author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Shroeder v. Johnson.
    5-2541
    352 S. W. 2d 570
    Opinion delivered January 8, 1962.

      G. Byron Dobbs and J. Sam Wood, for appellant.

      Sexton & Morgan and Charles R. Garner, Thomas A. Pedron, for appellee.
   Paul Ward, Associate Justice.

This is a highway intersection accident case. Appellant, George Shroeder, was driving east on a secondary road where it intersected Highway number 45 running north and south when his car collided with an automobile going north on Highway 45 being driven by one of the appellees, Arlene Johnson. The Johnson car was owned by her husband, T. J. Johnson, one of the appellees; appellees Billy Wayne Johnson and Mary Imogene Johnson were passengers in the car. Appellees filed suit against appellant for damages, claiming that appellant was negligent in failing to yield the right of way, in failing to keep his automobile under control and in failing to keep a proper lookout. There was a jury trial resulting in judgments in favor of appellees in the following amounts: Arlene Johnson, $2,853.23; T. J. Johnson, $790.83; Billy Wayne Johnson, $300.00; and Mary Imogene Johnson, $2,230.40.

Appellant has appealed to this Conrt seeking a reversal based on two assignments of error, viz.: One, the trial conrt erred in its refusal to direct a verdict in favor of appellant at the close of all the testimony; Two, the trial court erred in refusing to grant a mistrial based on the introduction by appellees of improper testimony. These points will be discussed in the order named after first summarizing the factual background.

Background Facts. The accident happened on December 17, 1960 about four miles south of the City of Fort Smith. Highway 45 is a principal traffic artery with a speed limit of 45 miles per hour at the intersection involved. On this occasion appellees, who frequently travelled Highway 45, were travelling north as they approached the intersection. Appellant, the owner and operator of the Downtown Hotel at Fort Smith, was driving his car east on what appears to be a secondary road. As he approached Highway 45 there were three objects on his right side: One was a stop sign, indicating that he should stop before he entered Highway 45; this sign was approximately 20 feet west of the west edge of the pavement on Highway 45. The second object was a telephone pole apparently two or three feet west of the stop sign. The third object was a rather large advertising sign apparently approximately two feet west of the telephone pole. This sign was apparently about four or five feet in length and 11/2 feet in width, hanging .parallel with the secondary road. (The information relative to these objects, their locations and sizes is taken from photographs introduced into evidence by appellees and from oral testimony in the case.)

It is the contention of appellees that they were travelling approximately 45 miles per hour (the legal speed limit) as they approached the intersection, and did not see or realize that appellant’s car was attempting to cross the road in time to stop or prevent a collision. It is appellant’s contention that he stopped before entering upon Highway 45 and this is not disputed. He further contends that before he started up he looked to his right and saw no car approaching and then he approached Highway 45 at a speed of five miles per hour, and still seeing no car to his right, he entered upon the highway; that after his car had crossed the center line of Highway 45, the front of appellee’s car struck the right front door of his car.

One. The trial court was correct in refusing to instruct a verdict in favor of appellant because, in our opinion, the testimony presented a question of fact for the jury to resolve. The jury found negligence on the part of appellant and we think the record contains substantial evidence to support its finding.

Appellant’s testimony was substantially as follows: I pulled up within four feet of the intersection and stopped and waited until two or three cars had passed, then I looked and saw no other cars in sight on Highway 45; then I started up at about five miles per hour to cross Highway 45, going not less than 10 miles per hour; when the middle of my car was across the center line of Highway 45, I saw a car coming from the south about 150 feet away; then the collision occurred. Gertrude Beers, aged 29, who was riding with appellant testified that he stopped about two minutes while two cars passed going south; that he then pulled out into the intersection; that she didn’t consciously look to see, but she believed Highway 45 was clear at the time. James D. Mickle, a civil engineer, was the only other witness for appellant. He made a plat or diagram of the intersection. He stated that Highway 45 pavement was 23 feet wide and the stop sign was about 20 feet west of the west edge of the pavement. He also stated that a person standing at the intersection could see a car coming from the south a distance of 465 feet away.

Arlene Johnson, the driver of appellee’s car testified that she was familiar with Highway 45 at the scene of the accident since she drove over it frequently on her way to work in Fort Smith; on this occasion she drove 45 or 50 miles per hour until she came to the caution sign of 45 miles per hour when she reduced her speed accordingly; when she approached the intersection she first saw appellant’s car between the advertising sign and the stop sign; at this time appellant’s car was going slowly — about five miles per hour — as it approached Highway 45, and she let up on the gas; when she was about 70 feet from the intersection and saw appellant nearing the edge of the highway without stopping, she applied her brakes and honked her horn, and then the cars collided; the day was clear and sunny. Imogene Johnson, who was in the car with Arlene, testified that when they came over the rise (about 465 feet south of the intersection) she saw appellant’s car near the stop sign approaching the intersection, and when they were within about 85 feet of the intersection she noticed Arlene apply the brakes and blow the horn, and appellant proceeded onto the highway.

From the above it appears there was a conflict in the evidence on a vital point. According to appellant, he stopped two minutes within four feet of the edge of Highway 45, he looked and saw no car in sight, and then he drove onto the highway. Arlene and Imogene Johnson said they saw appellant’s car near the stop sign about 20 feet west of the edge of Highway 45, the car was moving and didn’t stop before entering the highway. The jury had the right to believe appellees’ testimony and disbelieve the testimony of appellant, which they evidently did in this case. It appears to us there are certain facts and circumstances tending to support the jury’s judgment. Gertrude Beers who was in the car with appellant did not corroborate his testimony on the vital point, i. e., that he stopped within four feet of the highway and that he looked for traffic. Also, if the jury believed Arlene and Imogene were able to see appellant’s car even when it was 20 feet from the intersection it had a right to believe appellant could have seen appellee’s car if he did actually look south on the highway when he was within four feet of the intersection. In other words, the jury had a right to conclude appellant failed to exercise due care, either to stop close to the highway or to look for oncoming traffic, or both — a duty imposed on him under the Court’s Instruction No. 4 given without objection. In this connection, we think the following quotation from Ness v. Males, 201 Md. 235, 93 A. 2d 541, 543, is applicable:

“We have held that the statutory obligation to yield the right of way at a stop intersection, imposed upon the unfavored driver, is not discharged by a mere stop but extends to the entire passage across the favored highway, and that the favored driver using a through highway is not required to slow down at an intersection or bring his vehicle under such control as to be able to stop, upon the assumption that an unfavored driver will fail in his duty.”

Two. Appellant’s contention that the trial court erred in refusing to grant a mistrial is based on a portion of the record set out hereafter. While appellant was being questioned by appellees’ attorney on cross examination the following occurred:

BY MB. GABNEB:

‘ ‘ Q. Two questions: Mr. Shroeder, do you have a room in that hotel that is called the ‘trick room’?
“A. No.
“Q. You don’t get paid $2.00 for every date that’s kept in there?
“A. We only rent rooms, as far as the hotel management is concerned.
“Q. Mr. Shroeder, do you want to keep for your own information this rap sheet here. Just stick it in your pocket. I don’t want to even give it to the jury.”

Mr. Dobbs: “Well, if you want to be insinuating you might as well put it in.”

Mr. Garner: ‘ ‘ All right, let him read it. ’ ’

Mr. Wood: “No, let me see what it is.”

Then outside of the presence of the jury, the following occurred:

Mr. Dobbs: "Now I want to make an objection to the insinuation of counsel for plaintiff in this case about a ‘rap sheet’, and ask for a mistrial because what he has produced is something in his own handwriting. It doesn’t purport to be anything about anybody except what he wants to say.”

Mr. Garner: "That’s a rap sheet on Frankie Sue Carter. ’ ’

Mr. Dobbs: ‘ ‘ Who made it

Mr. Garner: "I did, off of the official records. That’s the woman he was married to and this is the record compiled during the course of their marriage.”

The Court: "On cross-examination, if he wants to ask about these things, but I think it’s unfair to approach it in the way he did — to leave this innuendo when nobody knows what it is.”

Mr. Garner: “ I ’ll withdraw it then. ’ ’

The Court: "And I’ll have to instruct the jury to disregard it.”

Mr. Garner: ‘ ‘ That will be all right. ’ ’

Mr. Dobbs: "We still request a mistrial, and save our exceptions.”

Thereupon the court gave to the jury the following admonition :

"Ladies and gentlemen, counsel just handed to this witness a piece of paper and referred to it as a rap sheet. Now, that paper is not being offered in evidence by counsel. It is therefore my duty to instruct you that it is incompetent, and you are to disregard the sheet having been produced or any reference having been made to it in reaching a decision in this case.”

Although appellant did not ask for a mistrial after the admonition was given to the jury, we think he has properly saved his objection. As previously set out, after the court stated he would admonish the jury, appellant said: “We still request a mistrial, and save our exceptions”. It would have been a futile thing to repeat the statement after the admonition was given. The trial court could not have been misled as to appellant’s position.

We have repeatedly held that the matter of granting or denying a mistrial lies within the discretion of the trial court. See Briley v. White, 209 Ark. 941, 193 S. W. 2d 326. At page 943 of the Arkansas Reports the Court said:

“Much latitude must be given to the trial court in handling matters of this kind, and, in the absence of a showing of abuse and discretion or a manifest prejudice to the rights of the complaining party, this court will not reverse a judgment on account of the action of the trial court.” [Cases cited.]

On the other hand, we have also held the exercise of such discretion is subject to review. See Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Hughes v. State, 154 Ark. 621, 243 S. W. 70; Kansas City Southern Ry. Co. v. Larsen, 195 Ark. 808, 114 S. W. 2d 1081; and Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428. In the last cited case, although this Court did not reverse the trial court, it did discuss subject question at length, citing numerous cases, and commented on the applicable governing rules. In so doing, the Court, among other things, said:

“There is, however, a class of cases which present argument and remarks so flagrantly prejudicial, or counsel may be so persistent in their impropriety, that the commendable efforts of the trial judge to eradicate the evil effects of them will be unavailing. In such event, then, a new trial is the only way to remove the prejudice, notwithstanding the judge may have reprimanded, or even fined, the offending attorney and positively and emphatically instructed the jury to disregard the prejudicial statements.”

In the Vaughan case, supra, the Court said:

“. . . whenever it occurs to us that any prejudice has most likely resulted ... we shall not hesitate to reverse on that account.”

In the case under consideration, as in most situations of this nature, we cannot say with certainty that the jurors were prejudiced by the reference to the “rap sheet”, but we are less sure that they were not. Definitely the manner in which the reference was made was improper, and it left open to the jury a broad field of speculation as to appellant’s character and possibly his criminal record. The admonition of the court did not tell the jury what and to whom the “rap sheet” referred, and if it had done so the prejudice probably would have been even greater.

It is therefore our conclusion that the trial court erred in not granting a mistrial, and its judgment is accordingly reversed, and the cause is remanded.

McFaddin, J., dissents as to reversal.

Ed. F. McFaddin, Associate Justice,

dissenting. I dissent as to the reversal. While I dislike the courtroom tactics about the “rap sheet”, nevertheless, I can not say that the Court’s admonition to the jury was ineffectual to remove the harm. The modest verdicts received by the appellees indicate rather strongly that the Court’s admonition did remove the harm about the “rap sheet”. Therefore, I would affirm the judgments herein.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Dr. Pepper Co. v. DeFreece.
    5-2512
    352 S. W. 2d 579
    Opinion delivered January 8, 1962.

      Frierson, Walker & Snellgrove, for appellant.

      Murphy & Arnold, and John Purtle, for appellee.
   Sam Robinson, Associate Justice.

This is a personal injury case. There was a judgment in the sum of $1,500 for appellee, W. M. DeFreece. The issue here is whether the trial court erred in failing to direct a verdict for appellants, Bob Baccus and Dr. Pepper Company, the defendants in the trial court.

Appellee, DeFreece, is the production manager of the Dr. Pepper Company at Newport. The Dr. Pepper Company, appellant here, is the Dr. Pepper Company located at Birmingham, Alabama, and it sells to local Dr. Pepper Companies such as the one in Newport syrup used in bottling cold drinks. The syrup is shipped in stainless steel barrels which along with the contents weigh about 658 pounds.

The appellant, Bob Baccus, works for the Dr. Pepper Company of Birmingham. He drives a truck and delivers the syrup to the local bottlers. On July 7, 1958, at the noon hour, Baccus arrived at the Dr. Pepper plant in Newport with 30 barrels of syrup to be unloaded. There were two men with the Dr. Pepper truck, Baccus and Sam Shellnutt. The two men took turns driving the truck, which was equipped with a sleeper cab. I. C. C. regulations require that a driver get four uninterrupted hours of sleep. When the truck arrived at the Newport plant, Shellnutt was in the sleeping compartment of the cab. Ordinarily both, drivers would do the unloading, but on the occasion in question Shellnutt had not had his four hours of sleep and Baccus therefore did not call him.

All of the employees at the Newport plant had gone to lunch except appellee, DeFreece. He had his lnnch with him, however, and went to his car and ate it. Baccus commenced to unload the truck by himself. It was not difficult for him to do this. He had unloaded it by himself many times. He had in the truck a mechanical device that let the barrels of syrup down from the bed of the truck to the unloading dock without much effort on the part of the one doing the unloading.

The mechanical unloader works in this manner: There are two metal runners that extend from the end of the bed of the truck to the unloading dock at a slope of about 45 degrees. The two runners are about two feet apart and are held together by steel rods. On each of four of the steel rods, there is a pair of steel arms extending upward. The arms are held in an upright position by strong springs and shock absorbers. When a barrel of syrup is rolled against the top pair of arms, the barrel presses them backward and down, but they exert enough resistance to cause the barrel to be let down slowly. When the barrel is free of the first pair of arms, the springs cause them to snap back to an upright position and the barrel is engaged by the next pair of arms, and so on down the runners of the unloading device until the barrel is rolled onto the unloading dock.

The following is what occurred, according to the testimony of appellee, DeFreece: After he finished eating his lunch, he returned to the unloading dock. Baccus had unloaded all except three or four of the 30 barrels. Space needed to be cleared on the unloading dock to make room for the three or four barrels yet to be unloaded. On his own initiative DeFreece helped to clear the necessary space. Then Baccus said to him, “Well, let’s get a couple more off of here and save me climbing back up there. ’ ’ The remaining barrels in the truck had been rolled up against the end of the unloader. Baccus walked to the left side of the unloading device and DeFreece went to the right side. They reached up and rolled a barrel onto the unloader. DeFreece then reached up to catch hold of the next barrel, and one of the arms of the unloader, returning to an upright position, struck him on his elbow, breaking a small chip from the hone.

Appellee claims, first, that he was an emergency employee and as such the employer is liable for negligence. The trial court refused to submit that issue to the jury, holding that as a matter of law under the evidence DeFreece was not an emergency employee of the Dr. Pepper Company of Birmingham. Secondly, appellee says that he was an invitee of that Company, and on this theory appellants are liable for negligence, and that negligence of appellants caused his injuries.

Appellants are not liable on the theory that appellee was an emergency employee or an invitee or on any other theory, for the reason that there is no substantial evidence in the record that anyone was negligent except DeFreece himself. There is nothing complicated about the unloader. Any person could look at it and see how it works. No one needs to be told that if hit hard by a. heavy piece of iron it will hurt and perhaps a hone will he broken. Jamieson v. Woodward & Lothrop, 247 F. 2d 23 (D. C. 1957). DeFreece’s injury was due solely to his. own negligence in placing his arm in a position where it would be struck by one of the arms of the unloader on the return to the upright position.

It is clear from the evidence that DePreece had seen the unloader work many times. It was shown that all the syrup shipped from Birmingham was unloaded, with an unloader such as the one in question. During a period of about eight months preceding his injury,. DePreece had signed receipts for syrup on 18 different, occasions. DePreece testified: “Now, I expect that I have seen it [the unloader] about every time that they used it, but as far as being anything like in a close-distance of it to where I could observe any of the operations of it, why I’d say that maybe I checked the-syrup half of the time or was hack around when they were unloading half of the time during that time.”

In other words, on as many as nine different occasions DeFreece had been around when they were unloading. He could not have been around where they were unloading nine times without observing that the arms of the unloader snapped back to an upright position when free of the barrel. It was no more necessary to tell him that if hit by one of the arms he might be injured than to tell him that he might be injured if hit by any other hard object.

In Tucker Duck & Rubber Co. v. Harvey, 202 Ark. 1033, 154 S. W. 2d 828, the Court said: “ ‘Something may properly be left to the instinct of self preservation and to the exercise of the ordinary faculties which every man should use when his safety is known to be involved,’ as we said in Mo. Pac. R. Co. v. Martin, 186 Ark. 1101, 57 S. W. 2d 1047. In Williams Cooperage Co. v. Kittrell, 107 Ark. 341, 155 S. W. 119, Chief Justice McCulloch quoted from 1 Labatt on Master & Servant, § 238, as follows: ‘ The master is not required to point out dangers which are readily ascertainable by the servant himself if he makes an ordinarily careful use of such knowledge, experience and judgment as he possesses. The failure to give such instructions, therefore, is not culpable where the servant might, by the exercise of ordinary care and attention, have known of the danger, or, as the rule is also expressed, where he had the means necessary for ascertaining the conditions, and there was no concealed danger which could not be discovered. ’ ’ ’

Baecus had no reason to think that DePreece would not see that which was clearly obvious and which De-Preece had been in a position to observe, according to his own testimony, more than half a dozen times.

DeFreece is in no stronger position as an invitee. Liability for an injury to an invitee must be predicated upon negligence. Kroger Grocery & Baking Co. v. Dempsey, 201 Ark. 71, 143 S. W. 2d 564.

On the invitee theory, appellee cites Restatement, Torts, § 343. But there it is said: “A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he . . . has no reason to believe that they will discover the condition or realize the risk therein.” Here Baccus had no reason at all to believe that DeFreece would not discover the condition and realize the metal arm of the unloading machine might hurt him if it struck him.

Appellee argues that the unloading machine was out of repair. There is no substantial evidence to that effect and there is no substantial evidence that if it was out of repair such condition caused or contributed to cause the injury.

Reversed and dismissed.


author: Jim Johnson, Associate Justice.

text:
    Shuffield v. Harton.
    5-2550
    352 S. W. 2d 574
    Opinion delivered January 8, 1962.

      Warren & Bullion, for appellant.

      Clark & Clark and Barber, Barber, Henry, Thurman £ McCaskill, for appellee.
   Jim Johnson, Associate Justice.

This case involves interpretation of the provisions of a farm lease.

On September 20, 1952, appellants, Dr. Joe Shuffield and Ralph R. Harrell, entered into a written lease with B. M. Hartón, now deceased, whereby appellants rented from Hartón certain lands in Faulkner County, Arkansas, for a period of five years. The lease covered the years 1953, 1954, 1955, 1956 and 1957.

The lands were primarily leased by appellants for the purpose of cultivating rice, these lands being contiguous to Cadron Creek which was then a natural source of water for use in cultivating the rice. At the time of the lease the parties did not measure the land, but the description in the lease calls for 770 acres more or less. The lease was prepared by Hartón’s attorney. It provided for the payment of $8,000 per year rental for the “cleared lands”, and the sum of $2,000 per year rental for the “woods land”. The lease treats the “cleared land” and the “woods land” as separate parcels. Five notes were executed for the annual rental payment of $8,000 per year for the cleared land, and five separate notes were executed for the payment of $2,000 per year for the rent on the woods land.

As an incentive to the clearing of the “woods land” by the appellants, the lease provided that if the lessees cleared 50 acres of the woods land in any one year, the $2,000 note given as rental for the woods land would be cancelled in that year. The lease further provided that in the event more than 50 acres of land was cleared in any one year, the excess acres over 50 could be carried forward to the cancellation of the $2,000 notes for subsequent years. In other words, the acreage of woods land cleared for credit on the $2,000 note was cumulative and could be carried forward by the lessees for credit. This point is not in dispute in the case.

Since the land had apparently been rented primarily as rice land, a paragraph was placed in the lease as follows:

7. “Now it is further agreed that if during the term of this lease the government should restrict the acreage allowed to be planted in rice the parties of the second part shall pay to the party of the first part, as annual rent on the cleared lands the following, to-wit: $20.00 per acre for all land planted in rice; and $15.00 per acre for all land planted in other crops, or available for other crops, for each year that said iiee acreage may be restricted.”

Pursuant to § 28-355, Ark. Stats., there was propounded to appellant Ralph R. Harrell certain interrogatories. Two of the questions and appellant’s answers are as follows:

“3. State how many acres of woods lands have been cleared by Lessees under that contract since the date of the contract.
“A. Approximately 205 Acres.
“4. Give the number of acres cleared each year for the years 1953, 1954, 1955 and 1956.
“A. About 40 acres in 1952, but under this lease and for 1953 crop.
“About 150 Acres in 1953.
“About 15 acres in 1954 . . .”

Appellee doesn’t contest the correctness of appellant Harrell’s conclusion as to the number of acres of woods lands cleared during the term of the lease.

Appellants paid the rental in 1953 and 1954 by paying the $8,000 notes for cleared land and by taking a credit on the payment of $2,000 notes for the woods land cleared by them. In 1955 the amount of rice which could be grown was restricted by the Government so that paragraph 7 of the contract came into effect and this brought about the dispute which has culminated in this appeal. The Government restriction also continued for 1956 and 1957. The owner claimed that, under the terms of the contract, when the cultivation of rice was restricted, the appellants became liable to him for acreage rental not only on the “cleared land”, but also lost their credit for “woods land” cleared, and became liable as well for acreage rent on all “woods land” which was cleared by them, said acreage rental to be on the basis of $20 per acre for all lands planted in rice and $15 an acre for all other lands subject to cultivation. The owner claimed that in addition to the acreage rental for all land available for cultivation in 1955, 1956, and 1957, the lessees owed the $2,000 notes for rental on woods-lands which remained uncleared. The appellants’ contention was that they were liable only for an acreage rent on the “cleared lands” and that having cleared a. sufficient amount of woods lands to completely satisfy four of the $2,000 notes and to partially satisfy the fifth $2,000 note, they were entitled to plant the cleared woods lands free of any acreage rental charge, except the balance owing on the last $2,000 note.

The parties also were unable to agree on the amount of land available for cultivation in the “cleared land”.

The lease contained a clause which provided that the lessees agreed to keep all of the lands, both the cleared lands and additional lands they might clear and put in cultivation, in good condition during the period covered by the lease. Appellee contended that the lessees had not kept the property in good condition but had allowed same to grow up in coffee beans and that there was a breach of this part of the contract and damages were sought therefor.

The trial court interpreted the contract as contended by the owner (who died during the pendency of the case and who was succeeded as plaintiff by his administratrix), and also found for the owner with reference to the amount of land available for cultivation and the damage to the land. The appellants thereupon prosecuted this appeal.

After a careful review of the record on trial de novo, we cannot say that the Chancellor’s findings in the following eight particulars are against the weight of the evidence.

1. That the land which was cleared and tillable on the date of the lease consisted of 328 acres.

2. That appellants cleared 205 acres of the “woods land” which according to the terms of the lease cleared or paid four of the $2,000 notes with 5 acres to apply as a credit of $200 on the fifth $2,000 note, leaving a balance of $1,800 due on that note.

3. That the lease provided the lessees should keep the land in good condition and in annual cultivation and that they breached this provision of the lease and that appellee is entitled to damages in the sum of $1,000.

4. That appellants paid on the rent due for the year 1955, $4,803.75, which was without prejudice to either side.

5. That no rice was planted on the original 328 acres of cleared land in the year 1955.

6. That no rice was planted on the original 328 ’ acres of cleared land in the year 1956.

7. That 89 acres of rice were planted on the original 328 acres of cleared land in the year 1957.

8. That interest at the rate of 6 per cent per annum should be paid on the unpaid amount found due for the year 1955 to run from November 1, 1955, and from November 1, 1956, on the amount found due for that year; and from November 1, 1957, on the amount found due for that year.

We cannot agree, however, with the Chancellor’s interpretation of the meaning of the words “cleared lands ’ ’ as contained in the lease. The question presented for our consideration is whether the words “cleared lands” used in the lease refer to lands cleared at the time of the execution of the lease, or do they refer to land then cleared and to be cleared in the future?

As we view this matter, paragraph 7 of the lease, which is set out above, was obviously inserted in the lease for the protection of the lessees in the event all the land could not be placed in the cultivation of rice. It provides that should the Government restrict the acreage allowed to be planted in rice, the parties of the second part (appellants) shall pay to the party of the first part (appellee) as annual rent on the cleared land the sum of $20 per acre for all land planted in rice, and $15 per acre for all land planted in other crops. The term “the cleared lands” used here is exactly the term used in paragraph 3 to identify the lands on which the $8,000 rental would be paid, and is the same term used in paragraph 4 to describe the lands for which the $8,000 note was to be executed.

The woods land was dealt with separately. The parties agreed that the woods land would be leased for $2,000 per year and notes were executed for the rent of that particular part of the farm. The contract further provided that if the lessees cleared 50 acres of the woods land the note for the woods land for that particular year would be cancelled, and if they cleared 100 acres two notes would be cancelled, etc., so that if 250 acres were cleared in the five-year term all the notes for the woods land would be cancelled and there would remain only the rent payment for the land which was cleared when the farm was rented. The contract says “if the parties of the second part do clear more than 50 acres of the woods land in any one year, they may count the excess over 50 acres cleared that year on the 50 acres required for cancellation of the rent note on the woods land due the next year.”

We have carefully noted that there was no mention made of the cancellation of the notes on the woods land in the event of government restrictions on rice. The contract merely provided for a new basis of rent on “the cleared lands”. The lease, in our view, must be interpreted in the light of the facts and circumstances as they existed at the time of the lease. At the time of the lease the cleared lands were the lands which were then cleared. Had the lease used the words “cleared or to be cleared’, the interpretation would be different.

We reach this conclusion by following the principle of law that Equity Abhors Forfeitures. Cordell v. Enis, 162 Ark. 41, 257 S. W. 375. To find contra would effectuate a forfeiture which in our view was clearly not in the contemplation of the parties. Further, it is uncontradicted that appellee, through his attorney, prepared the contract. This being true, even if the language of the contract was doubtful we would be bound to follow the well settled rule of construction that contracts so prepared are construed in the strongest manner against the party who prepared them. See: Leslie v. Bell, 73 Ark. 338, 84 S. W. 491; Ford Hardwood Lumber Co. v. Clement, 97 Ark. 522, 135 S. W. 343; Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S. W. 150; American Insurance Co. v. Rowland, 117 Ark. 875, 8 S. W. 2d 452; Gen. American Life Ins. Co. v. Schwarz, 193 Ark. 663, 101 S. W. 2d 963; Meers v. Tommy’s Men’s Store, Inc., 230 Ark. 49, 320 S. W. 2d 770; Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S. W. 2d 98.

It follows, therefore, that since the case has been fully developed we find that the appellee is entitled to receive as rent for the year 1955, $15 per acre for 328 acres, such amount to be credited with the $4,803.75 previously paid by appellant on such indebtedness, the balanee for that year to bear interest at the rate of 6 per cent per annum from November 1, 1955.

For the year 1956, $15 per acre for 328 acres with interest at the rate of 6 per cent per annum from November 1, 1956.

For the year 1957, $20 per acre for 89 acres which were planted in rice, and $15 per acre for 238 acres, with interest at the rate of 6 per cent per annum from November 1, 1957, plus the $1,800 balance owing as rent on the woods land note, with interest as provided in the note.

In addition to the rent as set out above, appellee is to receive the $1,000 damage as found by the Chancellor, which of course bears interest at 6 per cent from the late of the Chancellor’s decree.

Therefore, the Chancellor’s decree is reversed and the cause remanded with directions to enter a decree and have further proceedings in accordance with this opinion. Costs of this appeal are taxed equally.

       “Farm Lease, Know all men by these presents: That this contract of lease, made and entered into this 20 day of September, 1952, by and between B. M. Hartón, party of the first part, and Joe F. Shuffield and Ralph R. Harrell, parties of the second part, witnesseth:
      “That the party of the first part has this day leased to the parties of the second part, for the years Nineteen Hundred and Fifty-three (1953), Nineteen Hundred and Fifty-four (1954), Nineteen Hundred and Fifty-Five (1955), Nineteen Hundred and Fifty-six (1956), and Nineteen Hundred and Fifty-seven (1957), the following described lands lying in the County of Faulkner, State of Arkansas, to-wit:
      “All that of Section Sixteen (16) ; and all that part of the North Half (N%) of the North Half (N%) of Section Twenty-one (21); and all that part of Section eight (8), lying East of Cadron Creek. And all of that part of S% SW14 of Section nine (9), lying South of Cadron Creek.
      “All of the above described lands being in Township six (6) north, Range fourteen (14) West, and containing in the whole 770 acres, more or less.
      “The parties of the second part agree to pay to the party of the first part, as rent for said lands for the years 1953, 1954, 1955, 1956, and 1957, the sum of Eight Thousand Dollars ($8,000) per year for all the cleared lands, and the further sum of Two Thousand Dollars ($2,000) per year for all the woods lands, said annual rentals to be due and payable as soon as the crops thereon are harvested, and not later than November 1st of the year in which said rents fall due.
      “The parties of the second part agree to execute a note for $8,000.00 for each year covered by this lease for the cleared land, and also agree to execute a note for $2,000.00 for each year covered by this lease for the woods land, said notes to be due and payable on or before the 1st day of November of the year in which the rent represented by said notes accrues, said notes to bear 8% interest from maturity until paid.
      “Now it is agreed by and between the party of the first part and the parties of the second part that in any year in which the parties of the second part clear fifty (50) acres or more of the woods land covered by this lease, the party of the first part will cancel the note of $2000.00 given by the parties of the second part for the rent on the woods lands for that year. It is further agreed that the parties of the second part may clear and put in cultivation as inuch of the woods lands as they wish in any year covered by this lease, but credit for such improvement shall be limited and applied to the $2000.00 notes given for rent on the woods lands only, and if the parties of the second part do clear more than fifty acres of the woods land in any one year, they may count the excess over fifty acres cleared that year on the fifty acres required for cancellation of the rent note on the woods land due the next year.
      “The parties of the second part agree to keep all of the above described lands which are cleared and tillable at this time, and all such additional lands as they may clear and put in cultivation hereafter in good condition and in annual cultivation during the period covered by the lease.
      “Now it is further agreed that if during the term of this lease the government should restrict the acreage allowed to be planted in rice the parties of the second part shall pay to the party of the first part, as annual rent on the cleared lands the following, to-wit: $20.00 per acre for all land planted in rice; and $15.00 per acre for all land planted in other crops, or available for other crops, for each year that said rice acreage may be restricted.
      “It is further agreed that the parties of the second, their heirs or assigns, shall have the right, and are hereby given the right, to purchase the above described lands from the party of the first part at any time during the term of this lease at the same price offered by any other person, firm or corporation, provided the party of the first part desires to sell said lands at the price so offered.
      “In the case of failure of the parties of the second part to pay any annual rental due under this lease when the same falls due, then the party of the first part, at his sole option, and by written notice to the parties of the second part, declare all rent notes and rental for the balance of this lease due and payable at once.
      “I, Mildred J. Hartón, wife of the said B. M. Hartón, do hereby join in the execution of this contract of lease, and agree to join and cooperate in the execution of all conveyances which may become necessary in carrying it out.
      “Executed in duplicate copies at Conway, Faulkner County, Arkansas, the day and year first above written.
      /s/ B. M. Hartón
      Party of the First Part
      /s/ Mildred J. Hartón
      /s/ Joe F. Shuf field
      Party of Second Part
      /s/ R. R. Harrell
      Party of Second Part”


author: Neill Bohlinger, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Service Life Ins. Co. v. Branscum.
    5-2552
    352 S. W. 2d 586
    Opinion delivered January 8, 1962.

      Yingling, Henry $ Boyett, for appellant.

      Lightle & Tedder, for appellee.
   Neill Bohlinger, Associate Justice.

This is an action brought by the appellee, Elizabeth E. Bransoum, against appellant, The Service Life Insurance Company, to recover a sum of money due Bobby L. Hamm, who is a member of the family of appellee and admittedly covered by the policy issued by the appellant.

Bobby L. Hamm was injured in an automobile accident on March 20, 1959 when the appellant’s policy was in full force and effect. Hamm was hospitalized and the appellant paid benefits under its policy for Hamm’s hospital confinement from March 21, 1959 to May 11,1959 and also from June 8, 1959 to June 23,1959.

After July 17, 1959, Hamm, the covered member, received additional hospitalization and medical care which appears to have been a continuation of his treatment for the injuries he received on March 20, 1959. It does not appear from the record before us that the treatment was not for injuries received in the March 1959 accident.

A monthly premium of $6.50 was due on the policy involved for the month beginning July 17, 1959 and appellee sent that amount to the company prior to July 17, 1959. The appellant deposited the check but forwarded its own check to the appellee in the amount of $6.50 and advised the appellee that it had elected not to renew the policy except on the condition of certain waivers. After July 17, 1959 Hamm received additional hospitalization but the appellant declined to make any payment therefor.

Appellee thereupon brought suit in the White County Circuit Court for the sum of $728.57, penalty and attorney’s fees, for the hospitalization received by Hamm after July 17, 1959.

The first point to be resolved is: Was tbe policy in full force and effect insofar as tbe claim for tbe later bospitalization is concerned? We conclude that it was.

In Harman v. American Casualty Company, 155 Fed. Supp. 612, the rule is stated as follows:

“A contract of insurance is an agreement to indemnify tbe insured against loss from contingencies wbicb may or may not occur. When tbe contingency arises, then and only then does tbe liability of tbe insurer become a contractual obligation [citing authorities]. There then remains no ‘risk’ wbicb could be tbe subject matter of insurance. Tbe contingency having occurred, there is nothing tbe insurer can unilaterally do to alter tbe policy with respect to a loss that is already in being. All that remains is tbe determination of tbe extent of tbe damage. ’ ’

In Clardy v. Universal Life Ins. Co., 229 Mo. App. 682, 79 S. W. 2d 509, there was a question about a cancellation of an insurance policy on an anniversary date and its effect upon a pending claim. In that connection tbe court stated:

“It is provided in clause 15 of tbe policy that cancellation on any anniversary date is without prejudice to any pending claim. Such, of course, would be the law even if not expressed in the clause.” [Emphasis added]

American Benefit Asso., v. Russell, Tex. Civ. App. (1954), 278 S. W. 2d 316, states:

“Tbe agreed statement of facts reveals that tbe illness resulting in tbe bospitalization of appellee during tbe months of January and February, 1953, originated April, 1952 when tbe policy of insurance issued by appellant was in full force and effect. Therefore, under tbe terms of tbe policy issued by appellant, it could not avoid liability for such hospital expenses by cancelling tbe policy December 1, 1952 as appellee’s illness and necessary confinement in tbe hospital on account of such illness originated during the term of the policy. Under the express provision of the policy as quoted hereinabove, the association was required to reimburse the insured for the actual hospital expense incurred by appellee on account of any sickness originating during any term of the policy. It also follows under the provisions of the policy, that since the association was liable for the period of disability in issue, it could not cancel the policy and thereby defeat liability.

The rule governing the issues on this appeal was promulgated by the Court of Civil Appeals in National Life & Accident Ins. Co. v. Dove, 167 S. W. 2d 257, 259, in the following language: ‘It follows that the * * * illness found by the court began prior to the cancellation of the policy, and, therefore, constituted a claim under the policy, and was of the nature plead by appellee.’ ”

We think the case of American Casualty Co. v. Horton, Tex. Civ. App. 1941, 152 S. W. 2d 395, states the law as applicable here:

“The defendant’s second proposition is that, because plaintiff only paid premium sufficient in amount to keep the policy alive for two months after the date of the accident, he was entitled to only two months’ indemnity, or $100. To this, we cannot agree. The policy being in full force and effect when plaintiff was accidentally injured, resulting in total disability, his cause of action immediately arose, and he was entitled to recover the full amount of indemnity provided, irrespective of whether or not the policy was kept alive by the subsequent payment of premium.”

And the case of Prescott v. Mutual Benefit Health & Accident Asso., 133 Fla. 510, 183 So. 311, is very much in point. In that ease the court said:

‘ ‘ Of course, the insurer could not avoid liability for a claim which had come into being under the terms of the policy by declining to accept renewal premiums tendered after the accrual of the claim. ’ ’

We therefore conclude that the rights of the appellee accrued at the time of the injury while the terms of the policy were in full force and effect. The cause of action arose immediately at that time and the insured was entitled to recover the full amount that was due him under the policy. The appellee asked for the sum of $728.57, penalty and attorney’s fees, and that amount does not appear to be contested. We find that the court was justified in making the award for those amounts.

It is true that the appellant contends that the policy expired prior to the July hospitalization but there is no showing made that this confinement was anything other than hospitalization which resulted from the March 1959 wreck.

Having determined that the appellee is entitled to recover, we do not deem it necessary to discuss the effect of appellant’s refusal to accept the premium tendered it prior to the July expiration date of the policy.

The judgment is affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

concurring.

I concur in the affirmance of this case, but for a different reason than stated in the Majority Opinion. The case was tried to the Circuit Judge without a jury; and his findings have the force and effect of a jury verdict. It was stipulated that Mrs. Branscum mailed her check to the insurance company to pay the premium for the period beginning July 17, and expiring August 16. It was shown that the insurance company received her check and cashed it. Then, several days later, the insurance company sent Mrs. Branscum the company’s check for the same amount, and advised her that the insurance company had elected to cancel the policy.

The evidence above detailed, and other in the record, was sufficient to support a finding by the Trial Court that the insurance company had, in fact, accepted Mrs. Branscum’s check as a renewal of the policy, and that the subsequent letter with check sent by the insurance company to Mrs. Branscum constituted an attempt to renege on the contract.

Therefore, I would affirm the judgment on the basis that the evidence supported a finding that the premium had been accepted.


author: Carleton Harris, Chief Justice.

text:
    Smith v. Underwood.
    5-2562
    352 S. W. 2d 824
    Opinion delivered January 15, 1962.

      J. B. Milham, for appellant.

      Maner S Stanley, for appellee.
   Carleton Harris, Chief Justice.

This is a boundary line dispute. A. B. Smith, Jr. became the owner of a certain forty acres in Saline County by conveyance from his father in March, 1927. A country road, at one time used by the community, was located between this property and that of Smith’s neighbor to the west. Smith built a fence eight or ten feet east of the road. In February, 1958, appellees, H. O. Underwood and wife, acquired title by purchase, of two acres of land lying immediately west of appellant’s land, and thereafter, this dispute arose as to the proper boundary line. Smith instituted suit against appellees, alleging his purchase in 1927, and asserting that he had maintained a fence around the lands purchased since that time; that his possession had been adverse to all persons, and that he claimed all lands which had been under fence. The complaint further alleged that this fence had been cut by appellees, and that the latter had constructed a fence of their own on appellant’s land. The Underwoods denied the allegations, and asserted that they were record owners of the property in dispute, and that Smith had agreed to the erection of the fence which they had placed on the property. On trial, Smith’s complaint was dismissed, and the court held that the east property line was the line as marked by the fence erected by appellees. From such decree, comes this appeal.

We think the evidence establishes Smith’s claim of adverse possession to that portion of the property east of the fence that he had constructed. According to the testimony, he had built a net wire fence with barbed wire on top, with much of it attached to trees. Smith testified that he kept cattle on his land; that his fence was sufficient to hold the cattle on his premises; that he maintained the fence as repairs were needed. Appellant, 60 years of age, stated that his entire forty acres was under fence; the land had been fenced as long as he could remember, and certainly since 1932. His wife testified that to her personal knowledge, the fence had been in its location for twenty years. Several relatives of appellant likewise verified the existence of the fence for far more than seven years, and two neighbors, Lexie Jenkins and Alma G-antz, stated that they were familiar with the location of the Smith fence for periods respectively of thirteen years and twenty-two years. Various photographs, introduced as exhibits, show portions of the fence in question. There is really no contention that the fence was not in existence, though R. G. Anderson, son-in-law of the Underwoods, testified that he would not term it a fence, “It was a bunch of wire wrapped around trees that cows would walk over.” Anderson had entered into a contract to purchase the Underwood property. A survey of the property was arranged, though it is not clear whether this arrangement was made by Anderson, or another neighbor named Heath; however, appellant had nothing to do with obtaining the services of the surveyor. It would appear that the question of the proper line between Smith and Underwood arose after a survey involving the Heath and Underwood property. At any rate, after the survey relative to the boundary line between Smith and Underwood had been made, Smith was notified of the result by Anderson. L. D. Hutchingson, Saline County surveyor, who had made the survey, was contacted by Anderson, and Smith and Anderson then went to the location for the purpose of viewing the line as established by the surveyor. Stakes were set out in accordance with the survey. Anderson testified that Smith held some of the stakes while he (Anderson) drove them into the ground, and that about a month and a half later, appellant agreed that Anderson could erect a new fence in conformity with the surveyor’s findings. On the basis of this testimony, appellees vigorously contend that the parties agreed upon a boundary line; however, Anderson admitted that on the occasion when Hutchingson was pointing out his location of the boundary line, Smith complained that the survey was incorrect. He also admitted that Smith complained to him after the new fence had been built. We think this testimony falls short of establishing an agreed boundary line. Smith had no part in arranging for the survey, and was not present when same was made. Admittedly, he complained about the location of the stakes, though he said he would ' ‘ abide by what the law did. ’ ’ As previously set out, we think it was clearly established that a fence, belonging to Smith, had been in existence for a long period of time prior to the Underwoods’ purchase of their property, and appellant had consistently claimed to this fence line. It is quite difficult to determine from the testimony and exhibits appearing in the record just how far east of the Smith fence the Hutchingson line is located, but we hold that irrespective of whether the Hutchingson line was in conformity with the legal description of the properties, appellant is entitled to all that portion of the property here in litigation which lies east of the old fence erected by Smith, having established his right to same by adverse possession. The decree is therefore reversed, and the canse remanded with directions to render a decree not inconsistent with this opinion.

       The witness had made a payment, but subsequently abandoned his right to purchase the lands.


author: Ed. F. McFaddin, Associate Justice.

text:
    Evans v. McKinley.
    5-2564
    352 S. W. 2d 829
    Opinion delivered January 15, 1962.

      B. W. Thomas, for appellant.

      Wood, Ghesnutt & Smith, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellants (plaintiffs below) are patrons of Garland County School District No. 1; and the appellees (defendants below) are (a) the Directors of the said School District, and (b) the members of the Garland County Board of Education. We will refer to the parties as they were styled in the Trial Court.

The plaintiffs sought a writ to require the Directors of Garland County School District No. 1 to maintain in or near the community of “Star” a school for children of the first six grades; and the plaintiffs also sought a writ to require the said School Directors and the County Board of Education to designate a site and build a school building in the western part of the School District. After hearing the evidence, the Chancery Court ruled against the plaintiffs on both points, and this appeal ensued. For convenience, we discuss separately the two alleged causes of action.

I. Maintaining A Grade School At “Star.” Garland County School District No. 1 is about thirty miles long, east and west. Star is located in the western part of the District; Jessieville is located in the eastern part of the District; and by far the greater number of pupils of the District live in the Jessieville area. The problem is how to maintain a creditable school near Star, where there are only a few pupils. For years there had been a grade school at Star, with only one teacher who taught the six grades; but the pupils in attendance at the Star School gradually declined, so that for the years shown below there were only the following pupils:

1957 18 pupils
1958 12 pupils
1959 16 pupils
1960 12 pupils

In 1960 the School Directors discontinued the school at Star and had the pupils in the Star community transported each school day to the larger school at Jessie-ville, thirty miles distant. This necessitated that some of the children had a bus trip of nearly two hours each morning and evening; and this suit resulted.

It was shown that the school at Star for the first six grades was inefficient, both educationally and economically; and the School Officials testified that it was far better for the children to endure the long bus ride, rather than continue in the small one-room school in Star. After hearing all the evidence, the learned Chancellor ruled:

“That the action of the Board of Education of Garland County School District No. 1 in closing the Grade School known as the “Star” School in said District was within the discretion of said Board of Education, and the Plaintiffs have shown no abuse of discretion on the part of the Defendant Board of Education in closing the said school. ’ ’

We conclude that the Chancellor was correct. Section 30-509 Ark. Stats., in listing the powers and duties of school directors, says that they shall: “ (a) Have the care and custody of the school house, grounds, and other property belonging to the District, . . .” “(b) Purchase buildings or rent school houses and sites therefor, and sell, rent, or exchange such sites or school houses. . . .” “(d) Employ such teachers and other employees as may be necessary for the proper conduct of the public schools of the district, . . .” “(g) Visit the schools frequently, see to the welfare of the pupils, encourage them in their studies, and assist the teacher in the work so far as they can. . . .” “ (m) Do all things necessary and lawful for the conduct of an efficient free public school or schools in the district.”

Under these and other powers, the School Directors could, in good faith, reach the decision they did about the Star School; and the evidence herein does not show that the School Directors acted in bad faith. In Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538, 30 A. L. R. 1212, we said:

“Courts will not interfere in matters of detail and government of schools, unless the officers refuse to perform a clear, plain duty, or unless they unreasonably and arbitrarily exercise the discretionary authority conferred upon them.”

In 47 Am. Jur. 325, “Schools” § 44, cases from many jurisdictions are cited to sustain this statement:

“The courts will not interfere with the exercise of discretion by school directors in matters confided by law to their judgment, unless there is a clear abuse of the discretion, or a violation of law. Every presumption is in favor of the proper exercise of power when its object is reasonably germane to the purposes of the grant.”

Therefore, we affirm the Chancery decree in regard to closing the school in the Star community.

II. The Location And Construction Of A School In The Western Part of The School District. The plaintiffs alleged and established: that in March 1952, an election was held in the School District and a bond issue of $10,000.00 was voted for a new grade school to be erected in the western part of the District; that since 1952 the money realized from the sale of the bonds has been in the County Treasury; and that the members of the School District and members of the County Board of Education had failed to select a site and undertake the construction of said school building. The prayer of the complaint was that the School Directors and the members of the County Board of Education be required to select a site and commence the construction of said school building.

After hearing the evidence, the Chancery Court refused the prayed relief. This is the second time that some phase of this same situation has reached this Court. In Johnson v. Robbins, 223 Ark. 150, 264 S. W. 2d 640, some patrons of the same School District prayed that the Garland Chancery Court select a site for the location of said school building; and, in holding that the Court should not select a site, we said:

“Although it is true, as the appellees point out, that arbitrary action on the part of a school board is subject to judicial review, the court even then does not substitute its judgment for that of the board. All that equity does is to restrain a course of conduct found to be arbitrary; the choice of a more reasonable plan is then left to the directors. In the case at bar the third selection is not yet final, in that the County Board of Education has not given its necessary approval. But even if that board had acted it is not the court’s place to lift the matter from the hands of the two administrative agencies and to make for them the choice that the law commits to their discretion. ' ’

In the present case it was practically admitted by the defendants that they had no present intention of undertaking to construct a school building with the proceeds of the bond issue. The question before us now is whether the Chancery Court should have issued a writ to compel the expenditure of the trust money for the trust purpose (i. e., the building of a school); or whether the Court was correct in allowing the trust money to remain unexpended because it was shown that the money was: (a) insufficient to accomplish the intended purpose; and (b) even if a building should be constructed, it would be inexpedient to use it for school purposes.

In our democratic system, the School District is one of the units of self-government, and it would be unfortunate for all concerned if the School Directors, as the chosen representatives of the People voting in the school election, would fail and refuse to earnestly and fairly undertake to accomplish the legally expressed directions of the electorate. In such an event, recourse to the judiciary would be available to the electorate. But, in the case at bar, the evidence does not justify judicial intervention, because it is shown that the School Directors are trying to conserve the trust money, rather than to waste it. The evidence established that since 1952 building costs, shifts in the location of school children, and the upgrading of the school system, combined to make it extremely unwise to expend the trust money for a school building, because (a) no creditable school building could now be constructed in the western part of the District for as little as $10,000.00; (b) if a building should be constructed, as desired by the plaintiffs, there would not be sufficient pupils to justify maintaining the school (as discussed in Topic I, supra); and (c) it is far wiser to transport the children from the Star community to the Jessieville school, rather than to attempt to maintain a school for the six elementary grades in the Star community (as discussed in Topic I, supra).

Therefore, on the record before ns, we cannot say that the Chancery Court was in error in its decree on this phase of the case. The trust fund is not to be diverted, and should a subsequent school enumeration disclose the feasibility of constructing and maintaining an elementary school slightly west of or near the center of the District, then the present decree is no bar to the further efforts by any patrons of the School District toward the achieving of that result.

Affirmed.


author: George Rose Smith, J.

text:
    City of Ft. Smith v. France.
    5-2542
    353 S. W. 2d 186
    Opinion delivered January 15, 1962.
    [Rehearing denied February 19, 1962.]

      B. Byron Dobbs, City Attorney, for appellant.

      Ralph W. Robinson and David O. Partain, for appellee.
   George Rose Smith, J.

In 1958 the city of Fort Smith bought from the appellees, Charlie France and his wife, a small tract of land near Lake Fort Smith, which is the municipal water supply. Two years later the sellers brought this suit to reform the deed, contending that by mutual mistake the description included more land than they meant to convey. This appeal is from a decree granting the prayer for reformation. For reversal the city contends that no mutual mistake existed, for the reason that the city commissioners intended to accept the deed in the exact form in which it was presented to them by the sellers.

France owned several acres near the lake. In negotiating the sale in question he talked only with John Luce, the superintendent of the city’s water department, and with Ira Cole, the caretaker of the lake property. France testified that he proposed to sell to the city his garden lot, which was completely enclosed by a fence and contained 1.3 acres. He says that during the negotiations he showed this enclosed parcel to Luce and Cole, who understood that it was the property being offered to the city. We have some difficulty in following the testimony, because the witnesses repeatedly referred to a plat that was not introduced in evidence and is not before us. As we understand the proof, however, the chancellor was not in error in finding that the plaintiffs proved by clear and convincing evidence that Luce and Cole thought that the city was buying the enclosed garden lot.

After Luce had examined the property he suggested that France have a deed prepared so that it could be tendered to the city commissioners. France accordingly went to an abstract office, where the abstracter, apparently after consulting his records, prepared a deed containing this description of the land being conveyed:

“All that part of the Southwest Quarter of the Northwest Quarter of Section 30, Township 12 North, Range 29 West, which lies East of the Shepherd Springs Road as now located over and across said forty, and North of that part of said forty owned by the City of Fort Smith, and that part of said forty owned by Joe G-. Bennett and others and described in deed to them, of record in the office of the recorder of Crawford County, in Deed Record 178 at Page 52.”

This description was erroneous in that it described a total of 3.9 acres instead of the 1.3-acre lot that France meant to offer the city. France and his wife executed the deed and delivered it to the office of the municipal water department. A few days later the purchase was approved at a meeting of the city commissioners (Fort Smith, has a commission form of government), and the purchase price of $3,000 was paid. The chancellor reformed the deed to describe only the garden lot instead of the entire 3.9 acres.

It is conceded that Luce and Cole did not have the power to bind the city by contract. That authority rested solely in the board of commissioners. Upon that premise the city insists that its authorized agents could not have acted under a mistake. The commissioners did not inspect the land and are not shown to have known that the sellers meant to convey the garden lot only. Hence, it is argued, the commissioners must be taken to have intended to purchase the 3.9 acres described in the deed they accepted.

This argument might have merit if the deed had specifically and intelligibly described 3.9 acres, so that it could be said that the commissioners knew that the city was to receive that quantity of land. Such a patent factor was involved in Armory Comm. v. Palmer, 253 Ky. 425, 69 S. W. 2d 681. There the Palmers negotiated with the adjutant general in an effort to lease their land to the state armory commission. The Palmers and the adjutant general intended for the lease to be absolutely binding for a ten-year term, but by mistake a provision was inserted which empowered the state to terminate the lease at the end of any semiannual period. The lease was approved by the armory commission, which had the sole power to act for the state. Several of the commissioners testified that they would not have approved the lease if it had not contained the clause permitting the state to terminate it before the expiration of the term. The court properly held that the adjutant general’s mistake was not attributable to the commissoners, for they were unaware of it and consciously intended for the cancellation provision to be included in the contract.

The case at bar differs from the one just cited in that here the city commissioners could determine nothing whatever about the size or shape of the land merely by reading the erroneous description in the deed. The tract was described simply as that part of the forty lying east of Shepherd Springs Road and north of property owned by the city and by Bennett and others. Within the limits of such a description the tract might vary in size from a fraction of an acre to almost the entire forty. Hence the commissioners conld not have learned from the language of the deed that the city was to receive 3.9 acres. Only one of the commissioners testified at the trial, and he did not even intimate that he approved the transaction with the conscious realization that the city was to obtain 3.9 acres.

The proof is not as complete as it might be, but we may fairly infer from the record that Luce, who had viewed the garden lot, recommended its purchase to the commissioner in charge of public works, and he in turn recommended it to his fellow commissioners. Obviously the board did not blindly authorize the expenditure of $3,000; so one of two possibilities must have existed. First, Luce may have informed the board, through the commissioner of public works, that the city was being offered the enclosed garden lot. In that case the board consciously shared France’s mistake in thinking that the deed described only that lot. Secondly, Luce may have merely recommended the purchase as a desirable one for the city, without describing the land in detail. In that case the commissioners unquestionably meant to purchase the land that Luce had in mind when he made his recommendation. Any other view of the matter leads to the absurd conclusion that a mutual mistake was an impossibility in the circumstances, so that the city could not have obtained reformation even if the deed had erroneously described a few square feet of nominal value instead of the garden lot that was really the subject of the contract.

The city relies mainly upon Fagan v. Graves, 173 Ark. 842, 293 S. W. 712. There a mother and son were engaged in litigation about the ownership of two lots standing in the son’s name. They agreed to compromise their dispute by dividing the property. The son had stepped it off and thought that if he retained one lot and six feet off the side of the other he would acquire the land upon which a small building was situated. The son’s deed to his mother was so prepared and executed, but it later developed that he had been mistaken, that the six-foot strip did not include all of the building. In affirming the chancellor’s refusal to reform the deed we observed that the son’s proof of mutual mistake was not clear, decisive, and unequivocal.

As we interpret that case the mother’s dominant intention was open to question. If she meant to release the site of the building, whether or not it was correctly described in the deed, then a reformation would have been proper. On the other hand, if she meant to release only the six-foot strip, regardless of the location of the building, then there was no mutual mistake, for she did what she intended. By contrast, in the case at hand the commissioners could not have understood that the city was getting title to 3.9 acres, for that information was not supplied either by the bare language of the deed or by Luce. Hence the chancellor properly reformed the instrument to correct what was actually a mutual mistake.

Affirmed.


text:
    Bearden v. Bearden.
    5-2544
    353 S. W. 2d 181
    Opinion delivered January 15, 1962.
    [Rehearing denied February 19, 1962.]

      George F. Edwardes, for appellant.

      Dennis K. Williams and LeRoy Autrey, for appellee.
   Paul Ward, Associate Justice.

This is an appeal from an order of the trial court which took a 4 1/2-year-old hoy from his mother and gave custody to his father.

Dorothy (appellant) and Robert L. Bearden (appellee) became the parents of a boy, Robert Allen, on April 15, 1956, and they were divorced by decree dated June 18, 1958.

By that decree custody of the boy was given to his mother nine months of each twelve months (September to May inclusive) and the father was given custody for the rest of the time. The decree further provided: Robert L. to pay Dorothy $50 per month (for the nine months she had custody) for the support of the boy until he became 21 years old; he was to pay her individually $150 per month until June 8,1963; he was to repay $7,000 which he had borrowed from her; and he was to pay the "expenses of safe transportation of the child to and from his mother ’ ’. All the above provisions were agreed to by Mr. and Mrs. Bearden in writing and incorporated in the decree.

Sometime during the spring of 1960 relatives of Mr. Bearden, while returning from a trip to Georgia, visited the home of Mrs. Bearden in New Orleans, and, with her consent, took the boy with them to Mr. Bearden’s home in Texarkana, Arkansas. On August 20, 1960 Mr. Bearden (who had previously remarried) filed suit asking "that he be awarded the care and custody of his son, Robert Allen Bearden, subject to the right of the respondent, Dorothy Bearden, to have and visit with the child at reasonable times. . . .” After a full hearing the trial court, on December 8, 1960, granted the relief as prayed.

Appellant now prosecutes this appeal, contending the evidence fails to show such a change in conditions or other facts as to justify the change of the original decree. After a careful study of the record we have concluded appellant’s contention must be sustained. Set out-below is wbat we think is a fair summation of what the pertinent testimony reveals.

Mr. Bearden runs a night club in Texarkana just as he did when he was married to Dorothy, and his present wife works in it some just as did Dorothy. Mr. Bearden and his present wife, who now have a three-month-old baby, are respectable people and could give Robert Allen a good home. They do not claim to be regular church attendants. The paternal grandparents, who have intervened, have kept Robert Allen quite a bit and would like to have him now. None of appellee’s witnesses question the moral fitness of Dorothy to retain custody, and none could point out any change in conditions to justify taking custody of Robert Allen from his mother.

Dorothy resides in New Orleans where she lived when the divorce decree was rendered: She works at a respectable place similar to the place now operated by Mr. Bearden; she lives with her sister (who also has a young son) in a comfortable and respectable apartment; she says she looks after the educational, physical and spiritual welfare of her son; she is not going to work any longer as she plans to marry a man (giving man’s name) who is a printer making $130 per week; she loves her child and wants to retain his custody, and; she is willing for Robert Allen to visit his father and grandparents frequently.

Under the above state of the record we are unable to find any change in circumstance (since the original decree) which indicates it would be for the best interest of Robert Allen for the court to take him from his mother and give custody to his father.

Before a decree awarding custody of a child is modified there must be proof showing a justification for a change. See: Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619. This rule has been adhered to in many later decisions of this Court. The burden to show such change in circumstances is on the one seeking the change. See: Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561, and Duncan v. Crowder, 232 Ark. 628, 339 S. W. 2d 310. We do not think this burden has been met in this case.

In addition to all that has been said heretofore, we also point out that this Court has often shown a preference to the mother where the custody of a child of tender age is involved. See: Gibson v. Gibson, 156 Ark. 30, 245 S. W. 32; Taylor v. Taylor, 163 Ark. 229, 259 S.W. 395; Greer v. Greer, 193 Ark. 301, 99 S. W. 2d 248; Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561; and Duncan v. Crowder, 232 Ark. 628, 339 S. W. 2d 310. It seems to us this preference would apply with even more force where, as here, it is sought to take custody from the mother after it has once been awarded.

It is our conclusion therefore that the order of the trial court should be, and it is hereby, reversed.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice,

dissenting. Child custody cases are the most difficult to decide. If we make a mistake in a land case there is other land the losing party may acquire by energy and effort; if we make a mistake in the amount of a money judgment the losing party may acquire additional money by energy and effort; but if we make a mistake in a child custody case a life may be ruined, and the child has only one life to live. So these child custody cases require great study and prayerful consideration.

The Chancellor who decided this case saw the parties and heard them testify. He was in a much better position to decide the case than we are, since we see only the printed page. At the conclusion of the testimony the Chancellor delivered a lengthy opinion. I cannot say that he was in error. The remarriage of the father makes an opening wedge of change of circumstances; and the fact that the paternal grandparents are to assist in the care of the child shows that the little boy will be given more supervision and attention here in Arkansas than is shown if he be in Louisiana. The best interest of the child is the polestar in these cases.

Not being willing to substitute my opinion obtained only from the typewritten testimony, for the conclusion of the Chancellor who saw the parties and the child,, I cannot vote for a reversal.

Therefore, I respectfully dissent.


text:
    Carr v. Carr, Admr.
    5-2554
    352 S. W. 2d 825
    Opinion delivered January 15, 1962.

      Shackleford S Shackleford, for appellant.

      J. G. Ragsdale, for appellee.
   Sam Robinson, Associate Justice.

R. A. Carr died on April 23, 1959. His widow, Sarah Ellen Carr, died January 14, 1960. William Carr is administrator of the R. A. Carr estate, and Bob Wallace is administrator of the Sarah Ellen Carr estate. Appellant Leon Carr is an heir of R. A. Carr and one of the devisees under R. A. Carr’s will.

The administrators of both estates jointly petitioned the probate court to authorize the distribution of about $6,000 in cash in the two estates. The court authorized such distribution but the administrators paid nothing to appellant Leon Carr because they contend that he is indebted to the estates in a greater sum than he had coming to him as an heir or devisee under the will.

Leon Carr petitioned the probate court for an order requiring the administrators to distribute to him a por* tion of the cash an an heir and devisee. The administrators answered, alleging the indebtedness of Leon Carr to the estates. There was a hearing, the issue being whether Leon owed the estates more than he had coming to him as an heir and devisee. It was shown that R. A. Carr and Sarah Ellen Carr had as an accommodation endorsed Leon’s promissory note in the sum of $1,155 and of this sum Leon had repaid only $200 and the endorsers had paid the balance.

It was further shown that Leon had given to R. A. and Sarah Ellen Carr his note in the sum of $2,500; that only $400 had been paid on this note and the balance was long past due. Leon contended that $1,500 had been paid in addition to the $400; that he had paid his father $1,500 in cash and that this amount was accepted by R. A. Carr as payment in full. The probate court heard the evidence and saw the witnesses, and we cannot say the court’s finding that the $1,500 in cash had not been paid is against the preponderance of the evidence.

Affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    Hyder v. Newcomb.
    5-2525
    352 S. W. 2d 826
    Opinion delivered January 15, 1962.

      J. B. Milham and Gladys M. Cummins, for appellant,

      Fred E. Briner, for appellee.
   Neill Bohlinger, Associate Justice.

This cause was initiated by appellee, Inez Newcomb, in the Saline Chancery Court against appellant, Evelyn Glenn Hyder, to require the appellant to perform a verbal agreement for the sale of certain lands in Saline County. The case was presented to the Chancellor, Judge F. I). Goza, on August 25, 1960.

At the close of the testimony, the chancellor made a statement and finding of fact. The finding was dictated at that time to the court reporter and was a finding in favor of the appellee and ordered the appellant to execute a deed to the land in question upon the payment to her of the sum of money that had been agreed upon.

Judge Goza died on September 7, 1960 without having signed a decree based upon his finding and pronouncement and subsequently Judge Ted Donham was appointed to succeed him. Thereafter, on November 29, 1960, there was presented to Chancellor Donham the formal decree based on the finding of Judge Goza which Judge Donham signed and it was duly entered of record. Neither the appellant nor her attorneys were present at that time and no notice of the entry of this decree was given them until January 4, 1961, more than thirty days after it had been entered of record. On January 6, 1961 the appellant filed her motion to vacate the decree and set the cause for a hearing on the merits, which motion was denied by the chancery judge and the appellant prosecutes this appeal from the adverse ruling on that motion and for a reversal thereof relies upon these points:

That Chancellor Donham was without legal authority to render a decree and enter it since the case was heard by another chancellor and that the decree entered is void because no notice was given appellant of the entry of that decree and that there was no evidence upon which the newly appointed chancellor could base a decree and that the decree, as entered, includes lands that the defendant does not and did not own on the date of the alleged agreement to sell.

When the case was presented before Judge Goza it was, so far as the record before us indicates, completely developed and the finding of Judge Goza goes to all points in controversy and was, in effect, a judgment or decree actually rendered. The fact that the signed decree did not find its way immediately into written court record does not prevent it from being what it purports to be, ‘ ‘ a statement and finding of fact. ’ ’ The issues as between the parties had been resolved in that finding. The decree was subsequently presented to Judge Donham, the successor of Judge Goza, who signed it and caused it to be entered of record. This Judge Donham had the authority to do. When the matter was presented to Judge Don-ham, two courses were open to him. He could have reopened the case, reheard it and made a finding just as Judge Goza might have done had he lived and the matter been subsequently presented to him. Judge Donham elected to accept the finding of Judge Goza and signed the decree.

A similar situation was before this court in the case of Winn v. Dodge, 173 Ark. 73, 291 S. W. 992, which states the contention of appellee:

‘ ‘ Chancellor Dodge might, as petitioners insist have reopened the entire cause and have heard it de novo, just as Chancellor Martineau might have done had he remained in that office, but Chancellor Dodge could not be required to reopen and rehear the cause, inasmuch as a final decree had been rendered by his predecessor. The fact that the decree had not been spread upon the records of the chancery court did not make it necessary for Chancellor Dodge to again try the cause. Petitioners are not entitled to a second trial of the cause on its merits. ’ ’

However, the law in this case is limited in its application here. In the Winn-Dodge case the decree had been prepared and was submitted to opposing counsel who' declined to approve it and the attorneys for the defendant in that case were fully apprised of the preparation of the decree and the filing of it with the clerk and were thus in a position to take any necessary action.

Not so with the case at bar for it is apparent that the appellant had no notice of the entry of the decree. Though the chancellor had the power to enter the decree based upon the findings of fact of his predecessor, we feel that the appellant should have been apprised of the entry of the decree.

In American Mortgage Company v. Williams, 103 Ark. 484, 145 S. W. 234, we have a case in which the decree was rendered during a term of the court but was not entered until after the term. The plaintiff, Williams, contended that because the decree [which foreclosed the mortgage and cut off Williams’ equity of redemption] was not entered during term time it was of no effect. This court in that case, in denying Williams ’ contention, placed importance on the fact that Williams knew of the rendering of the decree and was notified of the entry of the decree and afforded the opportunity of approving it as to form.

The appellant in the instant case had thirty days to-appeal from the entry of a decree, the entry of which was unknown to her and did not come to her attention until after the time for her appeal had expired. Since the appellant was not notified of the entry of the decree and thereby lost her right of appeal through no fault of her own, we will treat her appeal from the denial of a motion to vacate the decree as a petition for Writ of Certiorari.

In Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S. W. 1064, Judge Battle explained the use of Certiorari in these words:

‘‘According to the well settled practice in this state the writ of certiorari can be used by the circuit court in the exercise of its appellate power and superintending control over inferior courts in the following classes of cases: (1) Where the tribunal to which it is issued has exceeded its jurisdiction; (2) where the party applying for it had the right of appeal, but lost it through n& fault of his own; and (3) in cases where it has superintending control over a tribunal which has proceeded illegally, and no other mode has been provided for directly reviewing its proceedings.” [Emphasis ours, citations omitted.]

See also: Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; McCain v. Collins, 204 Ark. 521, 164 S. W. 2d 448.

In Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559, it is stated:

“The writ is granted in two classes of cases, first: Where it is shown that the inferior tribunal has exceeded its jurisdiction; and, second, where it appears that it has proceeded illegally and no appeal will lie, or that the right has been unavoidably lost.” [Emphasis ours, citations omitted.]

Treating this appeal as a petition for certiorari, it falls well within the cases cited supra and the petition for certiorari is hereby granted and the appellant is given sixty days to prepare and lodge with this court the entire record in this case when it will be submitted with briefs on its merits.

The appellant will recover her costs of this appeal.


text:
    Wallis v. McGuire.
    5-2508
    352 S. W. 2d 940
    Opinion delivered January 22, 1962.

      Maner <& Stanley, for appellant.
    No brief filed for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal relating to the property here involved. In the first appeal, McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714, we reversed the decree of the Hot Spring Chancery Court which found that Wallis had acquired title to the lands in controversy by adverse possession. The case' was remanded to that court for further proceedings. Following remand, Wallis filed a petition with the Chancery Court seeking reimbursement for improvements which he had made on the property. Appellees herein (Mrs. Katie McGuire, et al) then filed a motion in which they asserted, inter alia, that if Wallis “is given credit for the improvements he placed upon the property that he be held accountable for the timber which he sold off the land and for the rents he received”; further, that Wallis had enjoyed the use and benefit of the land. At the hearing, it was stipulated between counsel that the testimony in the prior ease should be made a part of the present record. Appellants’ purpose in petitioning the court was to offer specific proof as to the investment made in the property by Wallis. Counsel for appellees objected to any testimony which would vary the testimony relative to improvements in the previous trial. The court announced: ‘ ‘ The rule of the Court is that the testimony may be introduced and will be taken into consideration by the Court as tending to clarify the testimony already given in this case, but during the course of the trial if there is testimony introduced that tends to impeach witnesses, I will not permit that. At this time the Court rules that the testimony can be presented this afternoon on this particular case, and it will be considered by the Court solely to tend to clarify the general value as placed on the improvements in the previous trial.” Proof was introduced as to the costs of improvements, but the court refused to consider the testimony, basing its findings on the proof relating to improvements in the first case.

Counsel also requested that appellants be allowed to offer proof relative to rental value of the land, stating, '“This issue also was not in controversy in the original proceeding, and came into controversy as incidental to the main question then being tried.” The request was denied by the court. The court found that Wallis had made improvements consisting of two barns at a cost of $1,657, a stock pond at a cost of $294, a well at a cost of $164, and fences at a cost of $320, or a total of $2,435.. Other credits were allowed in bringing the entire total to $3,222.29. The court charged Wallis with the sale of timber off the lands in the amount of $560, and rent collections from the property in the amount of $1,500, or a total of $2,060. This left a net to Wallis of $1,162.29, but the court held that Wallis had had the use and occupancy of the property for sixteen years, and the rental value amounted to more than this net expenditure. Accordingly, no allowance was given Wallis for improvements or other items claimed in the decree which was subsequently entered, and appellants have appealed to this Court. For reversal, appellants rely upon four points, as follows:

“1. The Court erred in refusing to consider testimony regarding value of improvements made by Clovis Wallis;
2. The Court erred in refusing to permit Clovis Wallis to introduce proof regarding the rental value of the property while it was in his possession;
3. The Court erred in finding that the rental value of the property while it was in Clovis Wallis’ possession was $1,162.29;
4. The Court erred in finding that Clovis Wallis had collected $1,500.00 in rent while the property was in his possession.”

We proceed to a discussion of these contentions.

Appellants are correct in asserting that they were entitled to offer additional testimony relative to the improvements and rent. Normally, in chancery cases, if the proof has been fully developed to the point where we can determine all issues on the record before us, we decide such issues rather than remand the case. As appellants assert in their brief, the only question really before us in McGuire v. Wallis, supra, was whether Wallis had acquired title to the lands by adverse possession. This is the only issue discussed in the opinion, and the only mention of improvements relates to their pertinence to the question of whether Wallis committed acts so hostile to his co-tenants as to charge them with knowledge of his adverse claim. There is no reference to rents at all in the opinion.

While, as stated, appellants were entitled to have additional proof considered by the court, no relief can be granted on point one, for the nature of the proof offered by appellants was improper to establish the value of improvements. The proper criterion is not the cost — nor present value — of the improvements, but rather, the amount by which such improvements have enhanced the value of the land. This is the rule under what is generally known as the Betterment Act, § 34-1423, Ark. Stats., 1947. See Hutchinson v. Sheppard, 226 Ark. 509, 290 S. W. 2d 843; McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88. In the latter case we said:

“The value thereof is based upon the enhanced value which these improvements at the time of the recovery impart to the land. * * * The difference between the value of the land without the improvements and the value of the land with the improvements in their then condition would be a just sum to allow therefor. ’ ’

The Betterment Act applies to tenants in common. Greer v. Fontaine, 71 Ark. 605, 77 S. W. 56; Baxter v. Young, 229 Ark. 1035, 320 S. W. 2d 640. Practically all of appellants' testimony deals with the costs of the improvements, though two witnesses testified to the present value of the barns. The cost of an improvement is only an element to consider in the overall picture. As stated in Greer v. Fontaine, supra:

“The measure of the value of betterments is not their actual cost, but the enhanced value they impart to the land, without reference to the fact that they were desired by the true owner, or could not be profitably used by him.”

No proof of the enhanced value of the land appears in the record, and accordingly, no relief can be granted.

The court did not permit proof to be offered concerning the rental value of the property, and based its findings, referred to in appellants’ points three and four, on the testimony offered at the first trial. We have already stated that appellants were entitled to introduce further evidence, and since they were not permitted to introduce testimony relative to rental value, the decree of December 6,1960, must be reversed. Under this holding, it becomes unnecessary to discuss point three. We are likewise unable to determine the basis of the finding that Wallis had collected $1,500 in rent while the property was in his possession, but this may also be further developed on remand.

Accordingly, the decree is reversed, and the cause remanded to the Hot Spring Chancery Court with directions to permit the taking of proof by all parties relative to the rental value of the property in question while in possession of Clovis Wallis, and likewise, the amount of rent collected by Wallis from the property.

It is so ordered,.

       Of course, the court’s findings were predicated upon an erroneous premise, since the figure arrived at for improvements was based entirely upon costs of the improvements. However, the complaint of appellants is not that the decree was erroneous because of that fact, but their complaint is rather that the court used the cost figures in the first trial rather than the cost figures in the second trial.