text:
    Baston v. Davis.
    5-1666
    318 S. W. 2d 837
    Opinion delivered November 17, 1958.
    [Rehearing denied January 12, 1959]

      Bernard Whetstone and Joe B. Hurley, for appellant.

      J. Hugh Wharton, for appellee.
   J. Seaborn Holt, Associate Justice.

There is involved here an alleged breach of a lease of real property for a filling station and parking lot in El Dorado, Arkansas. On April 11, 1953, the Rileys, owners of the property, entered into a written lease agreement with appellees here, the Davises (hereinafter referred to as Davis). This lease was to run for a term of ten years at a monthly rental of $300, with an option of renewal for another ten year period. The lease further provided: “Sec. 5. Lessees shall have the right to sublet any part or all of the premises, and shall have the right to assign this lease. . . . Sec. 7. This agreement shall extend to and be binding upon the heirs, administrators, executors and assigns of all the parties.” ' On May 21, 1955, Davis sold a bulk sales (oil and gas) business to appellant, Bastón, and on that same date Bastón took possession, including possession of the lease property here, under an assignment by Davis of the above lease of the Rileys to Davis, and Davis quit paying the rental. This assignment was as follows: “For value received we hereby sell, transfer and assign the within lease and all rights and privileges thereunto belonging, to Lloyd C. Bastón, dba Bastón Oil Company, El Dorado, Arkansas, this May 21, 1955.

Eldon A. Davis

Toyee G-. Davis

dba Davis Oil Company

Witness: Douglas A. Ward”

It was stipulated that Davis paid the rental until June 1; 1955, and Bastón paid it from June 1, 1955 until December 20, 1956, when he abandoned the property after having paid for the time he had occupied it.

By another agreement made on May 29, 1957, between the Rileys and Davis, Davis admitted liability to the Rileys, the original lessors, and permitted the Rileys to re-lease the property in. an effort to minimize the damages. The Rileys did re-lease one part of the property to a grocery company for $150 per month, and another part to Mr. Sanders for $100 per month, for terms of 4% years under each lease, with each lease expiring at the same time. These leases were to extend to within 21 months of the expiration date of the original ten year Riley-Davis lease.

The present suit was filed by the Rileys against Davis only. This complaint alleged, in effect, the execution of the original lease between'the Rileys and Davis, its assignment by Davis to Bastón, that Bastón defaulted after paying the rental for 18 months, alleged execution of the two above leases to minimize damages, and (appellant’s abstract) “that on May 21, 1955, Davis sold and assigned said lease and all rights and privileges thereto to one Lloyd C. Bastón, d/b/a Bastón Oil Company, and that Bastón entered upon and took possession of said property and began paying the rental to the plaintiffs and accepting the benefits and privileges of said lease and became in privity of estate with plaintiffs under said lease; that the lease provided the right to assign or sublet all or any part thereof; that in accepting said assignment and the benefits and privileges, Bastón assumed all the responsibilities to the plaintiffs; that shortly after the execution of the lease between Riley and Davis, Eldon A. Davis sold and assigned to Toyee G. Davis all his right, title and interest in Davis Brothers Oil Company, including the said lease, and said Toyee G. Davis assumed all liability of said company; Bastón is a necessary party to this suit in order that a complete determination of the issues herein may be had; prays that Bastón be made a party.” Davis answered with a general denial of all matters not admitted and further alleged “that the deficit during the period of these two leases above would be $2,800 and that after the expiration of these two leases that there would be 21% months remaining to the end of the original lease to the defendants, during which liability would accrue in the sum of $6,450; Rileys prayed to have judgment in the amount of $10,550,” and in a cross-complaint prayed that should, he, Davis, be found liable for any amount that he recover from Bastón an identical amount. Bastón answered with a general denial of any liability and specifically pleaded the statute of frauds as a defense.

The cause was brought to trial, and at the close of all of the evidence the court directed a verdict in favor of the Rileys against Davis for $5,175 and a judgment for Davis against Bastón for this same amount. The judgment contains this recital: “After the plaintiffs and the defendants had concluded their evidence, the third party defendant, Lloyd C. Bastón, moves the court to direct the jury to return a verdict in his favor, but same is, by the court, overruled. Thereafter the third party defendant presented his evidence and at the conclusion of all the evidence, the plaintiffs move the court to dismiss their cause of action against defendant Eldon A. Davis, which is granted and defendant Eldon A. Davis moves to dismiss his cause of action in the cross-complaint against the third party defendant, Lloyd Bastón, which is granted.

Whereupon the plaintiffs move the court to direct the jury to return a verdict in their favor against the defendant, Toyee G. Davis, in the amount of $5,175 and the court being sufficiently advised in the premises grants said motion, and thereupon the defendant, Toyee G. Davis, moves the court to direct the jury to return a verdict in his favor against the third party defendant, Lloyd C. Bastón, in the amount of $5,175, and the court being sufficiently advised in the premises grants said motion and at the direction of the court the jury returns from the box . . .” the above verdicts.

Bastón alone has appealed, and for reversal says: “Court erred in refusing to direct verdict for Bastón at the conclusion of Davis’ testimony; court erred in directing verdict for the plaintiff (Davis) against Bastón. ’ ’

There appears to be little if any dispute as to material facts. We have concluded in the circumstances that the court was correct in holding that Bastón was bound for the remaining unexpired term of the original lease of the Rileys to Davis from the time he took possession of the property under the written assignment of said lease from Davis to him. The evidence shows that he received, accepted, and kept in his possession this assignment lease and operated under it for 18 months, although it is conceded he did not sign this assigned lease. Davis testified: “I sold out — I sold the Davis Oil Company to Lloyd Bastón, and I assigned him these leases, not only this lease here of Dr. Riley’s but a lease on the bulk plant and a service station on the Smaekover Highway, and two other service stations. . . . Mr. Bastón mailed me this lease here and said I had failed to sign the assignment to him, Mr. Bastón; and I sent it back to him, and he has had the lease all this time, and I haven’t even had a copy of it.”

The rule appears to be that where a person accepts an assignment of a lease he enters into a privity of estate with the original lessor, and becomes personally liable for the rents, (32 Am. Jur. 320, Sec. 374) and that liability continues despite the fact that the assignee abandons the premises, as Bastón did here. Bastón’s acceptance of the written assignment and performance under it, we hold, was sufficient to make him liable for the rents without regard to the statute of frauds, and that his abandonment of the property did not relieve him from a liability for the remainder of the term. The annotator in 70 A. L. R., page 1103, under the title, — Rent — Liability of Assignee of Lease, — uses this language: “The abandonment of a leasehold by the assignee of the lessee, without any reassignment and without the consent of the lessor, does not relieve the assignee from liability to the lessor for rent accruing for the remainder of the term.” In support of this rule a large number of cases are cited from many jurisdictions, among them that of Chicago Attachment Co. v. Davis Sewing Machine Co., 25 N. E. 669, from the Supreme Court of Illinois. There that court held: “Headnote 1. The assignment of a lease whose unexpired term is longer than a year is within the purview of Rev. St. 111. c. 59, Sec. 2, which provides that no action shall be brought ‘upon any contract for the sale of lands, tenements or hereditaments or any interest in them for a longer term than one year, unless such contract or some note or memorandum thereof be in writing.’ 2. The fact that the assignee, by parol, of a lease takes possession of the demised property, pays rent for a time and is recognized by the lessor as his tenant, constitutes such an execution of the contract of assignment as takes it out of the statute of frauds. 3. The assignee of a lease who has abandoned possession without divesting himself of his title is liable for rent thereafter accruing under the lease. . . .” In the body of the opinion the court said: “The lessee is liable to the lessor both by virtue of privity of estate and privity of contract. We understand that the liability of the assignee to the lessor or reversioner is by reason of the privity of estate, which, by the assignment, has been transferred from the lessee to the assignee. The fact of actual possession is frequently of vital importance, as affording a link which, in connection with the further fact such' possession is derived from the lessee, will raise the presumption that there is privity of. estate between the party in possession and the lessor, or even estop such party from denying such privity, but, after all, it is the privity of estate which imposes the liability. . . . So long as it continued to be owner of the lease estate, and retained the legal title. thereto, and was entitled to immediate and actual possession, such legal title drew to it the constructive possession, and it was still assignee of the term, and responsible as such.”

We have concluded, however, that the court erred in refusing under appellant’s objection to submit to the jury the fact question as to the reasonableness of the rental value of the property in question during the remaining years of the lease term and what amount of damages Davis would be entitled to recover under proper instructions. It was the duty of Davis to use all reasonable efforts to minimize the damages he sustained. The evidence failed to show what Davis did with the property from December 20 to the following May, when the property was re-let for $50 per month less than the $300 per month lease contract rental. We approved the following instruction, in a situation such as here, in LaVasque v. Beeson, 164 Ark. 95, 261 S. W. 49, “The court further instructs the jury that it was the duty of the plaintiffs, when they learned that the contract had been breached, to use all reasonable efforts to minimize the damage which they may have sustained, and, if they failed to do so, the jury should take that into consideration in assessing the amount of damages sustained by the plaintiffs on account of said breach of contract.” For the error indicated the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    E. P. Bettendorf & Company v. Kelly.
    5-1657
    317 S. W. 2d 708
    Opinion delivered November 17, 1958.

      Leffel Gentry, for appellant.

      Shaver, Tackett <& Jones, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a Workmen’s Compensation case. Melvin Kelly suffered a heart attack and died while working for the appellant, E. P. Bettendorf & Company on April 25, 1956. The Workmen’s Compensation Commission made an award to the appellees, who are the widow and children of Melvin Kelly; the Circuit Court affirmed the Commission’s award; and appellant prosecutes this appeal, urging only one point for reversal, to-wit: “The decedent, Melvin Kelly, did not sustain an accidental injury arising out of his employment”. This assignment requires a brief review of the evidence and a discussion of the applicable rule of law.

Mr. Kelly, aged 43, was engaged in driving nails into pallets (boards) when he collapsed. Dr. Shelton (the local physician of the appellant) testified that Mr. Kelly had been suffering for some time with chronic nephritis (kidney ailment), and also with hypertension (high blood pressure); and that physical exertion by a person suffering from hypertension increases the heart’s burden and hastens a heart attack. The death certificate signed by Dr. Shelton stated that Mr. Kelly died from a coronary infarction. When Mr. Kelly collapsed at his work, Dr. Shelton was called immediately, had the patient taken to the hospital, had oxygen administered; but all to no avail. It was Dr. Shelton’s opinion that Mr. Kelly died enroute to the hospital.

On this testimony, and other of a similar nature, the commission made an award of compensation for Mr. Kelly’s death. The Referee used this language in his opinion, which was affirmed by the full Commission:

“A study of the evidence in this case taken together with the medical testimony shows, in the opinion of the Referee, that the claimant had a pre-existing condition which taken together with the work load that the claimant was undertaking on the date of his collapse and death resulted in his collapse on the job in the course of his employment. The Referee is further of the opinion that the evidence shows that the claimant’s work was a causal connection in the claimant’s death. The evidence shows that the claimant was a hard worker and that he had worked on numerous occasions doing over-time work and this taken together with the amount of work that the claimant had done in the past and his collapse on the job while attempting to do the work before him on that date, made his collapse and death accidental injury arising out of and in the course of his employment.

In bringing the case to this Court, appellant’s counsel contends that anyone could have known that a person suffering from high blood pressure would have a heart attack if such person engaged in over-exertion; and so (reasons appellant’s attorney) Mr. Kelly’s death was not accidental but consequential due to his disease and Ms over-exertion. Iii an effort to avoid the effect of our holding in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, appellant uses this language :

. “The testimony of. the-very witness called by the claimants in this case to establish that Kelly died as the result of a heart attack, a contributing cause of which was the work which he. was performing, also indisputably establishes that the. heart- attack was not- unforeseen or unexpected, but, on the contrary, in light of the fact that he was suffering from hypertension and nephritis, that the occurrence of a heart attack was not only ex-pectable and foreseeable, but was entirely probable. ’ ’

We cannot follow appellant in the conclusion urged. Every time a mortal is born everyone knows that some time the mortal will die, so the death of a mortal is never unforeseen or unexpected in the light of human existence. But just when the death will occur and under what circumstances, is certainly unforeseeable and unpredictable. So it was with the heart attack of Mr. Kelly in the case at bar: no one could tell when it would occur. He was engaged in a line, of work, he was exerting himself by the driving of nails into the pallets, he collapsed: his death was, therefore, accidental and within the scope of his employment.

The unanimous opinion of this Court in the case of Bryant Stave & Heading Co. v. White, supra, is directly in point:

“In reference to the term ‘accidental injury’ it seems apparent that the adjective ‘accidental’ refers to and modifies the noun ‘injury’, and does not refer to the cause of the injury. There is no statutory requirement that the cause of the injury itself must have also been an accident. What the statute says is that the injury itself must have been accidental, that is, unforeseen and unexpected. . .

“Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”

Our case of Bryant Stave & Heading Co. v. White, supra, is in accord with the great weight of authority. In Vol. 19 NAACA Law Journal, p. 34, there is a lengthy review of our case, concluding with the statement that the holding in the Bryant Stave case is in accordance with the majority rule. There is this significant concluding sentence to the NAACA article, written in May, 1957: “May the few States that still adhere to the minority rule have the courage to reverse ■ themselves and restore justice to injured workers — and we predict that at least one of the minority States, Michigan, will soon join the majority. . .” This language was a real prophecy because in Sheppard v. Michigan National Bank, 348 Mich. 577, 83 N. W. 2d 614, the Supreme Court of Michigan on June 10, 1957 reached the same conclusion that we had reached in Bryant Stave & Heading Co. v. White, and cited our case and agreed with our holding. We continue to adhere to the holding in Bryant Stave & Heading Co. v. White, supra. The Commission was correct in making the award; and the Circuit Court was correct in affirming the Commission.

Affirmed.

       The same argument was made before the Commission, and in its opinion the Commission used this language; “We think the argument advanced by counsel for respondents is worthy of note and comment. As set out hereinabove, counsel for respondents argues that the death of deceased, under circumstances then extant, was not unexpected. This argument rests on the undisputed factual situation in this case that no fortuitous event brought about the death of decedent, nor was decedent, at the time of his death, exposed to any conditions of employment not usual or customary. Then counsel for respondents contends that the death of deceased, coming when it did and as it did, could not be considered to be an unexpected death when it is taken into account that ailments from which deceased suffered coupled with usual exertjon, would reasonably result in death. Thus, according to counsel, instant case does not become a compensable one within the rule expressed in Bryant Stave & Heading Company v. White, ... In that case the court said, among other things, ‘That an injury is accidental when either the cause or result is unexpected, or accidental, although the work being done is usual or ordinary.’ ”

       In 20 NAACA Law Journal p. 32 there is a review of the Michigan case.


author: George Rose Smith, J.

text:
    Tolbert v. Samuels.
    5-1668
    317 S. W. 2d 715
    Opinion delivered November 17, 1958.

      Douglas Bradley, for appellant.

      Frierson, Walker S Snellgrove, for appellee.
   George Rose Smith, J.

On August 19, 1957, the appellee obtained a temporary restraining order which enjoined the appellants, labor representatives, from picketing a construction job in Jonesboro. On final hearing the chancellor dissolved the temporary injunction but held that there was no competent evidence to support an award of damages for its wrongful issuance. The appellants contend that the court should have awarded them substantial compensatory and punitive damages.

The record is large, but only a few salient facts need be stated. McDaniel Brothers Construction Company, a partnership which was also engaged in the plumbing business under the trade name of Central Plumbing Company, was originally the general contractor and the plumbing contractor for the construction job at Jonesboro. In July of 1957 McDaniel Brothers brought suit against these appellants, to enjoin the picketing that was then in progress. The application for a temporary injunction was heard on July 18 by Chancellor Lee Ward, who refused to interfere with the picketing except to a very limited extent.

After having failed in their effort to halt the picketing, the McDaniel brothers ostensibly sold their plumbing department to the appellee Eleanor Samuels, who was an employee in that department. On August 19 Mrs. Samuels filed her present complaint, which alleges the same matters that were asserted in the earlier case but does not disclose that the plaintiff acquired the plumbing subcontract from McDaniel Brothers. On the same day, without notice to the defendants, the verified complaint was presented to Chancellor W. Leon Smith, who issued a temporary restraining order. When the matter was later heard on its merits Judge Smith ruled that the injunction had been wrongfully obtained, as the plaintiff was in privity with the McDaniels and was bound by their litigation. This appeal is from the court’s refusal to allow damages.

■ We find no merit in the appellee’s cross-appeal, by which it is contended that the injunction was not obtained wrongfully. On the direct appeal we must reluctantly agree with the chancellor’s conclusion that the appellants offered no competent evidence to sustain an award of damages against the appellee and her bondsmen. One witness testified that the bargaining position of the labor unions was practically destroyed by their inability to picket, but there is no evidence at all by which we could attempt to determine the pecuniary loss that resulted from this injury. That damage of this kind may be hard to prove in dollars and cents does not justify our reaching into the air for a figure that would represent only an unsupported guess on our part. The burden was on the appellants to prove' the amount of their damages. Alf Bennett Lbr. Co. v. Walnut Lake Cypress Co., 105 Ark. 421, 151 S. W. 275.

In seeking to prove certain expenses that the unions are said to have incurred as a result of the injunction, the appellants offered only a memorandum of figures prepared by the witness Mowrey. The chancellor correctly held this memorandum to be inadmissible, for it was a synopsis of information gathered by Mowrey from various records and canceled checks of the unions. The records themselves were the best evidence and should have been produced. Wigmore on Evidence (3d Ed.), §§ 1179 and 1532. The appellants also sought reimbursement for their attorney’s fees in connection with the dissolution of the injunction, but under our decisions this expense is not recoverable. McDaniel v. Crabtree, 21 Ark. 431; Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S. W. 2d 1017. Nor can punitive damages be recovered in the absence of an award of actual damages. Kroger Gro. & Baking Co. v. Reeves, 210 Ark. 178, 194 S. W. 2d 876.

Doubtless the appellants were entitled to nominal damages; but the chancellor awarded them their costs, and in an equity ease, where the costs have béen properly assessed in the trial court, nominal damages are not allowed on appeal for the sole purpose of charging the appellee with the costs in this court. Campbell v. Southwestern Tel. & Tel. Co., 108 Ark. 569, 158 S. W. 1085; Reader Railroad v. Green, 228 Ark. 4, 305 S. W. 2d 327.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Louallen v. Miller.
    5-1669
    317 S. W. 2d 710
    Opinion delivered November 17, 1958.

      Ben M. McCray, for appellant.

      Glenn G. Zimmerman and William G. Fleming, for appellee.

      Terrall, Rawlings & Boswell, amicus curiae.
   Paul Ward, Associate Justice.

This appeal deals with the annexation of a small parcel of land to the town of Bryant. The petition for annexation, signed by a majority of the property owners affected, was approved by the circuit court over the objections of appellant and his wife who are affected property owners.

Appellants’ grounds for urging a reversal will be classified and discussed under three separate headings. One. The lands sought to be annexed are not contiguous. Two. The lands proposed for annexation are not suitable for that purpose under the rules announced in Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891. Three. There is no substantial evidence to support the judgment of annexation by the circuit court.

One. There is, we think not only substantial but clear and convincing evidence to support the trial court’s finding that the land proposed for annexation is contiguous to the town of Bryant. It is admitted by appellants that the land touches the corporate limits of Bryant along a north and south line for 150 feet. The parcel of land proposed for annexation (hereafter referred to as “the land”) is very small and is in an irregular shape. The plot shows the said 150 feet wide (from north to south) strip extends west from the west corporate limits for a distance of 634 feet, and that adjoining said strip at the southwest corner is another irregular parcel of land which extends west 250 feet and south 450 feet. It is also shown that there is a blacktopped road (running west from and being a continuation of Fourth Street) across “the lands”. There appears no reason why it is not practicable for the present town and “the land” to some day become a unity. In the Vestal case, supra, it was said: “In all cases, however, where actual unity is practicable legal unity should be ordered as promising the greatest aggregate of Municipal benefits”. In the cited case it was held that Little Rock and Argenta (now North Little Rock) were contiguous although they are divided by the Arkansas River which (then) conld only be crossed via two bridges and small boats. See also: Garner v. Benson, 221 Ark. 215, 272 S. W. 2d 112. The case of Wild et al. v. People ex rel. Stephens, 227 Ill. 556, (Ill.) 81 N. E. 707, cited by appellants as holding to the contrary is not in point because it is based on a statute which we do not have in this state.

Two. In the Vestal case, supra, the court, after mentioning the two grounds relied on for a reversal, made this statement: “Before considering them (the two points) directly, we will state what we conclude from the many authorities to be the correct rule to guide in determining an application for annexation”. The court then set forth (at pages 323 and 321 Arkansas Reports) five examples or conditions affecting annexation. It is important to note that these five examples or conditions are not conjunctive but disjunctive. In appellants’ designation of points and in the argument they have apparently relied on each example or condition as a separate ground for reversal. It seems clear to us however that it is not encumbent upon appellees to meet the burden imposed by all five of the conditions or examples. In other words, “the ]and” may be considered as suitable for annexation if appellees’ application and proof comply with either one of them. We think this requirement has been met.

Although “the land” has not been divided into lots and blocks, it appears they are susceptible of such divisions; they furnish a suitable abode for the four families now living there and could be used by others; the town has recently approved a sizeable bond issue (two in fact) for improvement of the water system, and this service is needed and can be used by those living in the proposed annexation; a serviceable road or street has already been constructed as before mentioned, and; it appears that the lots, as stated in the Vestal case, supra, “. . . are valuable by reason of their adaptability for prospective town uses”. The land is not used for agriculture or horticulture and it is not shown to be valuable for that purpose only.

There is much testimony showing that there are a great many vacant lots in the town of Bryant, and great stress is placed on this fact by appellants. Although the existence of these vacant lots is a circumstance which might have been weighed by the trial judge, it has never been considered controlling by this court. In the case of Fowler v. Ratterree, 110 Ark. 8, 160 S. W. 893, annexation was approved although, as the court said, there was “much vacant and unimproved lands already within the limits”.

We are aware that from .the v'ery nature of this kind of a case there will often be occasion for a diversity of opinions and that, for that reason, much must be left to the good judgment of the trial court. The statutes under which this proceeding was instituted. (Ark. Stats. § 19-301 et seq.) appear to be designed to that end. Section 19-302, among other things, says the court shall grant annexation if it is satisfied the prayer of the petitioner is right and proper. Sanction was given to this view in the recent case of Cantrell et al. v. Vaughn, 228 Ark. 202, 306 S. W. 2d 863, decided by us November 4, 1957, Vol. 102 L. R. 760-.

Three. In view of what we have already said it is obvious that there is substantial evidence to support the judgment of the trial court. It is well established by the decisions of this court that the findings of the trial court in annexation cases must be given the same weight as are given to the verdict of a jury, and that such findings must be sustained if supported by substantial evidence. See: City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 433; Walker v. City of Pine Bluff, 214 Ark. 127, 217 S. W. 2d 510; Burton v. City of Fort Smith, 214 Ark. 516, 216 S. W. 2d 884; Marsh v. City of El Dorado, 217 Ark. 838, 233 S. W. 2d 536, and; Garner v. Benson, 224 Ark. 215, 272 S. W. 2d 442.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Anderson v. Parker.
    5-1674
    317 S. W. 2d 721
    Opinion delivered November 17, 1958.

      B. Ball and Spencer & Spencer, for appellant.

      G. G. Eollensworth, for appellee.
   Sam Robinson, Associate Justice.

In 1947, Nettie Hatridge Parker executed her will. In 1953 she married the appellee herein, Doyle E. Parker. She died March 26, 1957, and appellant, Barney Anderson, is the sole beneficiary under her will. Pie has appealed to this Court from an order of the probate court allowing Parker curtesy in the estate of the deceased.

Ark. Stat. § 61-229 provides that curtesy shall be assigned the same as dower. Section 62-704 provides that if dower be not assigned to the widow within one year after the death of her husband, or within three months after demand made therefor, she may file in the court of probate a petition for allotment of dower.

On June 18, 1957, Parker made demand upon Anderson for the allotment of curtesy. The demand was addressed to Anderson as. executor. On September 5, 1957, a petition for assignment of curtesy was filed in probate court by Parker. On September 24th Anderson filed a motion to quash service, alleging that the notice was addressed to his attorneys, and he appeared specifically and only on the motion. On October 14th Anderson filed a motion to dismiss the petition for curtesy because the petition was filed September 5th, which was less than three months after demand for curtesy had been made on June 18th. On October 22nd Anderson demurred to the petition for curtesy, alleging that the demand was on the executor, and, further, that the petition did not allege that the Parkers had a child born alive to them.

On November 4th there was a hearing on the petition to dismiss and there was a finding by the court that the petition was refiled September 25th, which was more than three months subsequent to the notice given on June 18th. Also on November 4th the court made a finding that although the notice was directed to Anderson as executor, it was served on him personally and it is not necessary in order for curtesy to attach that a child be born to the marriage. The court overruled the demurrer. On November 4th Anderson filed a response to the petition for assignment of curtesy, without saving the point on the question of proper service. But even if Anderson had preserved his objection to the court’s refusal to quash service, he could not prevail on that point, because of the court’s finding that Anderson was actually served individually.

Appellant’s second contention, that a child must be born alive to the husband and wife before curtesy will attach, is without merit. Our statute establishing the right of curtesy, Ark. Stat. § 61-228, is a part of Act 313 of 1939. Section 5 (Ark. Stat. § 61-232) of the Act provides: “The purpose of this measure is to give a surviving husband the same interest in the deceased wife’s estate as a widow now has in the estate of her husband, so far as Section 7 of Article 9 of the Constitution permits.” Certainly it is not necessary that a child be born alive to a husband and wife before the widow is entitled to dower.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Walker v. State.
    4903
    317 S. W. 2d 823
    Opinion delivered November 24, 1958.

      Skillman & Fitshugh, for appellant.

      Bruce Bennett, Atty. Gen. and Thorp Thomas, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Thomas Walker, was charged by Information with the crime of First Degree Murder. The case went to trial and the jury returned a verdict of guilty, fixing Walker’s punishment at death in the electric chair. The cause is here on appeal. Appellant contends that the evidence was insufficient to sustain the conviction, and that a verdict of acquittal should have been directed by the court.

On March 9, 1957, around 9:30 p. m., a Saturday night, J. W. Orman, while on duty at the Cates Esso Station in West Memphis, was killed by a shotgun blast, fired by a Negro man, during an attempted holdup. Mr. and Mrs. Marvin Smith witnessed the slaying. Mr. Smith was inside the station, using the telephone, and his wife was sitting in the car in front of the station. Both heard the intruder say, “Stick them up,” and Mr. Smith testified that the murderer had a double barrelled shotgun. The man was wearing an old felt hat, pulled down over his face. They stated that the murderer was a Negro, but were unable to identify appellant as the perpetrator of the crime. Following the report of the killing to officials, Arkansas State Trooper Bobby Sanders, with two other officers, went to the station, obtained a description of the suspect, and then drove south on Hulbert Boad. After obtaining information from a young-colored boy named Peals, who had observed a man running across a field, next hiding in a ditch when a car passed, and then running- straight down the highway toward Hulbert, the officers drove on to Hulbert, and State Trooper Weaver walked down the railroad tracks toward Memphis. The officers heard a car start on a dead-end road at the edge of Hulbert, and watched it proceed to the Hulbert Boad and turn south. Sanders testified that, judging from the sound of the starter, they considered the car to be an old model Buick or Pontiac, with a defective muffler, and observed that the left tail light was dimmer than the right. The next day, upon locating the car driven by appellant, it was found that such car was an old model Buick, with a defective muffler, and that the left tail light was dimmer than the right. Leroy Brown, a farm employee, employed by L. L. Biggan, testified that as he was leaving the Biggan barn, located at the intersection of Fletcher Lake Boad and Dixon-Yates Boad, around 12:30 or 1:00 a. m., on Sunday morning following the shooting, a man carrying a gas siphoning hose and a shotgun, caught up with him. They engaged in small talk, and parted at the intersection of Bock Boad and Fletcher Lake Boad. Brown testified that appellant “looks pretty well” like the man he saw on the road, but would not positively identify him. John Tolbert Clemons, also an employee of Biggan, testified that about sunup, he got up to hook up a pair of mules, and observed an “old model, sort of blue looking, might have been green, I -took it to be blue, old model car setting side the road.” From the testimony: <£Q. Was anybody by the car? A. Looked like a gentleman off from the car, sorta stooped over, off from the car. Q. Which way was the car headed? A. The way the road-run; south like, Q. Away-from you? A. -Yes-, sir. Away from.me-. Q. .How did you say the gentleman, was? - A. -Looked like- he. was sorta bent over, away from the car, sorta stooped over.” He testified that later, a colored man, driving the blue car, passed the barn and stopped at the home of William Bradford, another employee of Biggan. According to his testimony, the driver of the car walked back np toward the barn, and talked with Biehie Taylor, another employee, about finding work. Clemons identified Walker as the stranger seeking work. Bradford testified that appellant stopped at his house and asked if he (Bradford) could let him have any .gas or money. Walker then inquired about getting work, .and was told that he would have to see “my boss man.” He further testified that Walker parked his car where it could not be seen by people coming down the Hulbert Boad. L. L. Biggan testified that Walker asked him for work. When told that none was available, appellant went across the field to the home of James Williams, likewise a tenant on the Biggan farm. Biggan, who had heard about the killing earlier that morning, drove to West Memphis, and notified officers of Walker’s presence on his farm. In the meantime, according to witness Williams, Walker came to his home and asked Williams to fix him something to eat. Before the latter could finish preparing the meal, the officers arrived and took Walker into custody.

In another phase of the investigation, Lieutenant Charles Duncan of the West Memphis Police department, testified that he searched the immediate vicinity around the station for clues, and found footprints leading into a field just west of the West Memphis road and the service station. The footprints led to an open field that borders Hulbert Boad and went as far as Bowen Airfield (where Peals saw the man running). The tracks were followed to the Hulbert Boad. About five hundred yards from the point where the tracks started, Duncan found an empty 12-gauge shotgun shell. This testimony was corroborated by Captain Romines of the West Memphis Police Department.

After taking Walker into custody at the home of Williams, appellant was transported to the City Hall in West Memphis by two of the officers, while the others stayed and searched for the shotgun. It was finally located, buried at the side of the road, lying in one of the gulleys, being covered lightly with dirt, and a burned piece of fence post, and near the place where Tolbert had noticed the parked blue car, and the man bending over. A search of the automobile revealed a piece of hose and a gas can in the back of the car. A shotgun shell was taken from appellant’s possession at the City Hall. As reflected by the evidence, Captain Romines and Lieutenant Duncan talked to appellant at the West Memphis City Hall around 10 o’clock on the morning of the arrest. His oral statement to them was to the following effect. After stating that his name was Thomas Morris, he changed it to Walker, and stated that he lived in Blytheville . . . had been in West Memphis a couple of days, after getting lost ... he got lost between Osceola and Blytheville, taking a wrong turn . . . that the automobile he was driving, and the shotgun, belonged to Lilly Daniels, with whom he was living in Blytheville ... he identified the shotgun as the one he brought from Blytheville . . . around 9 o ’clock Saturday night, he was on a street where there were a lot of Negroes, and negro “honky tonks” . . . he overheard one say there had been a killing . . . that somebody had been shot with a shotgun . . . lie got scared, because he had the shotgun in the car, left, and drove away (to the area which constituted a part of the Niggan plantation) . . . that during the night he stayed around the car, walking up and down the turn row to keep warm . . . the next morning, he buried the double barrelled shotgun beside the road in the ditch, because he didn’t want to get caught with it . . . that after burying the shotgun, he went to a colored boy’s house on the plantation, parked his car, went down and asked a white man for a job . . . that he then went to another colored boy’s house to try and get breakfast (the home of Williams, where he was arrested).

The shotgun, expended shell, and loaded shell, all properly identified by the officers, were sent by Captain Nomines to the Federal Bureau of Investigation at Washington, with a request for a laboratory examination to determine if the expended shell had been fired from that particular shotgun, and if there was any relation between the expended shell and the loaded shell. Marion E. Williams, ballistics expert, and an employee of the Bureau for 19 years, conducted the examination of the gun and shells, and testified as follows: As to die markings, of the loaded shell and the expended shell, Williams testified that they were stamped from the same machine, though that did not necessarily mean that they came from the same box. According to his testimony, many thousands of shells are stamped with the same marking, “Since there are 25 in a box, this same marking might appear in any number boxes of shells. * * * Q. Could have come from the same box, but that is not necessarily true? A. Could have, yes.” Williams testified that two test rounds of ammunition were fired through each barrel of the shotgun sent to him, and he then went into minute and interesting detail as to the manner in which it is determined whether a particular shell was fired from a particular gun. This explanation was implemented by enlarged photographs, showing the markings on the head of the shell, caused by the breech face of the gun. He testified that the expended shell sent to him (which had been found in the field) was fired in the right barrel of the shotgun, and stated that this conclusion was reached from many points of comparison. Although vigorously cross examined, Williams was quite emphatic and positive in this statement. His testimony was impressive and authoritatively related, and was, we think, potent testimony.

Appellant points out that the evidence is circumstantial. Yet, circumstantial evidence has long been recognized by the law as sufficient to sustain a conviction. Osburne v. State, 181 Ark. 661, 27 S. W. 2d 783, Jeffer son v. State, 196 Ark. 897, 120 S. W. 2d 327, Smith v. State, 227 Ark. 332, 299 S. W. 2d 52. While parts of the testimony failed to link appellant with the crime, because of the inability of witnesses to make identification (testimony of the Smiths and Peal), and some other testimony, standing alone, was of but little value, it was certainly established that appellant was near ■ the area in which the murder was committed ... he was without money and apparently in need of funds (testimony of William Bradford), which could have been his motive for attempting robbery . . . Or-man’s slayer used a double barrelled shotgun . . . Walker had such a weapon in his possession at the time . . . he went out into the country and spent the night walking back and forth on a turn row, which was unusual, since he had been in town for two days ... he went to the trouble of burying the shotgun ... a siphoning hose was found in the car he was using (which ties in with the testimony of Leroy Brown), . . . the shotgun shell in his pocket was of the same brand, gauge, and color as the expended shell — and the expended shell, found not too far from the scene of the shooting, had been fired from the gun in Walker’s possession. In the Osburne case, supra, Justice Smith, speaking for the Court, said:

“But it may be doubted whether the State relied upon circumstantial evidence alone in the instant case. It is true that no witness who testified in the case saw the killing, but numerous statements of appellant herself relating thereto were offered in evidence, and the inferences deducible therefrom were of an incriminating character. The inference is fair and reasonable from appellant’s own admissions that she must have known how her husband met his death, and her improbable and untrue statements in regard thereto support the conclusion that she was a party to his murder.”

No evidence was here offered on behalf of appellant, and'the- testimony of the officers as' to the oral statements made by Walker to them, stands uncontradicted and unexplained. This testimony constitutes, persuasive evidence in support of the conviction. Even if we consider appellant as an ignorant neer-do-well, obsessed by-fear, still bis actions are totally inconsistent with innocence ; bis story too unlikely for credence.

The court did not err in refusing to direct a verdict of acquittal, and the evidence, under numerous holdings of this Court, was sufficient to sustain the verdict rendered. We have examined the record, and find no reversible error.

Affirmed.

William J. Smith, J., not participating.

       Only one set of prints was found. According to the testimony, the field was wet and soggy.

       The officers made casts of the prints, which were approximately the same size and general appearance of Walker’s shoes; however, according- to Captain Romines: “We didn’t think the casts were good enough, due to the condition of the ground, to definitely or positively identify the tracks as having been made by any particular shoe.” Captain Romines also testified that some of the prints by the road were measured, and that the first print, from the heel to the next heel, was 6Y2 feet, and the next 5% feet, indicating that whoever made the prints was traveling fast.

       This shotgun shell, like the expended one, was a blue, Peters 12-gauge shell.

         A double barrelled shotgun with wire wrapped around the handle.

       The car was turned over to Lilly Daniels four days later when it was ascertained that it belonged to her.

       Qualifications are as follows: “I have a Bachelor of Science degree, which I received prior to going to work for the Federal Bureau of Investigation. Since my employment there, I have studied under instructors who have made their life work firearms and ammunitions, too, that type. And, in different firearms and ammunitions plants, studying the method of manufacture and studying ammunitions, things of that type. I read various books and periodicals on the subject of guns, examinations. _ Made many examinations on my own in the Federal Bureau of Investigation laboratory. And have made examinations in several hundred cases and presented the evidence in courts in several jurisdictions throughout the United States. * * * Q. Would you tell the jury what your teaching experience is? A. Well, since being assigned to the Federal Bureau of Investigation laboratory, I have participated in numerous schools, both in Washington and throughout the United States, designed to train police officers and other men in this profession in the handling of evidence, particularly as it relates to firearms, ammunition, things of that type.”

       “This photograph is a photograph made through a comparison microscope. It is, I will explain that, a comparison microscope is actually an arrangement whereby two microscopes are put side by side, or two microscopes. Then we place on the left hand stage, ordinarily place the evidence shell, which in this case is Plaintiff Exhibit No. 9. On the righthand stage, place the specimen which was fired in the laboratory, they are situated side by side on the stages of the microscope. By optical means the images of the two primers are brought together in one single eyepiece in the instrument. As you look through the eyepiece, you see a portion of Plaintiff Exhibit No. 9, which is the evidence shell, and a portion of the test shell, through the microscope. It is possible by a mechanical arrangement of the microscope to move the shell to the right, left, up, down. It is possible, under the microscope, when arranged in the comparison microscope, you see through the microscope as a split field. This line in the center is caused by the split in the field. As you look at the photograph for this set-up, the left side of this photograph or the left as you see it, is a portion of the head of the shot shell in the area adjacent to the firing pin impression on the primer, enlarged 50 or 60 times. That area, portion on the right, my right, your left, is a portion of the head of the shot shell which was fired in the laboratory in the right barrel of the shotgun. These markings that seem to pass across the line from the head of one shell to the other are points used for the purpose of identification. Those markings are caused by the breech face of the gun.”


author: J. Seaborn Holt, Associate Justice.

text:
    Thomas v. Barnett.
    5-1682
    318 S. W. 2d 154
    Opinion delivered November 24, 1958.
    [Rehearing denied December 22, 1958]

      Ike Murry, for appellant.

      W. J. Hulsey, McAlester, Okla., for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Carl Thomas, and appellee, Yiola Barnett, are.the parents of Sharon Sue Thomas, a little five year old girl. They were divorced in Oklahoma and the District Court of Pittsburg County Oklahoma gave the father (appellant) exclusive care and custody of Sharon Sue. On an appeal by the mother to the Supreme Court of Oklahoma (Alford v. Thomas, 316 P. 2d 185), the child’s custody was, on October 1, 1957, given to her “until after a conclusive showing- and judicial determination have been made as to her unfitness and that by reason thereof the best interest of the child required that she be placed in the custody of someone else.” Thereafter, on November 12, 1957, upon another hearing before the Pittsburg County District Court, appellant (father) again asked for the child’s exclusive custody and his prayer was granted. The judgment contained these recitals. “Wherefore, witnesses are sworn and examined in open court, they being Captain Bob Oliver, Lt. Elmer Durant and Jess Henson of McAlester Police Department; Jack E. Dale, Court Clerk of Pittsburg County, Oklahoma; Mrs. Yada Lawson; Hon. Jay P. Farnsworth, Municipal Judge of McAlester, Oklahoma; Frances M. Powell, Director of Public Welfare in Pittsburg County, Oklahoma; Mrs. Oleta Mitchell, M. K. Barnett and the plaintiff. And the cause having been concluded and the court being sufficiently advised, finds that the defendant is the mother of three children, to-wit, Warren Johnston, age 12 years, Linda Kay Barnett, age 10 years and Sharon Sue Thomas, age 4 years, each being by a separate father; that said defendant has been, during the period of time starting August 25, 1945, and ending April 11, 1957, involved in nine divorce actions filed in this court; that defendant, for a period of time starting at the latest in the year 1950, has been an unfit person to have the care, rearing and custody of minor children; that she has received fraudulent funds from the Department of Public Welfare in the amount of $2,248.00 which she has not repaid; that defendant has abandoned her children to the care and custody of oth- ■ ers; she stands at this time convicted of contempt of this court for disobeying the order of the resident judge, W. A. Lackey; that she bears a bad reputation for morality and she is personally addicted to bad language, to lewd association with various men; that she is a person of violence and one who uses vile and opprobrious language in public. The court finds that said defendant, between February 8, 1955, and March 31, 1957, has been convicted of three separate criminal offenses in municipal court in the City of McAlester, Oklahoma; that she now has custody of the minor child, Sharon Sue Thomas.

“The court further finds that under date of October 18, 1957, the two older children of defendant were adjudged dependent and neglected children based upon jury verdict now final in the County Court of Pitts-burg County, Oklahoma, and that under the order of said County Court, defendant .has been deprived of the care and custody of her two older children, Warren Johnston and Linda Kay Barnett. The court finds, upon evidence submitted herein, and upon evidence submitted on March 26, 1957, that defendant is an unfit person to have the custody or right of visitation of said minor child, Sharon Sue Thomas, and that it is not for the best interest of said child to be in the custody of defendant; that by reason of the emotional instability and bad habits and temperament of the defendant, it is for the best interest of the child, Sharon Sue Thomas, that said child be placed in the custody of someone else. The court finds that since the birth of Sharon Sue Thomas, her father has conducted himself properly, that he has acted as both father and mother to said child; that he has cared for said child on practically all occasions except when said child was in the custody of the Oklahoma Baptist Orphanage at Oklahoma City, Oklahoma, for a period of-nine months under court decree, and when said child was in- divided custody by order of this court, all until on or about the 9th day of January, 1957. The court finds that on January 9th, 1957, at the suggestion of various public officials, judicial officers, welfare agencies and church groups, plaintiff agreed to the. placement' of' his minor - child ■ in the home of a respectable and childless couple in,- Oklahoma .City, where she remained until the decree of the Supreme Court aforesaid, during which time said child was well cared for; the court further finds that said child at this time is not well cared for and that her health and welfare is in jeopardy by virtue of the type and character of her custodian and her relatives; that were it not for the fact that plaintiff has no home nor female relatives to care for said child, he would be a fit and proper custodian for said child. Until such time as the proper court determines the person or institution to have custody of said child, plaintiff should have her custody.” Following the above judgment appellee refused to obey it and removed the child to Little Rock, Arkansas.

The present action was brought on January 13, 1958, in Pulaski Chancery Court by the father (appellant) to enforce the above Oklahoma judgment of the Pittsburg County District Court. On February 21, 1958, following a trial, the Pulaski .Chancery Court entered a decree holding: . . . “that the conditions and circumstances upon which the judgment of the District Court of Pittsburg County Oklahoma was. based have changed and the defendant is entitled to the custody of her child and it will be to the best interest of said child that she be placed in custody and control of defendant. ’ ’ This appeal followed.

For reversal appellant contends: “1. Appellee failed to show a change of conditions since the Oklahoma judgment or any material facts existing at the time of the judgment which were unknown to the Court. 2. The Oklahoma judgment is entitled to be enforced under the full faith and credit clause of the United States Constitution.”

We agree with both of appellant’s contentions. We said in the very recent case of Coder v. Coder, 226 Ark. 478, 290 S. W. 2d 628, “We have repeatedly held that a decree of another state fixing the custody of a child is final on conditions then existing, and should not be changed thereafter by a decree of a court of this state unless on conditions altered since the decree of the other state, or on material facts existing at the time of the decree of the other state bnt unknown to that court, and then only for the welfare of the child, (citing many cases) . . . All of these cases, and many others, also hold that the welfare of the child must be considered. ’ ’

Since coming to Little Rock appellee has been working. She leaves Sharon Sue with her father and mother. She testified: (appellant’s abstract) “We have a four room apartment with two bedrooms. We have one bed in each bedroom. The little boy sleeps on the divan in the front room and Sharon sleeps with me. My mother and father sleep in the other bedroom. My brother and his wife are there temporarily and they sleep in the front room. My brother is a cab driver and he had to move in with us when he lost his job. There is plenty of room in the apartment ... ” The testimony showed that appellee, her father, mother, brother and sister-in-law all drank intoxicating liquor in the apartment. “The court: All of you drink in that family, you and your wife and your son and his wife? A. (appellee’s father) Not excessive.” For most of the time since coming to Arkansas eight people have lived in the crowded apartment. Appellee is not now and it appears has never united with any church and does not attend church. She has never taken, or sent, Sharon Sue to church or Sunday school. It appears certain from the evidence that Sharon Sue has had no religious training. Appellee testified: “Q. Did she (Sharon) attend Sunday School one single time? A. We have not yet, but I don’t know where to go.” We do not attempt to detail all the testimony, it suffices to say that after a review of the entire record we have concluded that the preponderance thereof shows no such change in conditions as would warrant awarding the custody of this little girl to its mother.

The decree is reversed and the cause remanded with directions to award Sharon Sue’s care and custody to her father (appellant) in accordance with the judgment of tlie Pittsburg County District Court of Oklahoma, to which judgment we must, and do, give full faith and credit.

William J. Smith, J., not participating.


text:
    Whitaker & Co. v. Sewer Improvement Dist. No. 1 of Dardanelle, Ark.
    5-1644
    318 S. W. 2d 831
    Opinion delivered November 24, 1958.
    [Rehearing denied January 12, 1959]

      Spitzberg, Bonner, Mitchell & Hays and S. L. White, for appellant.

      Williams & Gardner, for appellee.

      Goodier & Parsley, amici curiae.

   Ed. F. McFaddin, Associate Justice.

This appeal involves matters of Sewer Improvement District No. 1 of the City of Dardanelle, Arkansas (hereinafter called “District”), occurring at various times from 1936 up to the present. A chronological statement, though lengthy,- may serve to an understanding of the points presented on this appeal.

1. The District was organized in 1917 under the Municipal Improvement District Statutes then in effect (see §§ 20-101 et seg. for the present statutes). In 1918 the District sold $32,500 of its 6% bonds, secured by mortgage of the assessed benefits. The bonds were payable serially and annually from 1918 to 1939. Whitaker & Company (who, along with Roy A. Dickie, will hereinafter be referred to as “Appellants”) became the owner of some, if not all, of the bonds issued by the District. The maturing bonds and interest appear to have been regularly paid until 1928, when the District defaulted.

2. In November 1936 Whitaker and Company, on behalf of the bondholders, filed complaint against the District in Case No. 2856 in the United States District Court for the Eastern District of Arkansas (which case and Court are hereafter referred to as “Federal case” and “Federal Court”). The complaint was to obtain judgment for debt, to foreclose the mortgage, and for other relief. In October 1937 the Federal Court entered a decree awarding judgment to the plaintiffs and appointing a Receiver for the District to foreclose in the State Court the District’s lien on delinquent assessments. A portion of the judgment became owned by R. A. Dickie. The Federal Court appointed D. A. Love as Receiver of the District. Other Receivers were substituted by Federal Court order over the years, but we use the term “Receiver” to designate the person acting under the Federal Court orders.

3. In 1939 a suit was filed by the Receiver in the Tell Chancery Court to foreclose the District’s lien for delinquent assessments against each parcel of land in the District. This was Case No. 1522 in the said Chancery Court, and will be hereinafter referred to as the “State case” and the “State Court.” That case was styled on the docket of the State Court as, “D. A. Love, Receiver, Sewer Improvement District No. 1 of Dardanelle, Arkansas, Plaintiff, v. Delinquent Lands, Defendants.” Foreclosure decree was entered in the State case in 1941 and sale ordered. We will subsequently refer to this as “the 1941 foreclosure.” At the sale by the Commissioner of the Court, all parcels not sold to other parties were sold to the District. The report of sale of the Commissioner in Chancery was approved by the State Court, and the Commissioner in Chancery was directed to issue deeds to purchasers after the time for redemption had expired. The Commissioner in Chancery died, and there is no record of any deeds being issued. The original file of proceedings in the State Court has been lost; but it is apparent from the docket entries, record entries of proceedings, and by other evidence, that most of the parcels of land in the 1941 foreclosure suit were sold to the District. No disposition of any of the parcels seems to have been made until the decree here challenged.

4. For many years after 1941 the matters of the District lay dormant or semi-dormant in both State and Federal Courts, although some interlocutory orders were made in the State Court, as well as in the Federal Court. At various times Receivers were substituted by the Federal Court in the place of D. A. Love; and other interlocutory orders were made; but the recital of any of these is not essential to the issues here. The effect of Act No. 79 of the 1933 Arkansas Cfeneral Assembly was not called to the attention of the Federal Court for many years. Then in 1956 in the Federal case, the Court appointed the Commissioners of the District, “to proceed in good faith and with all reasonable speed to liquidate the assets of the District. . . .”

5. In 1956 Whitaker and Company and R. A. Dickie intervened in the Case in the State Court and alleged: (a) that the judgments rendered by the Federal Court in the Federal case in their favor remained unpaid, and with interest, amounted to approximately $42,000; (b) that the unpaid and unforeclosed benefits did not equal said judgment; (c) that the District has property which it acquired in the 1941 foreclosure in the State case; (d) that said property should be sold and proceeds applied on the $42,000 claim; and (e) for all other relief. This intervention stirred the District and the Commissioners to action. The Commissioners (Webb, Snyder, and Keenan, as named in the Federal Court order, supra) filed their pleading in the State case, pointing out: that many property holders had been willing to pay delinquencies as soon as the legality of the 1941 foreclosure suit in the State Court could be determined; and that the question was whether in the light of said Act No. 79 of 1933 a Federal Beceiver could foreclose in the State Court in the place of the Commissioners of the District. The Commissioners expressed a desire and willingness to proceed as soon as, and in the manner, directed by the Court. Other pleadings were filed by various intervenors and amici curiae.

6. There was a trial in the State Court on the various issues; and documents were introduced showing various orders and proceedings in both State and Federal cases during the many years intervening from 1936 to the present. The recitation of all of this would serve no useful purpose. On March 17, 1958 the learned Chancellor rendered the decree here challenged on appeal. In that decree the Chancellor of the State Court said:

“A matter of prime concern at this time is the determination of the validity or invalidity of the foreclosure obtained in the name of the Beceiver. The issue is presented to the court upon the petition of the Bepresentatives of the judgment holders in Federal Court who contend the title to the foreclosed lands is already in the District and this court should direct a commissioner to prepare proper deeds to the district and then subject the lands of the district to the satisfaction of their judgment.

‘ ‘ The Commissioners of the District ask that the entire foreclosure proceeding be declared a nullity and that this court set forth instructions Iloav to marshal the assets of the District.

“It is apparent that some past commissioners of the District have by word and action led the owners of delinquent property to believe that the foreclosure proceeding was void and should be disregarded, and it is more than just a possibility that such action together with the disregard of the provisions of Act 79 of 1933 caused the chancery court of Yell County to hold the execution of deeds in abeyance.”

And again the Chancellor said:

“The decree of the Yell Chancery Court has been on record since 1941. The subject matter was within the jurisdiction of the court. The owners of the delinquent land knew that the taxes had not been paid. No attack was filed in either court asking the removal of the Receiver. The Receiver collected some delinquencies and executed proper receipts and releases. To hold the Receivership void would be to penalize those taxpayers who were trying to pay what they knew they owed. Certainly their payments to the Receiver were valid extinguishment of the taxes levied against them. Every act of the Receiver was pursuant to his authority emanating from the United States District Court; and in this foreclosure action had the added authority of being within the jurisdiction of the Yell Chancery Court.

“This Court, therefore, holds that the Receivership was a valid receivership and the judgment of the Yell Chancery Court a valid judgment. Without relying in any manner upon any argument based upon whether or not the Yell Chancery Court judgment can be properly attacked at this late day in this matter this court finds that the foreclosure was and is a valid foreclosure.

“At the same time this court finds that the commissioners of the District should be substituted as parties plaintiff and stand in the place of the Receiver in this action (Chancery No. 1522); that the commissioners shall compute the delinquencies against the lands involved in this action with interest at the rate of 4% per annum and cause notice of such delinquent amounts and the delinquent property to be published in the Dardanelle paper for 3 consecutive weekly issues notifying all interested parties and persons that owners of the delinquent lands can and may redeem the same by paying the delinquency with accumulated interest within 90 days from the date of the first publication of such notice.

“The Commissioners of the District are hereby directed to proceed to collect the assets of the District including the delinquencies hereinabove referred to and in an orderly manner proceed to administer the affairs of the district to the end that whatever amounts are available to pay to creditors will be speedily made available for that purpose.”

7. Under the said Decree there were other provisions wherein the Commissioners were directed to proceed in a manner which intervenors disliked; and from that decree the intervenors (Whitaker and Company and R. A. Dickie) bring this appeal, making three assignments, as follows:

“1. The Court erred in not ordering the issuance of deeds to the District of lands sold it at the foreclosure sale not redeemed within five years.

“2. The Court erred in fixing the rate of interest at 4% instead of 6% per annum on the delinquent assessments as provided in the judgment Jan. 10th, 1941.

“3. The Court having upheld the validity of the foreclosure sale, erred in failing to direct the Commissioners to use sound judgment in disposing of properties for liquidation of debt.”

The District as appellee says in its brief in this Court:

“The sole question bothering Commissioners is whether or not the Foreclosure Decree of the Chancery Court of Yell County, entered on the 10th day of January, 1941, is of such validity that title to real property passed under and in accordance with it will divest the former owner of all right and claim which he may have had and invest the new owner with a. good and indefeasible, fee simple title.

“This question turns on whether or not the foreclosure suit brought solely in the name of D. A. Love, Receiver, for the Sewer Improvement District has any validity in light of Section 20-1120, Arkansas Statutes of 1947 (Act 79 of the General Assembly for the State of Arkansas for the year 1933) and the decisions of this Court interpreting that Act. ’ ’

In the amici curiae brief filed on behalf of the City of Dardanelle, there is the argument that the 1941 foreclosure decree is completely void.

Having stated the chronology and the points on appeal, we proceed now to our decision.

I. The Effect The Chancery Court Gave To The 1941 Foreclosure Decree Of The State Court. A court of equity is a court of conscience: a forum wherein justice is done, sometimes stripped of technicalities and red tape. A court of equity should be as alert to afford redress as the ingenuity of man is to cause situations to develop which call for redress. In one case we said:

“A court of conscience must keep the granted relief abreast of the current forms of iniquity. We should never naively refuse relief . . . simply because there is no similar instance of such ... in any of the books.” (Renn v. Renn, 207 Ark. 147, 179 S. W. 2d 657.)

In the case at bar the court of equity wisely considered the relative positions of the various parties and rendered a decree that does substantial justice to all.

The appellants contended in the lower Court: (a) that the 1941 foreclosure decree was valid; (b) that the District owned the land that was sold to it in the said foreclosure sale; and (c) that the Commissioners should immediately sell the land and pay the appellants’ claim. The appellants also alleged in their intervention, “. . . that the assessments remaining unpaid in said Sewer Improvement District, all of which are delinquent, if collected, would not pay even one-third of the judgments; and that the only manner in which Roy A. Dickie will ever receive the amount to which he is entitled is by the plaintiffs, that is, the District, obtaining title to the various tracts of land which have been sold to the District and not redeemed within the time provided by law.”

We find no substantial evidence in the record to support the copied allegations. Evidently the appellants meant, by the copied allegations, to state that with the District owning the foreclosed property and with no assessments thereafter collected on said property, then the assessments remaining unpaid on the other property would not pay the appellants’ judgments. But under the order of the Chancery Court here appealed, the Commissioners must collect all delinquent assessments on each parcel of property sought to be redeemed, together with interest from the date each assessment was due until it is paid. That is to say, the Commissioners calculate not only the assessments that weré involved in the 1941 foreclosure, but all subsequent assessments. The adding of these subsequent assessments, together with interest, will materially change the situation from that alleged by the intervenors, as above copied. If any parcel sold to the Receiver (District) in the 1941 foreclosure sale is not so redeemed within the limited time stated in the decree here challenged, then the Commissioners will forthwith be entitled to a deed to such property; and thereupon the Commissioners will have the right of sále. So we fail to see how the appellants can be seriously hurt under the decree that the Chancellor rendered herein.

On the other hand, appellees stated in their pleadings that some of the property holders had been advised that the 1941 foreclosure decree of the State Court was void because the Arkansas statute forbade the appointment of an outside third person as a Receiver. The appeliees ask for instructions'. Conceding only for the sake of argument that the 1941 foreclosure proceeding in the State Court could be held to be a nullity, then the unpaid and delinquent assessments involved in,that proceeding. are still due, and'all subsequent delinquent and unpaid assessments are still due; and all of these should be foreclosed. Against these assessments there could be no successful plea of limitation because the’ statute provides (§ 20-414 Ark. Stats.): “Said local assessment shall be a charge and a lien against all the real property in said District, . . . and shall continue until such local assessment, with any penalty and costs that may accrue thereon, shall be paid; . . . ” We held in Martin v. Board of Commissioners, 190 Ark. 747, 81 S. W. 2d 414, and in Lueken v. Burch, 214 Ark. 921, 219 S. W. 2d 235, that the statute of limitations does not run against the right of an improvement district (such as the one here involved) to foreclose its lien. If the entire 1941 suit had never been filed, a foreclosure could now be maintained for all delinquent assessments, penalty, and costs against each parcel of property. At some time the property owner of each tract must pay the amounts due or lose the property; so the setting aside of the. 1941 foreclosure proceeding in the State Court would not defeat payment.

The appellants, as judgment creditors, are entitled to payment — not property. The plan evolved by the learned Chancellor will produce money because of the necessity of redemption. If the property owners do not pay, then they ■ will lose their property. In Greer v. Blocker, 218 Ark. 259, 236 S. W. 2d 68, a drainage district had for many years held title to several thousand acres of land acquired by it at a foreclosure sale for delinquent assessments. We said in that case: “Also the Chancery Court should direct the Receiver to ascertain and report the wise way to dispose of the lands on hand, so that the most money may be realized therefrom; in short, the Chancery Court should direct the Receiver to undertake the liquidation of the debts of the District . . . ” In the case at bar, the Chancellor has evolved a plan which is designed to accomplish for Sewer Improvement District No. 1 of Dardanelle exactly what should be done: the obtaining of all delinquent assessments and interest thereon or title to the property that remains delinquent. So, with the exception of the interest rate — to be discussed in Topic II infra — we think the Chancellor’s decision was just and equitable in all respects.

II. The Interest Bate. The Chancery Court provided interest at 4% per annum to be paid on each delinquent assessment when any property holder sought to redeem. Since the judgment of the appellants bore 6% interest and the bonds were 6% bonds, we conclude that the., interest rate, to be charged by the Commissioners on each delinquent parcel sought to be redeemed, should be 6% per annum, so that the appellants cannot lose because of interest rate.

Who can complain at 6% per annum interest? (1) Certainly not the property holders (see City of Eureka Springs v. Banks, 206 Ark. 289, 174 S. W. 2d 947). If the property owners pay 6% per annum interest they are still receiving a most equitable consideration. (2) Certainly not the appellants. They purchased bonds that bore 6 °/o interest and looked to the assessed benefits. If the Chancery Court requires the interest rate for the redemption to be 6% per annum on each delinquent assessment from the time of delinquency until paid, then the amount received from the interest will be at the same rate as the interest on the bond issue and the judgment they hold.

We modify the decree to make the interest rate on redemption to be 6% per annum instead of 4% per annum. In all other respects the decree is affirmed at cost of appellants. The cause is remanded to reinvest the Chancery Court with jurisdiction for further proceedings.

William J. Smith, J., not participating.

       This order of the Federal Court recites in part: “It is further ordered by the Court that the Commissioners of said District, namely, Harold Snyder, Lewis A. Webb and Dan Keenan, proceed in good faith and with all reasonable speed to liquidate the assets of said District and wind up the affairs of said District to the end that the judgments in this cause may be satisfied, or so much thereof as possible; . . .”

       This 4% interest rate will be discussed in Topic II infra.

       In 19 Am. Jur. 41 (Equity § 4) this statement appears: “But the primary character of equity as the complement merely of legal jurisdiction, in that it seeks to reach and do complete justice, where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do, persisted and still persists.”

       Of course, the amici curiae claim that the whole 1941 proceeding is void; but, even so, it would not relieve the property from the'unpaid benefits as hereinafter discussed.

       Act 85 of 1925 prescribing a period of limitations for filing foreclosure suits for delinquent assessments applies only to Counties having a population of 75,000 or more; and we judicially know that Yell County does not have such population, so Act 85 of 1925 has no application.

       The language in § 190 of Act 195 of 1949 (as found in § 20-422 Ark. Stats.), in using the words, “within six months”, is directory merely. The statute that is amended (§ 7313 Pope’s Dig.) had used the word, “forthwith”; so the 1949 Act in using the words,-“within six months”, was directory and did not provide a period of limitation.

       Since the benefits were payable 4% each year until paid sufficiently to retire the bonded indebtedness, the Chancellor may have used the 4% interest rate, although his reason for using 4% interest instead of 6% is not stated.


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    Langston v. Horton.
    5-1719
    317 S. W. 2d 821
    Opinion delivered November 24, 1958.

      W. E. Billingsley & Oscar E. Ellis, for appellant.

      Claude A. Caldwell, for appellee.
   George Rose Smith, J.

This is a child custody case involving the parties’ two daughters, of the ages of ten and seven years. Temporary custody of the children was awarded to the appellant, their father, when he obtained the divorce in May of 1955. This arrangement continued in effect until the present application for a change of custody was heard in May of 1958. The chancellor found that conditions had changed and awarded custody to the appellee, the children’s mother. The appellant was given reasonable rights of visitation and was directed to contribute to the little girls’ support as long as their mother keeps them within the court’s jurisdiction.

The decree is the only part of the original divorce proceeding that appears in the present record. It recited that the defendant had entered her appearance but had made no defense. The court found that the defendant, while still married to the plaintiff, had gone through a marriage ceremony with Melvin C. Smith and had lived with him for three or four weeks. Upon this finding the court granted the plaintiff, who is now the appellant, a divorce on the ground of adultery. In the present proceeding the appellee testified that she had been told that the divorce was final and was under that impression when she married Smith. She says that she did not live with Smith after learning that their marriage was illegal. This testimony is not contradicted in the record now before us.

The appellee was not in a position to take care of the children when the divorce was granted in 1955. She left Arkansas and went with her brother to the state of Washington. The appellant attempted to show that there she lived with a man not her husband, but this proof is so inconclusive as to be hardly worthy of notice.

The appellee and her present husband, M. J. Horton, were married in March of 1956. They say that they worked in Alaska for a year to earn money with which to provide a home for the appellee’s children, if their custody could be regained. Upon returning from Alaska to Washington the couple made a small down payment upon a home, and Horton obtained employment as a mechanic. The Hortons then came to Arkansas so that the appellee could file her present petition. Horton supports his wife’s application, explaining that she is no longer able to have children and that they are anxious to have the little girls in their home.

While Mrs. Horton was away the children were cared for by the appellant. He lives with his uncle, a man of seventy-six, who stays with the children. while Langston is at work. The chancellor commended Langston for having discharged his obligation to the best of his ability, but it was the chancellor’s opinion that the children should be placed in their mother’s care rather than remaining in a home where there is no woman to look after their needs.

We are unable to say that the trial court reached the wrong decision. The appellant undoubtedly is a person of good character, devoted to his daughters, but the same things are true of the appellee, with the exception of such inferences as may be drawn from her 'void marriage to Smith. The trial judge was familiar with the case from its inception, as we are not, and had the further advantage of seeing the parties and hearing the testimony as it was given. He recalled that he had not been exactly satisfied with the original order of temporary custody, but it seemed to be the only arrangement that could be made at that time. Conditions have now changed, since the appellee is able to provide a good home for the children. Carlton v. Carlton, 223 Ark. 870, 269 S. W. 2d 313. It seems evident that the custody would have been awarded to the appellee by the original decree if the present circumstances had existed at that time. We are not convinced that the order appealed from is contrary to the children’s best interests.

In the matter of visitation, however, the decree falls short of effecting complete justice. Apparently the Hortons intend to take the children to Washington, and it is not likely that the appellant, a man of limited means, will be able to exercise there the rights of reasonable visitation that the decree provides. It should, we think, be stated explicitly that the appellant may have his daughters visit him in Arkansas for two or three weeks each summer if he will arrange for their transportation to this state, with the Hortons to bear the expense of the return trip. The appellee shall be required to give a bond to secure her duty to comply with the court’s orders in this respect. There appears to be little ill feeling between the parties, and we assume that they will be able to agree upon the exact terms of the modified decree. If not, the chancellor will enter an order consistent with this opinion.

With this modification the decree is affirmed and the cause remanded.

William J. Smith, J., not participating.


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    Ricumstrict v. Griffin.
    5-1686
    317 S. W. 2d 819
    Opinion delivered November 24, 1958

      George E. Pike, for appellant.

      Coleman, Gantt & Ramsay & E. Harley Cox, Jr., for appellee.
   George Rose Smith, J.

This is a suit by the appellee to obtain cancellation of a deed by which he conveyed four town lots in DeWitt to his stepdaughter, the appellant. The complaint alleged that the defendant had induced the plaintiff to sign the deed by fraudulently representing it to be a mortgage. The chancellor rejected the charge of fraud but found that one of the lots, Lot 7, had been included in the conveyance by mutual mistake. The decree reformed the deed by deleting Lot 7 and also impressed a lien on that lot for a debt of $149.95 that the appellee owes the appellant. Both parties have appealed.

The four lots were originally purchased in 1947 and 1948 by Griffin and his wife, who had the deeds made to themselves and to the appellant. The Griffins had built a small house on Lot 7 and had just begun the construction of a house on the other lots when Griffin’s wife died in about 1950. The appellant wanted to complete the second dwelling as a home for herself, but she was told by an attorney that she would have to have a deed to the lots to be entitled to finish the house.

The parties, who are still on friendly terms, are pretty well in agreement about the way in which the deed now in dispute came to be executed. Griffin was an illiterate laborer, somewhat addicted to drink, and after his wife’s death both he and his stepdaughter feared that he might lose his home on Lot 7 through improvidence or might someday remarry and lose it to his second wife.

The appellant consulted an attorney, who prepared the deed with a view to carrying out the parties ’ wishes. By the instrument Griffin conveyed the four lots to his stepdaughter; but he reserved a homestead right in Lot 7, with a proviso that this right would cease if he should abandon his residence on the lot for a year or if he should remarry and be divorced. The deed was signed and acknowledged by Griffin, who has abandoned his original assertion that he thought he was signing a mortgage. After the deed was executed, in 1951, the appellant finished the house on the other lot and was living there when the case was tried. There seems to be no real dissension between Griffin and his stepdaughter; we infer from the record that Griffin’s second wife may have persuaded him to bring this suit.

We think the weight of the evidence to be against the chancellor’s finding that Lot 7 was included in the conveyance by mutual mistake. At the trial both parties were easily led by questions on direct and cross examination and contradicted themselves from time to time-For example, Griffin, in response to a leading question, said that he had not intended to convey the property; but when he was asked later on if he knew that he was signing a deed to the property he answered: “Well, to be honest, I sure did know it.” The appellant testified that her attorney fully explained the effect of the deed before Griffin signed it, and Griffin refused to deny that such an explanation was made. The deed was in fact aptly worded to give effect to the admitted intentions of both the grantor and the grantee. We are convinced that it was a valid conveyance, voluntarily executed by the appellee without fraud or mistake on the part of anyone concerned.

Counsel for the appellee, citing such authorities as the Restatement of Trusts, § 44, and Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840, insist that a constructive trust should be declared in Griffin’s favor, because the parties were in a confidential relation. This, however, is not a case in which an absolute deed was made in reliance upon the grantee’s oral promise to hold the land for the grantor. Here the agreement of the parties was written into the deed itself, and it has not been shown by clear and convincing evidence that the appellant orally assured her stepfather of any interest in the land other than the homestead right that was actually reserved.

By cross appeal the appellee contends that the court erred in fixing a lien upon Lot 7 to secure the appellant’s judgment for $149.95. This sum is the unpaid balance of an unsecured loan that the appellant made to the appellee, to enable him to pay delinquent federal income taxes. It does not clearly appear that the Government had a lien to which the appellant might be subrogated, and there is no other basis for impressing a specific lien on Lot 7. The appellant’s proof entitles her to a money judgment only.

Beversed and remanded for the entry of a decree consistent with this opinion.

William J. Smith, J., not participating.


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    Freeze v. Hinkle.
    5-1673
    317 S. W. 2d 817
    Opinion delivered November 24, 1958.

      N. J. Henley, for appellant.

      Ben B. Williamson, for appellee.
   Paul Ward, Associate Justice.

A jury failed to award treble damages against appellee under Ark. Stats. §§ 50-105 and 50-107 for cutting and removing timber (alleged to be wilfully done) from land belonging to appellant. It is the contention of appellant here that the cause should be reversed because the trial court gave two instructions which were erroneous.

There is hardly any dispute over the essential facts. Appellant, T. E. Freeze, and appellee, Alva Hinkle, each own considerable acreages of timber land which have a common boundary line of approximately one-half mile. This mutual line had not been surveyed when the. timber was cut, and its exact location was apparently not known to either and certainly not known to Hinkle. On two different occasions the- employees of Hinkle entered upon Freeze’s land, at places pointed out by Hinkle, and cut and removed timber. The actual value of this timber, according to the allegations in Freeze’s complaint, was $146.20. It was further alleged by Freeze that said timber .was cut and removed by Hinkle “wilfully and without right or authority,” and judgment was prayed- for treble the actual value of said timber.

The jury returned a verdict in favor of Freeze for the sum of $94.00 -and judgment' was entered for that amount. The- only grounds designated.by appellant for a reversal are that the trial court erred in giving appellee’s requested instructions No. 3 and No. á. We will consider these grounds separately and in the order mentioned.

Instruction No. 3. By this instruction the trial court in effect told the jury it would be authorized to return a verdict for the actual value only if it found Hinkle “honestly believed, or had probable cause to believe that the timber was on his own land, and said cutting was not done knowingly and intentionally.” It is not contended by appellant that the instruction is inherently wrong, but he bases his objection solely on the ground that there is no testimony to support it. If appellant is right it was epror for the court to give the instruction. After a careful survey of the record we have arrived at the conclusion that it does contain substantial evidence to support the instruction. Appellee testified in part as follows: Q. “At the time you cut this timber, this oak and cedar, did you honestly believe it was on your land?” A. “Yes, I did.” Q. “Why did yon believe it was your land?” A. “The line didn’t go anywhere near where I thought. I was mistaken about where the corner was at.” It is noted that sometime after the timber was cut the true line was surveyed and definitely determined. It shows that the timber was in fact on Freeze’s land. It further appears from the record that appellee readily admitted cutting the timber, that he offered to pay appellant its value after the survey, and that the matter might have been settled at that time if an agreement as to the amount had been reached. It is admitted that there was nothing to indicate the true line when the timber was cut. Section 50-107 mentioned at the outset states in substance that only single damages shall be recovered in an action of this kind if it appears that the trespasser (appellee here) “had probable cause to believe that the land on which the trespass is alleged to have been committed . . . was his own.”

Considering all these facts and circumstances, together with Hinkle’s positive statements, we cannot say, as a matter of law, that he did not have probable cause to believe tbe land was Ms. In other words, we think there is substantial evidence to justify the trial court in submitting the question to the jury.

Appellant says the testimony shows positively that Hinkle could not have had probable cause to believe the land was his. This is based on Hinkle’s admission that he did not know the exact location of the line when he cut the timber. We cannot agree that appellant’s deduction necessarily follows. We think Hinkle could have honestly believed he was on Ms own land even though he did not know exactly where the true line ran. In fact it seems that the question of good faith or “probable cause to believe” could only arise where the trespasser did not know the location of the true line.

Instruction No. 4. This instruction is essentially the same as No. 3 discussed previously, except as hereafter indicated. It told the jury in effect that before appellant could recover it must find that the timber “was wilfully and intentionally cut and removed . . . and that it was not a mistake on the part of the defendant” (our emphasis). The principal objection is to that portion of the instruction which is emphasized. Appellant has not pointed out, and we fail to see, how the jury was misled by the questioned portion of this instruction. We think the jury understood that cutting timber by mistake by appellee meant the same thing as cutting with probable cause to believe he was cutting his own land.

In addition to the above appellant argues to the effect that the trial court should have instructed a verdict in his favor for treble damages because of Ark. Stats. § 54-201, but we find no merit in this argument. The above section provides in substance that anyone cutting timber on land must first have it' surveyed, and the succeeding section provides a penalty for its violation. These sections do not deal with the wilful cutting of timber or the amount of damages. It is true that Hinkle’s failure to have a survey made before cutting the' timber could, be' considered, by- the 'jury as going to the wilfullness of his- act, and the jury was so told in appellant’s instruction' No. 2. This' was all appellant was entitled to. This same question was settled against appellant’s contention in the case of Case v. Hunt, 217 Ark. 929, 234 S. W. 2d 197, at page 931 of the Arkansas Reports.

Affirmed.

William J. Smith, J., not participating.