s requested instruction which reads:

“The charge of assault with intent to kill requires that the defendant have a specific intent to take the life of the person assaulted. And in this connection if you find from a preponderance of the evidence that at the time of the doing of the thing charged the accused was so drunk that he could not have entertained the intent necessary to constitute the crime, then you wdll acquit the defendant of the crime of assault with intent to kill.”

Appellant saved his exceptions to the court’s refusal to give the requested instruction,

In the case of Chowning v. State, 91 Ark. 503, 121 S. W. 735, this precise question was under consideration. Appellant was convicted “of the crime of an assault with intent to kill one Lewellen”, and the trial court refused to give appellant’s requested instruction which, in material part, reads:

“If you find and believe from the evidence that the defendant was intoxicated to that extent that he was not conscions of what he was doing, being drunk to the extent that he could have no specific intent to kill, under the láw he would not be guilty ... of an assault to kill.”

In reversing the trial court, this Court said:

“To constitute the crime of an assault with intent to murder or kill ... a specific intent to take the life of the person assaulted must be shown.”
# # *
“Where the offense can be committed only by doing ‘ a particular thing with a specific intent, it may be shown that at the time of doing the thing charged the accused was so drunk that he could not have entertained the intent necessary to constitute the crime.’ ”

It can hardly be contended here that there was no testimony to justify giving the instruction requested by appellant. Appellant testified, without contradiction, in substance: Every time my wife would leave me I would start drinking; This time I had been drinking fifteen days with nothing to eat and no sleep; On November 3rd when I got off from work I started drinking and drank until I could drink no more; I got off at 3:30 p.m. (on the day of the assault). I went to the tavern and drank six or seven beers before going to see my wife; on the way over I stopped and got another beer; and then I bought a half pint of whiskey and drank half of it; and when I got to the house my wife sent up and got six beers and they brought that down there — and I don’t know — I drank one or two of the beers; by then I was so drunk I didn’t hardly know what was happening. I don’t remember every thing that happened.

In view of what we have said above, we conclude that the judgment must be reversed and the cause remanded for a new trial, and it is so ordered.

We have examined the other alleged errors hut find no merit in them.

Reversed.

Fogleman, J., disqualified.

Harris, C. J., and Jones, J., dissent.


author: Lyle Brown, Justice.

text:
    Paul SHIPLEY et al v. NORTHWESTERN MUTUAL INS. CO.
    5-4591
    428 S. W. 2d 268
    Opinion delivered June 3, 1968

      Charles W. Garner, for appellants.

      Barber, Henry, Thurman, MeGashill & Amsler, for appellee.
   Lyle Brown, Justice.

Plaintiffs-appellants sued Northwestern Mutual Insurance Company to recover under a medical payment provision included in Paul Ship-ley’s policy of public liability insurance. At the close of all the testimony the trial court entered a directed verdict for Northwestern Mutual. The appeal challenges the propriety of that verdict.

Paul Shipley’s policy bound the Company to pay medical bills incurred by Shipley and his passengers. The coverage was limited to $500 per person. Tn the event of any payment under the policy it was stipulated that the Company would be subrogated to any right of recovery vested in the injured persons. It was further provided that those who were so insured would do nothing to prejudice the Company’s subrogation rights.

On April 29, 1966, Shipley was involved in a collision with a vehicle driven by Eva M. Baldwin. The accident was reported to Shipley’s insurance agent. As a result of that contact Northwestern’s adjuster called on Shipley. The adjuster obtained information concerning the collision and advised Shipley to supply him with the medical bills. Shipley and the other three occupants of the vehicle, his wife and two grandchildren, were receiving medical attention. Treatment for some or all of them continued for a matter of months. When the bills would come to Mr. Shipley on the first of each month he would take them to the adjuster. Shipley seemed to be of the impression that as each bill was submitted Northwestern would forthwith supply the funds to pay it. On the other hand the adjuster understandably was desirous of garnering all the bills and disposing of the claims with final instruments of settlement and subrogation. In that connection he assured Shipley that Northwestern was not attempting to avoid its obligations under the policy.

On September 15, 1966 — less than four months after the accident — the Shipleys filed suit against Mrs. Baldwin. That filing was not made known to Northwestern or its adjuster. The attorney for the Shipleys shortly began correspondence with Northwestern’s adjuster concerning the claimed medical payments. Counsel was advised that numerous medical bills had been supplied but the adjuster had not been informed as to whether the Shipleys had been discharged from treatment; nor had the proofs of loss and subrogation agreements been executed as requested. After further correspondence between those two parties, the adjuster prepared all the forms and attached detailed instructions for their execution. Those were forwarded to the attorney for the Ship-leys with the assurance that their execution and return would result in payment of the medical claims. Those instruments were mailed on January 4, 1967. The attorney received them but elected not to have them executed and returned. A follow-up letter from the adjuster brought no response.

On February 28,1967, the case against Mrs. Baldwin was tried. The following awards were made: Paul Ship-ley, $6,602-, Novella (wife), $3.50; Terry, $275; and Karen, $65. The same medical bills forming the basis of this suit against Northwestern were introduced in the Ship-ley s-Baldwin trial.

Suit against Northwestern Mutual was filed April 26, 1967. Northwestern’s refusal to pay the medical claims under its policy was grounded on the recovery in the Baldwin case. The Company contended (1) that its insurance contract was one of indemnity, and (2) that the Shipleys violated the subrogation and cooperation provisions of the policy, thereby precluding Northwestern from recouping any payments made by it from the party at fault (Mrs. Baldwin).

In directing a verdict for Northwestern the trial court found that “the Shipleys have been paid for the medical expenses and that this company is not now obligated to pay same.” We hold the court was correct on both findings, that is, first, the Shipleys had been paid, and second, Northwestern is not now obligated to pay. Novella Shipley contends that the judgment in her favor, and against Mrs. Baldwin, for $350 was $31.40 short of her actual medical. Her individual recovery was not for medical but for physical injuries. The instructions to the jury in the Shipley s-Baldwin trial are not in this record; however, it is shown that Paul Shipley paid the medical expenses for his wife and grandchildren. Paul Shipley recovered $6,602. Having paid the medical, Ship-ley was the person entitled to recover for it. So we certainly cannot say the trial court was in error in stating that all medical payments were paid when Mrs. Baldwin paid the judgment against her. Nor is there anything in the record to show that the awards to the Shipleys were reduced by comparative negligence. To hold that Northwestern was obligated to pay the Shipleys, the court would have ignored the well established rules (1) that the object of subrogation is to prevent the insured “from recovering twice for the one harm, as would be the case if he could recover from both the insurer and from a third person who caused the harm, and (2) reimbursing the surety for the payment which it has made.” Couch on Insurance 2d § 61:18 (1966).

In the contract of insurance before us the insured and the insurance company entered into an agreement whereby the insurer would be subrogated to any right possessed by the insured to reimbursement of medical expenses from a third party, in this instance a tort-feasor; the contract contained the usual cooperation clause; and it provided that the insured would do nothing after loss to prejudice the insurer’s interest under subrogation. In view of those provisions, together with the fact that full medical compensation has been paid by the tort-feasor, Mrs. Baldwin, the Shipleys are precluded from recovering from Northwestern. See Travelers Indemnity Co. v. Cole, CCH 1967 Automobile Law Reports, § 5608 (Tenn. Ct. of Appeals, M. S., June 30, 1967); Travelers Ins. Co., v. Lutz, 210 N. E. 2d 755 (Ohio 1964); DeCespedes v. Prudence Mutual Casualty Co., 193 So. 2d 224 (Fla. 1966); Bernardini v. Home & Auto Ins. Co., 212 N. E. 2d 499 (Ill. App. 1965).

Affirmed.


text:
    Walter H. WRIGHT et ux v. Ralph MURR et al
    5-4597
    428 S. W. 2d 637
    Opinion delivered June 3, 1968

      Jeff Duty, for appellants.

      W. Q. Hall, for appellees.
   Lyle Brown, Justice.

This is a suit brought by the appellants, Walter H. Wright and wife, to establish a boundary line on the south portion of their property, plus other incidental relief. The appellees, Ralph Murr, Jim Donnohue, and Jack E. Brannon, landowners adjoining the Wrights, filed a general denial and pleaded that the cause be dismissed for want of equity. After presentation of the appellants’ case in chief, which consisted solely of Mr. Wright’s testimony and ten pictures as exhibits, the chancellor sustained a demurrer to the plaintiffs’ evidence.

The appellants purchased and took possession of a tract of real estate in Madison County on September 12, 1959. The deed conveyed all the land lying in the SE^4 of the NE14, Sec. 17, Twp. 17 N., R. 26 W. In addition it stated that the land was approximately forty acres. In their complaint the appellants claim title to all lands under fence by adverse possession for more than seven years. In February 1967 Ralph Murr and some helpers moved the fence on the southern boundary. Over the protests of the appellants they ran a new fence along the south end of the land but north of the old fence line.

During the course of the trial Mr. Wright testified to the following material facts: When he bought the land in 1959 it was entirely fenced; he bought “all that was within fence”; it was fenced “hog tight”; he immediately moved on the land and'took possession, claiming up to the fences; and his possession was peaceful and uninterrupted save one incident. In 1963 while cutting timber on the now disputed strip, appellee Jim Donnohue told appellant that the land was Donnohue’s and to stop cutting. Appellant complied. The appellant stated on cross-examination, “I told Jim’s mother that if they were their logs, I’d pay for them. If they were proven to be their logs. ’ ’

Pictures were offered during the trial to establish the old fence line and to show the changes that have since occurred. The exhibits were admitted into evidence without objection.

The question here presented is whether the chancellor erred in sustaining appellees’ demurrer to the evidence. The case of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225 (1950), states the rule as follows:

“What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question may arise either in equity cases, where the chancellor is the arbiter of the facts, or in cases tried at law without a jury, where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima f acie case. . . The minority view, which permits the trial judge to weigh the evidence is well stated in Porter v. Wilson, 39 Okla. 500, 135 P. 732.”

In Werbe this court adopted the majority view.

The chancellor erred in sustaining the demurrer. The trial court took cognizance of the weakness of appellants’ prima facie case. That fact should not necessarily be fatal. In Werbe the court states, “ . . .in many instances the plaintiff’s prima facie ease must necessarily be somewhat weak, for the reason that only the defendant himself may be able to supply details needed to complete the picture.” Also, the chancellor stressed the fact that Wright stopped cutting timber when Jim Donnohue interrupted him. Wright said, “I’ll pay for them. If they were [are] proven to be their logs.” Such a statement could just as easily be interpreted to mean that he was not conceding Donnohue’s claim but merely using discretion in having the question settled peaceably and judiciously.

Finally, the chancellor noted in his remarks 'the failure of the appellants to show identity between the tract bought and the fenced land. The complaint only alleged adverse possession, so record title was not an issue. A similar fact situation occurred in O’Neal v. Ross, 100 Ark. 555, 140 S. W. 743 (1911):

“When lots 6 and 8 were purchased by the defendants, they were enclosed, and he claimed to the fence between the property he purchased and that now owned by the plaintiff. He claimed to a lino visible and known, and his actual possession was coextensive with that boundary. The testimony on the part of the defendant shows that he took possession of the land under the claim and belief that it was his own, and has held it by adverse possession for the statutory period of seven years.”

In that case the court found the property was held to the fence line with the intention that it was the boundary rather than the description recited in the deed.

We find the appellants’ evidence did establish a prima facie case for the purpose of requiring appellees to go forward with their proof.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Leonard Ray INGLE v. MARKED TREE EQUIPMENT CO.
    5-4290
    428 S. W. 2d 286
    Opinion delivered June 3, 1968

      Giles Dearing, for appellant.

      Henry S. Wilson, for appellee.
   John A. Fogleman, Justice.

Appellant Ingle asserts that the trial judge erred in directing a verdict in favor of appellee for a deficiency judgment on a purchase money note given for a John Deere combine.

Marked Tree Equipment Company, the appellee, filed its complaint alleging the sale of a John Deere 95-B combine to appellant for $11,068.00 on October 1, 1964, and asserting that it had repossessed the implement on May 5, 1966, because of default of appellant in making payment. It was alleged that appellee made a down payment of $2,280.00 and that the time payment balance of $11,749.62 was to be made in four equal annual payments of $2,937.40, one becoming due on the first day of each succeeding December. Appellee also alleged that notice was given to appellant that the combine would be sold for $6,000.00 unless the balance of $8,812.22 was paid by May 23, 1966. It stated that it “bought” the combine for $6,000.00 on July 15, 1966, the same date it was required to repurchase appellant’s time payment note from a bank to which it had been assigned. It sought judgment for $2,812.22 and interest.

Ingle answered, alleging that he purchased this combine upon the representation by the implement company that it would fix up the 95-B combine so that it would perform exactly like the R combine he actually wanted to purchase. He denied that he was obligated to pay any insurance premiums. He further alleged:

When the combine was delivered it had larger wheels on it than usual on that type of combine and that appellant guaranteed that this combine would give him perfect satisfaction and that if he found, upon trial, that it did not perform to his satisfaction, it would not cost him anything; the failure of the combine to perform properly was reported to the implement company and that they tried to make it work but failed to do so; be then advised appellant to com© and get the implement as he could not use it and did not intend to pay for it; appellant took possession of the combine under an agreement that he would not be required to pay for it.

The defense of usury was also pleaded and recovery of a down payment of $2,280.00 was sought. By amendment, appellant sought to recover a payment of $2,937.40 and another of $936.08.

The implement company denied appellant’s allegations generally and pleaded a contractual limitation of warranties in the time sale agreement.

The verdict was directed upon conclusion of the evidence on behalf of appellee.

Appellant asserts nine points for reversal, all of which relate to matters which he contends raised factual issues for the jury. Among the points upon which appellant relies are his contentions that there were questions of fact as to material changes in his contract after he had signed it, by alteration of the stated price of the combine and by charging premiums for unauthorized insurance; as to the usurious nature of the transaction; and as to the existence of a new and substituted parol contract at the time of the first payment in which appellee made a new guarantee.

Appellee contends that actions of appellant, with full knowledge of all facts,- constituted a waiver of any alleged defenses and a ratification of the contract as a matter of law.

In considering the propriety of the court’s action we will view the evidence in the light most favorable to appellant. Even when we do so, we find that many of the allegations of his pleadings are not sustained and that the court’s action was not erroneous.

Ingle was a farmer who needed a combine for use in the harvest of 1964. Sometime prior to the harvest he met one Edwin Redd, a salesman for Marked Tree Equipment Company, on the road to Bay Village. They had a discussion in which Ingle advised Redd that he had been looking at a Case combine. Redd’s company was a John Deere dealer. They discussed prices and equipment. Ingle testified that Redd said the cost of the combine would be $9,600.00 and that it had 18-inch tires. Ingle expressed his preference for Case equipment because he had “soft ground” and doubted that the tires on the John Deere equipment were wide enough to support it on his land. A few nights later, Redd came to Ingle’s house about the matter and after a week or so in negotiations, Ingle signed a contract to purchase the Deere combine. Thereafter, when he went with Redd to see it, he told the manager of appellee, the shop foreman, and Redd that he could not use it because the tires were not large enough. They suggested the use of dual wheels, but Ingle was unfamiliar with them. Redd stated that they said they would guarantee this combine to go anywhere with an extra set of wheels. The shop foreman asked Ingle to bring them a set of rims, but Ingle suggested that they use a set he saw in the shop and now claims that they did so. They did not say anything about charging him for the wheels but went ahead and welded them. When the combine was delivered sometime before October 1,1964, the wheels and rims were brought with it, but were not attached because of highway width requirements. Ingle was shown the place for bolting them on by the employee who delivered the equipment.

Sometime after the original contract was signed, Redd came out to Ingle’s house and brought a new contract, claiming that a mistake had been made on the first one signed. Ingle signed the new document and tore up his copy of the first one as requested by Redd. Some of the writing on the new contract was done at the Ingle house where Ingle signed it. Appellant identified his signature on the contract introduced by appellee. The description of the equipment was written on the contract the way Ingle wanted it at the time he signed, hut there were not any figures as to the money terms. No mention was made of any insurance. Ingle’s copy of this contract was received by him by mail some two or three weeks later. Ingle’s wife read the contract and showed it to him, after which he called appellee’s place of business and told a secretary that he was overcharged. Redd later came out, that evening, and angry words were exchanged. Ingle protests that the contract called for him to pay $12,000.00 although the equipment had been priced to him at $9,600.00. Redd agreed to take the contract back to the manager of the company and promised that if there were mistakes, they would be corrected. The combine was delivered subsequently.

Ingle started using the combine for harvesting soy beans, commencing about October 1st. It worked satisfactorily during dry weather for about three days. Thereafter, there were rains and the combine would bog down so that Ingle was unable to use it for any full day thereafter. His Case equipment operated satisfactorily. After ten or twelve days and two or three rain showers, Ingle abandoned efforts to use the Deer combine and parked it on the hill near his house. However, he attempted to use it later, sometime in November, probably 15 times. He obtained other Case equipment and help in harvesting his crop.

Thereafter, he got notice of his December 1st payment by letter dated November 25, 1964. Still later, Redd came out. Ingle told him then that the combine would not work and that he would not pay $12,000.00 for it “until it cut beans.” Ingle expressed the desire that appellee take the machine. The following conversation ensued:

Redd: “We will have to make it work. We will have to find out what it takes to make it work or give you your money back.”
Ingle: “If yon make it work, I will pay the down payment if yon promise me the combine will work. ’ ’
Eedd: “We will have to make it work or give you yonr money back.”

Ingle made the payment on December 1st, relying on these statements by Eedd. On December 29, 1964, he also paid $765.00, the down payment which had been charged to his account at the time the transaction was closed. Subsequently, appellee’s employees came out to work on the combine several times while other combines were working. None of this work involved any attempt to correct the trouble with the wheels. Eepresentatives of the implement company told Ingle they could not put bigger wheels on the combine and never did anything to correct the wheel trouble. In June of 1965, appellee changed the battery in the combine upon the request of appellant. An employee also came out at that time to help Ingle start the combine at Ingle’s request. Frank Ingle testified that appellant attempted to use the combine in the harvest of 1965.

Insurance was not mentioned in any conversation between the parties. When Mrs. Ingle saw the contract and called the total balance to her husband’s attention, she did not notice that items for insurance premiums were included in the contract.

On the face of the time sale agreement, the following items were listed:

Delivered cash price $11,068.00
Sales tax 332.00
Total cash price 11,400.00
Total down payment 2,280.00
Balance 9,120.00
Property insurance 563.16
Life insurance 395.84
Deferred balance 10,079.00
Finance charge 1,670.62
Time balance 11,749.62

The testimony is undisputed that Ingle was credited with $1,515.00 on the down payment, so that the actual down payment charged to his account was $765.00. Thus, the actual selling price of the combine was $9,553.00.

Appellee reminded Ingle of the 1965 payment by letters dated November 15, December 7, and December 21, 1965. On the Saturday preceding the last of these letters, appellee’s manager and appellant had a conversation in which appellant stated that he was unable to pay for the machine because he was not able to combine beans with it. He went to the extent of telling what parts were broken on it and his inability to get them.

When appellee’s motion for directed verdict was made, appellant’s counsel stated that appellant was not relying' upon the first contract, but the last one (about two days before December 1, 1964) in which “they” guaranteed to appellant they would make the combine work.

A buyer may accept or reject goods which fail to conform to the contract in any respect. Ark. Stat. Ann. § 85-2-601 (Add. 1961). If the combine did not conform to the terms of the conditional sale contract, appellant was required to reject it within a reasonable time. Hudspeth Motors, Inc. v. Wilkinson, 238 Ark. 410, 382 S. W. 2d 191. By failing to take the necessary steps to reject the machine, Ingle waived any breach of warranty that might have occurred. Hudspeth Motors, Inc. v. Wilkinson, supra. Rejection must be made within a reasonable time after delivery and reasonable notice given. Ark. Stat. Ann. § 85-2-602; Green Chevrolet Co. v. Kemp, 241 Ark. 62, 406 S. W. 2d 142. Exercise of ownership by the buyer after rejection is wrongful against the seller, binds the buyer to his acceptance and constitutes a waiver of warranties. 85-2-602, 85-2-606; Green Chevrolet Co. v. Kemp, supra. Ingle was barred of any remedy unless he notified the implement company of any alleged breach within a reasonable time after discovery thereof. § 85-2-607.

There is no evidence that Ingle took any steps that could be construed as a rejection of this combine or gave notice to appellee of any rejection or of his claim of a breach until he was called upon to make his payment two months after delivery. The trial court was justified in holding that this action was not within a reasonable time after delivery or after discovery of the breach. Ingle’s payment of the December 1st payment and of the down payment on December 29th were inconsistent with any rejection of the equipment.

Appellant contends, however, that his actions were justified by Redd’s promise that appellee would make the combine work before the time the 1964 payment was made and it is this agreement upon which appellant relies, according to the statement by his attorney. In the first place, there is no evidence that Redd had any authority to make any such agreement. A salesman has no implied authority to modify a contract for sale of goods. American Sales Book Co. v. Whitaker, 100 Ark. 360, 140 S. W. 132. One dealing with an agent is bound to ascertain the nature and extent of his authority and cannot trust to mere presumption of authority or the assumption of it by the agent. Dixie Life & Accident Ins. Co. v. Hamm, 233 Ark. 320, 344 S. W. 2d 601.

Furthermore, appellant’s actions are not consistent with a revocation of acceptance based upon these representations as allowed by § 85-2-608. Hudspeth Motors, Inc. v. Wilkinson, supra. His acceptance was not based upon these assurances that any non-conformity would be cured as required by the statute. His duties with reference to the combine were the same as in case of rejection, i.e., he could not exercise ownership over the equipment. Employees of the company did work on the equipment thereafter having nothing to do with the condition about which Ingle complained, at Ingle’s request. An employee was sent to change a battery in the combine and to help Ingle start it in June, 1965, in response to a request by Ingle. Although appellant admits that appellee’s representatives told him repeatedly that they could do nothing about the wheel or the condition, he attempted to use it in the harvest of 1965. This was certainly inconsistent with any rejection or revocation of acceptance.

Actually, the evidence shows that the contract price was not raised, as it appears to have been less than $9,600.00. Appellant’s making payments under the terms of the contract and exercising acts of ownership over the equipment after he had full knowledge of the contract terms are certainly inconsistent with his present contentions as to any rights arising out of any unauthorized items in the contract, either as to insurance or contract price. As such, they constituted a ratification of the contract. Teare v. Dennis, 222 Ark. 622, 262 S. W. 2d 134.

Appellant’s contention as to usury depends entirely upon the inclusion of charges for insurance and his contention that the contract price was increased from $9,600.00 to $11,068.00. We have demonstrated the fallacy of both arguments. If appellant’s position is incorrect as to either of the contentions, the contract would not be usurious.

Appellant also contends that there was error in allowing interest on the judgment from its date because the time sale contract included interest to December 1, 1967. This contention was not asserted in the .trial court and cannot be considered on appeal. Panich v. McLendon, 241 Ark. 576, 409 S. W. 2d 497; Old American Life Ins. Co. v. Williams, 241 Ark. 250, 407 S. W. 2d 110; Planters Lumber Co. v. Wilson Company, 241 Ark. 1005, 413 S. W. 2d 55.

The judgment is affirmed.