author: John A. Fogleman, Justice.

text:
    O’GUINN VOLKSWAGEN, Inc. v. Harvey LAWSON and Nettis Ann LAWSON
    73-212
    505 S.W. 2d 213
    Opinion delivered February 19, 1974

      Dickey, Dickey & Drake, Ltd., for appellant.

      Owens & Fikes, for appellees.
   John A. Fogleman, Justice.

Appellees obtained a judgment against appellant for damages resulting from injuries to appellee Nettie Ann Lawson when she fell on a sloping asphalt ramp near the exit from the showroom of appellant, an automobile dealer. The judgment was based upon a jury verdict. For reversal, appellant contends the circuit court erred in denying its motion to quash the service of summons on it, in giving an instruction advising the jury that by ordinance of the City of Pine Bluff, certain sections of the Southern Standard Building Code applied and in denying its motion to strike amendments to appellees’ complaint relating to applicability of the Southern Standard Building Code. We find no reversible error.

Appellant’s first contention is based upon a recital in the return on the summons that it was served upon LeRoy O’Guinn, manager of and for O’Guinn Volkswagen, Inc. It contends that, because the applicable statute, Ark. Stat. Ann. § 27-346 (Repl. 1962), required service upon the president or other chief officer of the corporation unless he was not to be found in the county, the return was invalid. After appellant admitted that LeRoy O’Guinn was president of the corporation at the time of the service, appellees moved that the return be amended to reflect that service was had upon the president. The circuit judge properly denied appellant’s motion to quash and granted appellees’ request for amendment of the return.

Substance rather than form has been the watchword in matters pertaining to pleading and procedure in Arkansas, at least since the adoption of the Civil Code. The clear intention of our statutes pertaining to service of process on corporations is to make sure that service is had upon a person who is most likely to have principal responsibility for the corporation’s affairs, if he is available, and, if not, upon one who has substantial responsibility. In this case, the objective was to serve the summons upon the person who was president of O’Guinn Volkswagen, Inc. Since the process was served on that person, neither he nor the corporation could possibly have been misled or prejudiced by the return on the summons. It is doubtful that he ever saw the return unless his attorney, after having inspected the file in the case, showed it to him.

Arkansas Statutes Annotated § 27-334 (Repl. 1962) specifically authorizes the court to permit a return to be amended to speak the truth. Furthermore, a court may, at any time, in the furtherance of justice, amend any proceeding to conform it to the facts proved when the amendment does not substantially change the claim or defense. Our courts are specifically directed to disregard any error or defect in the proceedings which do not affect substantial rights of the adverse party. Ark. Stat. Ann. § 27-1160 (Repl. 1962). Under the authority of this section, we have permitted summonses to be amended to correct clerical errors, even with retroactive effect. See, e.g., Rhinehardt v. Light, 225 Ark. 1045, 287 S.W. 2d 463; Chicago Mill & Lbr. Co. v. Lamb, 174 Ark. 258, 295 S.W. 27; Lowenstein v. Gaines, 64 Ark. 499, 43 S.W. 762.

If the summons itself can be amended, it should follow, as a matter of course, that a return should be amendable to speak the truth. As early as 1879, we recognized that a defective return could be amended to show the place of service, where this was essential to validity of the service, saying that it had been the practice of this court to allow amendments of returns, by leave of court, even after an appeal. St. Louis I. M. & S. Ry. Co. v. Yocum, 34 Ark. 493. In that case, where the service was upon the agent of the defendant railroad company at its depot house, we also said:

Where a summons has been in fact duly served, it is the duty of the defendant to take notice of it, unless all defense be waived. He can not shelter himself under a defective return from the consequences of his default, if the true facts be at any time brought properly upon the record. He could not, in the action, question the truth of the return in either case, and his remedy for a false return would be as effective in the case of the amended as the original return.

We have held that amendment of a proof of publication of a warning order to speak the truth was proper, even after judgment, upon the same rationale, i.e., jurisdiction is dependent upon the service (publication) not by the return (proof of publication). Blackwell Oil & Gas Co. v. Maddux, 181 Ark. 726, 27 S.W. 2d 514.

Cases relied upon by appellant such as Nutrena Mills v. Parsons Feed & Farm Supply, Inc., 234 Ark. 1058, 356 S.W. 2d 421, do not in any way conflict with or detract from the effectiveness of our statement in the Yocum case. In Nutrena Mills, we pointed out that the service was' void because the unavailability of the president of the corporation was neither recited in the return nor shown by the evidence. In Arkansas Construction Co. v. Mullins, 69 Ark. 429, 64 S.W. 225, we held the service insufficient because neither the record nor the return showed whether the defendant corporation was foreign or domestic, or that the agent of the corporation, upon whom the service was had was of such character as to render it fair, reasonable and just to imply an authority on his part to receive service. A motion to quash was filed in Ark. Coal, Gas, Fire-Clay & Mfg. Co. v. Haley, 62 Ark. 144, 34 S.W. 545, but it does not appear that any effort was made to show that the facts requisite to valid service actually existed. In Vulcan Const. Co. v. Harrison, 95 Ark. 588, 130 S.W. 583, we clearly recognized that the existence of the requisite facts might be shown by evidence as well as by the return.

Appellees also call our attention to the fact that appellant, by answering without expressly preserving the point raised in its motion to quash, waived any defect in the return. See Chicago Mill & Lbr. Co. v. Lamb, supra; Barry v. Armstrong, 161 Ark. 314, 256 S.W. 65; Vulcan Construction Co. v. Harris, supra.

Appellant gives four reasons why it feels that instruction No. 9 should not have been given. They are;

1.There was no ordinance introduced into evidence.,
2.There was no evidence of any violation of the provisions of the Southern Standard Building Cdde which were incorporated into this instruction. ■
3.The provisions of the Southern Standard Building Code do not apply because the subject slope, or asphalt buildup, was not a part of the building.
4. Even if the provisions were applicable, there was no violation.

Of course, we agree with appellant that the courts cannot take judicial notice of city ordinances, but this does not mean that an ordinance must be actually introduced into evidence in its entirety, before it can be given consideration by the court, especially where the particular wording of the ordinance is not an issue. Here, the issue made by the pleadings was whether the Southern Standard Building Code applied to the ramp, and, if so, which version of that code applied. Appellees’ allegation in an amendment to their complaint that the Southern Standard Building Code was adopted by a city ordinance was not denied by appellant in its answer. The only controversion of appellees’ allegations in that regard was by statements that an improper edition had been quoted and cited by appellees, and that the “ramp requirements” of the code were inapplicable to the ramp on which Mrs. Lawson fell. In a pretrial hearing, Charles Royse, a witness for appellant testified that the 1961 edition of the code applied when the permit for the construction of the building was issued by the City of Pine Bluff. He also testified at the trial that he had determined that this edition was in effect at the time.

A pretrial order on a motion of appellant to strike an amendment to the complaint in which appellees first asserted applicability of this code recites that, upon stipulation of counsel, the 1960-61 edition was in force and effect as an ordinance of the city at the time of the construction. In a motion for continuance, appellant stated that it had intended using the technical director of the Southern Building Code Congress to testify whether “the applicable section of the Southern Standard Building Code as adopted by the city ordinance of Pine Bluff applies to the entrance way, sidewalk and parking lot of the defendant, which is the subject of this lawsuit.”

At the time the instruction was given, the fact that the City of Pine Bluff had adopted this code when the ramp was constructed was no longer an issue, so there was no error in giving the instruction simply because the ordinance was not introduced.

Among the provisions of the code recited in instruction No. 9 was one making its provisions applicable to every building or structure or any appurtenances connected or attached to such buildings or structures. Another required that slopes of floors required in exits from buildings should not exceed one in ten. Still another required that a ramp be of nonslip material and that its slope not exceed one in ten. The gist of appellant’s argument in his second basis for reversal on this point is that the witnesses could not, or did not, specify by number any section of the code that had been violated and, in any event, failed to specify any of the provisions recited in the instruction.

We do find evidence, however, that the ramp, admittedly on a slope of greater than one in ten, was governed by the code provisions. Leo Tyra, a registered professional engineer, who was City Engineer for the City of Pine Bluff and, as such, head of the city inspection department when appellant’s building and improvements were constructed, testified on behalf of appellees. He testified he had concluded that the provision with reference to exit outlets and ramps recited in the instruction applied because appellant’s building was a public garage, since it had the capacity to store more than four automobiles and automobiles were on display for sale to the public. From this premise he “improvised” that the limitations on slopes applied. Tyra also expressed the opinion that four feet of level concrete between the showroom exit door through which Mrs. Lawson came and the asphalt ramp was actually a landing rather than a sidewalk. On cross-examination, Tyra admitted there was no express provision of the code requiring ramps in a public garage, but found an implication that they were required in sections of the code relating to public garages and referring to enclosed and unenclosed ramps. He also admitted that if the business were a maintenance shop rather than a garage there would be doubt about the application of the ramp requirements and that, under a strict definition, the building stopped at the curbline of the concrete walkway. Ellis McCorkle, a registered professional engineer and safety consultant, agreed that the implication of the provisions relating to public garages was that the ramp requirements applied in this case. He was of the opinion that, as constructed, the asphalt “build up” was a part of the building. We take this evidence to be adequate to show which provisions were to be considered in determining whether there had been a violation of the code.

We have already referred to some of the testimony tending to establish that the slope, ramp or asphalt “build up” constituted a part of the building. Charles Royse, the Pine Bluff building inspector, who issued the permit for the building, said the provisions of the code did not apply to parking lots, and the four feet of level concrete at the doorway met all the requirements of the code. He considered this concrete surface as part of the building and the asphalt slope as part of the parking lot. He stated the asphalt slope was not a part of the building plans he had inspected with the application for the permit, but, even if it had been, he would not have considered it as a part of the building. Robert Sullivan, Director of Education for the Southern Standard Building Code Congress, by which the code was promulgated, was of substantially the same opinion as Royse. Sullivan said that the exit requirements did not apply to anything outside the exterior walls and doorways of the building proper.

Perhaps, as Tyra conceded, a strict interpretation of the code would support appellant’s position. But as pointed out through Tyra’s testimony, § 101.2 of the code (recited in the instruction) declared it to be remedial and to be construed to secure beneficial interests in public safety and safety to life and property from hazards incident to construction, use and occupancy of buildings, structures or premises. Tyra also read § 101.3 providing that the code should apply to construction, use and occupancy and maintenance of every building or structure or any appurtenances connected or attached to such building or structures. We cannot say that, as a matter of law, the implications relied upon by Tyra are totally absent. We do not take the word “appurtenances” to be used in the technical legal parlance utilized in conveyancing. We take it to bear the commonly accepted nontechnical definition, i.e., “that which belongs to something else; adjunct; appendage; an accessory; something annexed to another thing more worthy.” See Webster’s New International Dictionary, Second Edition, Unabridged. See also, Webster’s Third Edition. Accordingly, we cannot say that, as a matter of law, the asphalt slope was not a part of the building.

Appellant also argues that the existence of four feet of level sidewalk or walkway extending outward from the showroom doors constituted complete compliance with the code, and that there was no violation, even if the code applied. Although we agree with appellant that there was very substantial evidence upon which such a conclusion might be reached, we cannot say this was the case as a matter of law for the reasons hereinabove stated. Thus, we cannot say the giving of instruction No. 9 was reversible error for any of the reasons argued by appellant.

Appellant filed two motions to strike amendments to the complaint. The first motion actually was based upon a contention that the Southern Standard Building Code did not apply. The second was based upon contentions that it did not apply to the facts because no ramps were required at the door from which Mrs. Lawson claimed to have exited. As previously pointed out, the first motion was denied upon the basis of the stipulation of counsel. The second motion was denied with the reservation by the court of a ruling on the admissibility of the code when it was tendered for introduction during the trial. We do not see how appellant was prejudiced by this ruling. It does not point out to us any objection made, or any further request for a ruling on the point, during the trial, to the introduction of code provisions. Appellant argues that the question of applicability of the provisions of the code was a question of law because neither party requested a jury instruction which would have presented a question of fact on this point. We cannot well consider other jury instructions or requests therefor, because neither party abstracts anything except instruction No. 9 referred to hereinabove. Although it seems to us that such an issue of fact was presented, as we have previously indicated, still, we do not think that the requesting, giving or refusing of an instruction to that effect has any bearing on the denial of the motion to strike.

Furthermore, as appellees aptly argue, appellant waived the motion to strike, except for the right to object to the evidence when offered. An answer which does not specifically reserve a motion to strike, which has either been denied or which has not been ruled upon by the court, waives the motion. Street v. Shull, 187 Ark. 180, 58 S.W. 2d 932; Farmers’ Exchange v. Drake, 171 Ark. 1127, 287 S.W. 371.

Even if we agreed with appellant that no evidence was offered to show any negligence on its part other than the alleged violation of the building code, we could not say the court erred in failing to direct a verdict, as appellant contends, because as we have clearly indicated, the evidence did present fact questions for the jury’s determination. If the code applied, and if the facts showed that it was violated, there was evidence of negligence and a question of proximate cause was presented.

The judgment is affirmed.

Byrd.J., concurs.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Mable BUFORD, Administratrix of the Estate of Matilda COTTON, Deceased, and Mable BUFORD, Individually v. Rose T. Frazier MARTIN et al
    73-196
    505 S.W. 2d 489
    Opinion delivered February 19, 1974

      Matthews, Purtle, Osterloh & Weber, for appellant.

      Reinberger, Eilbott, Smith & Staten and Chambers & Chambers, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Mable Buford from a chancery court decree awarding to her only an undivided one-fifth interest in 80 acres of land rather than a fee simple title as a devisee under the will of Matilda Cotton. Matilda Cotton was one of the seven or eight children and surviving heirs at law of Robert Frazier who owned the 80 acre tract when he died intestate in 1905, also survived by his wife Bell. After Robert’s death Bell and the children continued to live on the land until her death in 1919 or 1920. It appears that the surviving children and heirs of Robert and Bell Frazier were Sidney, Sullivan, Tilda, Ben, Bourbon, Adell and Rose. The record is not clear as to whether Ben and Bourbon are one and the same, but from the conclusion we reach in this case, that is immaterial.

Following the death of Bell Frazier in 1919 or 1920, Sidney continued to live on the land and acted as a father to the other children until they grew up and found homes of their own. Sidney was still living on the land at the time of his death in 1953. About two years after Sidney’s death the house on the land burned and the land remained unoccupied and uncared for after that time. Matilda married C. T. Cotton and lived in Louisiana where she died testate and without issue in 1969, leaving her property in Arkansas by will to her niece, Mable Buford, who is the appellant in this case.

From 1919 through subsequent years. Bob, Sidney and Ben Frazier from time to time mortgaged their individual undivided interests in the land to secure their payment of personal indebtedness and most of the mortgages were satisfied of record. However, on June 28, 1924, Ben Frazier mortgaged his one-eighth undivided interest in the property to J. M. Young, trustee for J. L. and D. M. Davis, to secure the payment of $750 due and payable on the first day of October, 1924. The indebtedness was not paid and suit on the note resulted in a foreclosure sale and J.L. Davis purchased Ben’s interest in the property. On March 28, 1928, Davis filed suit against the remaining Frazier heirs for partition of the property. A partition and sale were decreed on November 8, 1928; the sale was conducted on December 12, 1928; the Frazier heirs collectively purchased the property at the partition sale and gave their promissory note to the Commissioner in payment of the amount due Davis. The note was for $222.87 due on or before March 12, 1929, and was secured by a lien on the land as fixed by the partition decree.

A commissioner’s deed was issued to the Frazier heirs setting out their individual interests and the deed recited in part as follows:

“This conveyance is made however, subject to a lien upon said land and premises reserved by the undersigned as such Commissioner in Chancery, to secure the amount due upon the bond given by the parties of the second part for the 1 /9th purchase money and costs as aforesaid.”

This note was assigned by Commissioner Garner to Wade Kitchens, who had represented the Frazier heirs in the partition suit and, apparently through this procedure, Garner obtained from Kitchens the amount due Davis, and Kitchens held the note until it was well past due. In any event, on January 8, 1932, Wade Kitchens filed suit against the Frazier heirs to collect the $222.87 past due on the note and to foreclose the lien against the property. On May 14, 1932, a judgment was decreed against the resident makers of the note and the decree provided:

“[I]f said sum and interest thereon, herein adjudged to be due, shall not be paid within; sixty days from this date, together with all costs herein adjudged to be paid by defendants, Sidney Frazier and Emma Moore, the Commissioner of this Court, hereinafter named, after he shall have advertised the time, terms and place of sale for a period of twenty days . . . shall sell at the Easterly Door of the Courthouse of said County . . . [the property here involved].”

In the meantime, the property became delinquent for nonpayment of state taxes for the year 1929. W. H. Kitchens purchased the property at a clerk’s tax sale on June 9, 1930, and deed was issued to W. H. Kitchens, Jr. on June 15, 1932. The property again became delinquent for nonpayment of the 1932 taxes and was forfeited to the state under two separate 40 acre calls on June 12, 1933. One of the 40 acre tracts was apparently redeemed by a stranger to this litigation. Certificate was issued on the other 40 December 31, 1935, and title was confirmed in the state. On June 11, 1936, the 40 acre tract was sold by the state to E. F. Johnson who in turn on April 20, 1937, transferred the title to W. H. Kitchens, Jr. by quitclaim deed.

It. appears from the abstract of title, made a part of the record and from which we are forced to glean most of the facts, that no further action was apparently taken on Kitchens’ judgment against the Fraziers until a commissioner’s report of sale filed and approved May 2, 1939, in which a commissioner reported that pursuant to authority and directions contained in a decretal order rendered by the chancery court on January 24, 1939, he gave notice of the time and place of sale; that at the sale so made, W. H. Kitchens bid and offered the sum of $420 for the land and premises, and that being the highest bid the same was struck off and sold to him for that amount. A commissioner’s deed dated and filed for record on May 2, 1939, was issued to W. H. Kitchens, Jr. and nothing else appears of record pertaining thereto until on March 8, 1944, W. H. Kitchens, Jr. and wife; by their attorney in fact, transferred the proper../ by quitclaim deed to C. T. Cotton and Tilda Cotton, his wife, jointly.

C. T. Cotton predeceased his wife Tilda and as already stated, Tilda died testate in 1969. Under her last will and testament the property here involved was devised to her niece, the appellant Mable Buford, who is a resident of Arkansas and who qualified as administratrix of the estate of Matilda Cotton with will annexed.

Mable Buford filed the present action against the other Frazier heirs alleging that she is the owner of the property involved; that the defendants claim some interest in it and she prayed that the title be quieted in her. Most of the testimony in the record and to which the record abstract is primarily devoted, pertains to the relationship of the parties and as already stated, the abstract of title was made a part of the record by stipulated agreement. The pertinent portions of the chancellor’s findings and decree recite as follows:

“[T]he partition deed provided that a lien be created against said property to pay J. L. Davis for his one-ninth (1/9) undivided interest in said lands; that Sidney Frazier, Bob Frazier and Emma Moore executed a note to Ezra Garner, as Commissioner, for the payment of the amount due J. L. Davis, and the said Commissioner, at the request ofj. L. Davis, assigned said note to Wade Kitchens; that Wade Kitchens then filed suit in 1932 against Sidney Frazier, Bob Frazier, Emma Moore, Cassie Murphy, Aliee Goodwin, Ada Bell Gilmore, Sullivan Frazier, Tilda Frazier Cotton and Rose T. King (which was Suit No. 4459, as reflected in the abstract), and said lands were sold, and W. H. Kitchens, Jr., son of, and law partner with Wade Kitchens, purchased said lands under said sale.
That this land was delinquent for non-payment of taxes for the year 1929 and sold to W. H. kitchens, who assigned the certificate of sale to W. H. Kitchens, Jr. W. H. kitchens, Jr. acquired a Clerk's Deed to said lands dated June 15, 1932; that W. H. Kitchens, Jr. executed a quitclaim deed to C. T. Cotton and Tilda Cotton, husband and wife, to said lands, reserving an undivided one-half (1/2) interest in and to the oil, gas and minerals.
* * *
That the purchase of the said lands at the partition sale was a new acquisition by the grantees; that when W. H. Kitchens, Jr. executed a quitclaim deed to C. T. Cotton and Tilda Cotton, the transaction amounted to a redemption of the lands for the benefit of the tenants in common.
That Sidney Frazier lived on the lands continuously from his parents’ death until he died in 1953; that the house on the land burned a year or so later and the land has been wild and unimproved timber land ever since; that Tilda Cotton did not acquire title to her co-tenants’ interest in said land.
That the title to the surface and one-half (1/2) of the oil, gas and minerals are now owned as follows: Mable Buford, an undivided 1/5 interest. Rose T. Frazier Martin, an undivided 1/5 interest, Cassie Sigh, an undivided 1/15 interest, Alice Bagsby, an undivided 1/15 interest, Adda Bell Garrison, an undivided 1/15 interest, Fleirs of Emma Frazier Moore, deceased, an undivided 1/15 interest, Barbara Jean Strong, an undivided 1/5 interest.
IT IS, THEREFORE, CONSIDERED, ORDERED and DECREED that the title to the surface, together with an undivided one-half (1/2) of the oil, gas and minerals be and same is hereby vested and quieted in the parties in the proportions as set out in the preceding paragraph. ”

On her appeal to this court Mable Buford has designated the points she relies on as follows:

“The court erred in holding the purchase at the foreclosure sale in 1929 created a tenancy in common.
The court erred in holding the purchase at the partition sale was a new acquisition by grantees.
The court erred in finding that the purchase of the property by C. T. Cotton and Matilda Cotton was a redemption for the others.
The court erred in not holding that Matilda Cotton was the sole legal and equitable owner of the property when she died in 1969.”

The appellant cites no law and advances little argument in support of her first two. contentions, but we consider it unnecessary to discuss these points because our decision must turn, not. on the Davis foreclosure sale or his partition sale, but on the foreclosure of the lien impressed on the property in the partition proceedings to secure the note given the commissioner in chancery by some of the heirs in partial payment of the amount they bid on the property at the time it was sold to them at the partition sale.

We agree with the appellant’s third and fourth contentions. By assignment of the note Kitchens simply became a holder in due course and at no time was he a tenant in common with the Frazier heirs. The note was long past due when in 1932 Kitchens filed suit on the note and obtained judgment. The judgment decree provided that if the judgment be not paid within 60 days, the land would be sold under the lien to satisfy the judgment. The judgment was not paid so the property was sold under the lien foreclosure sale on January 14, 1939, and was purchased at the foreclosure sale by Wade Kitchens, Jr. Wade Kitchens, Jr. held title to the property until he conveyed it to C. T. Cotton and Matilda Cotton on March 8, 1944, a period of almost five years.

It is difficult to follow the appellees’ reasoning as set out in their brief. The heart of their contention and the theory apparently accepted by the chancellor, is set out in their brief as follows:

“The Appellees and the Appellant’s testator in 1929 were tenants in common, subject to a lien secured by a note. Wade Kitchens, assignee of the note and former attorney for the Appellees in the partitioning suit, filed suit and received a favorable decree on May 2, 1932, but the property was not sold pursuant to the decree until 1939, when W. H. Kitchens, Jr. purchased it.
The Appellees do not claim a redemption based on the 1929 sale or any subsequent conveyance in the chain of title originating or continuing through it. Thus, the Appellant is correct when at page 32 of her brief she states, ‘this was not a tax sale and there were no redemption rights.’ The appellees do claim a redemption based on the 1930 tax sale for the 1929 taxes and the 1933 tax sale for 1932 taxes. The Appellees contend that the lien assigned to Wade Kitchens was also terminated along with the Appellees’ interests under the 1929 Commissioner’s Deed by the tax sales in 1930 and 1933. In fact, the Appellant, at pages 30 and 31 of her brief, states:
‘The property was delinquent for 1929 taxes. W. H. Kitchens purchased and then assigned his certificate to W. H. Kitchens, Jr., who acquired a Deed on June 15, 1932 (Page 75 Abstract of Title). On June 12, i 933, the property was sold for the 1932 taxes. The State of Arkansas was certified as the title owner on December 31, 1935.’
. . . The Appellees do contend that the purchase by Matilda Cotton and C. T. Cotton in 1944 of the chain of title originating out of the tax sales was a redemption. Matilda Cotton and C. T. Cotton purchased the property from W. H. Kitchens, Jr., whose only valid title rests on the tax sales.”

The crux of the appellees’ contention seems to be that the note and security which were assigned to Wade Kitchens by the commissioner in chancery, were terminated and rendered void by the 1930 and 1933 tax sales. Neither party cites any authority that would enlighten us on this contention and we have found none. In other words, we have simply found no law and none has been cited to us which holds that a tax forfeiture voids a prior mortgage or lien to secure a prior indebtedness. It would appear that if Kitchens’ purchase at the tax sale amounted to a redemption at all, there would be no question that he would have a right to make such redemption not only for the protection of the co-tenant owners and his debtors, but for the protection of his own lien as security for the debt they owed him.

Assuming that the tax sales to Kitchens only amounted to redemptions, it appears obvious that the Frazier heirs could not have cleared their title of the indebtedness and lien which they had placed against it without paying the indebtedness which the lien secured. On the other hand, if the tax sales to Kitchens placed good title in him, he was not a co-tenant with the Frazier heirs and their remedy would have been by attack on the validity of the tax sales. In any event, the Frazier heirs could have had no more than a right of redemption from Kitchens, and the record reveals no effort to redeem between the dates of the tax sales and the date of Kitchens’ purchase at the foreclosure sale.

The record pertaining to the suit on the note by Kitchens culminating in his purchase of the property at the 1939 foreclosure sale indicates proper and legal service on all parties concerned. Indeed the appellees do not question the validity of the 1939 foreclosure sale nor as for that matter, the validity of Kitchens’ title thereunder, except as it is affected by the tax forfeitures and sales.

We are of the opinion that C. T. and Tilda Cotton had a right to purchase the property from Kitchens (after he had held title to it for approximately five years) and that in doing so, their purchase amounted to a purchase of the title in fee and not a redemption for the benefit of the remaining Frazier heirs and former tenants in common. Even if Kitchens had been a co-tenant with the Cottons and the appellees, such co-tenancy would not necessarily have prevented Mr. and Mrs. Cotton from purchasing the property for their own benefit at a bona fide public judicial sale. In 86 C.J.S., Tenancy in Common, § 60 (1), it is stated:

“A cotenant may purchase for his own benefit at a bona fide public judicial sale, although the purchase will inure to the benefit of the cotenants where circumstances exist rendering the sale inequitable as to them.”

In the case at bar Matilda Cotton did not purchase at the foreclosure sale and she was not a co-tenant with W. H. Kitchens, Jr. Again in 86 C.J.S., Tenancy in Common, § 60 (3), it is stated:

“Where a cotenancy has been extinguished by a judicial sale of the property, the rule precluding a cotenant from acquiring a title to the common property for his own benefit does not apply in the absence of fraud or agreement to acquire it for the common benefit.”

Of course, there was no agreement or fraud alleged or proven in this case. Section 60 (3), supra, continues:

“Where a cotenancy has been extinguished by a judicial sale of the property, as on foreclosure and expiration of the period of redemption, it has been held that the rule precluding a cotenant from acquiring a title to the common property for his own benefit does not apply in the absence of fraud or an agreement to acquire it for the common benefit. ...”

In the case of Sewell v. Reed, 189 Ark. 50, 71 S.W. 2d 191, Fannie Reed died intestate seized and possessed of land in Ouachita County and survived by several children as her sole surviving heirs. The property was sold by the administrator of the estate in order to pay debts. A Mr. Chandler bought the property at the administrator’s sale and an administrator’s deed was executed and delivered to him. About ten years after Chandler purchased at the administrator’s sale, he executed a quitclaim deed conveying the property to Nannie Berry, a daughter of Fannie Reed, and one of the former co-tenants with her brothers and sisters. The remaining heirs of Fannie Reed filed suit alleging that they were tenants in common with the defendant heirs of Nannie Berry, who was then deceased. They prayed for an accounting of the income derived from the property; for a partition of the land between them and the defendant co-tenants and for other relief. The trial court, apparently relying on Brittin v. Handy, 20 Ark. 381, and subsequent like decisions of this court involving purchases by persons for their own use when they occupy a position of trust or confidence in relation to the property purchased, or where they have a duty to perform which is inconsistent with the character as purchaser, ruled in favor of the petitioners. In reversing the chancery decree, this court said:

“There was no relationship of trust existing between Nannie Berry and her brothers and sisters, nor any duty to discharge the debt due by the intestate. She was not the purchaser at the administrator’s sale, but from the purchaser at that sale, and she bought from him the lands 10 years subsequent to the administrator’s sale. By reason of the sale by the administrator, an outstanding title was created, and, although Nannie Berry had been a tenant in common of her brothers and sisters subsequent to the death of Fannie Reed, their mother, and preceding their divesture of title by such sale, her purchase of the same from Chandler was not void, nor did that interest then acquired vest in her cotenants.”

We are of the opinion, and so hold in the case at bar, that at the commissioner’s sale to W. H. Kitchens, Jr. an outstanding title was created, and, although Matilda Cotton had been a tenant in common with her brothers and sisters subsequent to the death of their father Robert Frazier and preceding their divesture of title by such sale, her purchase of the same from Kitchens was not void, nor did that interest then acquired vest in her co-tenants.

We see no reason to discuss the cases pertaining to the right of redemption under Ark. Stat. Ann. § 51-1111 (Repl. 1971) because there is no evidence of any effort to redeem from the foreclosure sale in this case within the statutory period. Furthermore, the parties seem to agree that a redemption from the foreclosure sale is not contended or involved in this case. We conclude, therefore, from the evidence in the record before us, that upon the foreclosure sale to Kitchens the co-tenancy in the property terminated. The co-tenants had one year to redeem in the absence of fraud or agreement and that they did not do so. C. T. Cotton and Matilda Cotton purchased the property in their own names and for their own benefit and such purchase did not inure to the benefit of Matilda’s former co-tenants. The decree of the chancery court is reversed and this cause remanded for the entry of a decree not inconsistent with this opinion.

Reversed and remanded.

       The period of redemption from a mortgage foreclosure sale is one year in Arkansas. Ark. Stat. Ann. § 51-1111 (Repl. 1971).


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Robert S. JONES et ux
    73-207
    505 S.W. 2d 210
    Opinion delivered February 19, 1974

      Thomas B. Keys and David P. Saxon, for appellant.

      Jack Tates and Lonnie Turner, for appellees.
   J. Fred Jones, Justice.

This is a condemnation case in which the Arkansas State Highway Commission appeals from a circuit court judgment, based on a jury verdict for $17,500, in favor of the appellee-landowners, Robert S. Jones and wife, in connection with the construction oflnterstate 40 across a portion of their 180 acre cattle and poultry farm.

Jones testified to damages in the amount of $20,000; his only witness testified to damages in the amount of $14,400. Two witnesses for the Highway Commission testified to damages in the amounts of $7,300 and $6,875 and, as above stated, the jury awarded damages in the amount of $17,500.

On appeal to this court the Commission contends that the trial court erred in refusing to strike the testimony of the landowner Jones because his testimony as to before and after value was not supported by substantial evidence; that the jury verdict was excessive and was not supported by substantial evidence.

The measure of damages to land in a condemnation case under eminent domain, is the difference in the fair market value of the land before and after the taking. Ark. State Hwy. Comm’n. v. Massengale, 238 Ark. 1072, 386 S.W.2d 710. The primary difference between a landowner and other witnesses as to the before and after value of land is that an expert, after qualifying as such, may state his opinion to fair market values without first being required to state facts upon which he bases his opinion. A nonexpert witness who is not the owner must first relate the facts upon which he bases his opinion before his opinion is admissible in evidence. Ark. State Hwy. Comm’n v. Johns, 236 Ark. 585, 367 S.W.2d 436. Neither rule applies to a landowner when testifying as to the value of the land he owns. A landowner’s opinion as to the value of his' land is admissible in evidence whether he knows anything about land market values in the area or not. His value opinion is admissible in evidence simply because he owns the land and is qualified to state an opinion as to the value of what he owns. Ark. State Hwy. Comm'n v. Fowler, 240 Ark. 595, 401 S.W. 2d 1.

Of course, such opinion testimony, either by the landowner or his value witnesses, may be stricken on motion if there is no fair or logical basis for its support. Ark. State Hwy. Comm'n v. Geeslin. 247 Ark. 537, 446 S.W.2d 245. Once the landowner or his qualified expert witness has expressed into evidence his opinion as to fair market values, the burden then shifts to the condemnor to show by cross-examination that the landowner or the witnesses has no logical basis to support his opinion before such testimony is subject to being stricken from the record on motion. Ark. State Hwy. Comm'n v. Johns, 236 Ark. 585, 367 S.W.2d 436; Ark. La. Gas Co. v. McGaughey Bros.. 250 Ark. 1083, 468 S.W.2d 754. If on cross-examination, the condemnor is unable to draw from the landowner or his expert witness more than a weak or questionable basis for his opinion, that fact has a bearing on the weight to be given the testimony by the jury, and the testimony should not be stricken on motion. Ark. State Hwy. Comm'n v. Russell. 240 Ark. 21, 398 S.W.2d 201.

On direct examination Mr. Jones testified that he initially purchased 70 acres and had lived on the property for approximately 19 years after he purchased it. He said he used the property for livestock raising and poultry production. He said that at the time of the right-of-way taking in 1969, he had acquired a total of 180 acres; that 80 acres lay south of the highway on the Philpot Road and the rest of it lay where his attorney described it to the jury in the opening statement. He said he was using all of the land for livestock and poultry prior to the taking; that the Highway Department took approximately 25 acres and later came back and took some more for easement. He said his home, barns and chicken house were located on the 80 acres where they are still located, but that because of the taking he has lost the use of 40 acres; that approximately 15 acres of his land was left south of the highway and that it is necessary to travel approximately two miles in gaining access to the 15 acres. He said that prior to the construction of Interstate 40, he had no difficulty with drainage in and around his feed barn, but that since the construction of the highway he does have some drainage problem in his calf lot when it rains. He said his farm was worth $80,000 before the taking; that it has been reduced in value to $60,000 because of the taking and that $20,000 is the amount of his damages.

On cross-examination Mr. Jones testified that he acquired his original 70 acres in 1954; that the house and barns were on the property when he purchased it and are still there. He said he had built a new chicken house and made some improvements on the property since he purchased it. He said he purchased an additional 60 acres in 1956 and purchased ten acres in 1961 for $50 per acre. He said he purchased 40 acres in 1966 for which he paid $60 per acre. Mr. Jones testified that he placed a before and after value on his improvements as distinguished from the before and after value on the land but that he did not break it down into separate estimates. He said he lost the use of 40 acres while the highway was being built; that 15 acres had been severed from the rest of his farm by the highway, and that he simply would not be able to support the number of cattle and produce the amount of hay on the land remaining that he could support and produce on the farm prior to the taking, and that because of the taking his earning power had been reduced. He said his whole farm was damaged because he could not use as much of it since the taking as he could before the taking. He said his chicken house was not damaged as a result of the taking because he could still run the same number of chickens in it. He said he considered his house damaged because it had been reduced in value when considered along with the entire farm.

Mr. Jones’ only other witness, besides himself, was a realtor Eddie Anderson who testified as an expert. Mr. Anderson’s testimony is not abstracted and the Commission relies entirely on its assigned error in the trial court’s refusal to strike Mr. Jones’ testimony.

The cross-examination of Mr. Jones was directed almost entirely to a per acre value he placed on his land before and after the taking. He said repeatedly on cross-examination that he did not value his land on a per acre basis but valued it as an entire unit. We are cited no law and we know of none, which would require per acre valuation on land before a landowner’s value opinion would have a reasonable basis or constitute substantial evidence. As a basis for his value opinion, Mr. Jones testified that he could not derive as much income from his property after the taking as he could before the taking, but he did not say, and he was not asked on cross-examination, how much his income was before the taking as compared with his income after the taking. He said he could not run as many cattle on his property or cut as much hay therefrom after the taking as he could before, but he did not say, and he was not asked on cross-examination, how many cattle he could, or did, keep, or how much hay he could, or did, produce before or after the taking.

It is clear from the record that the jury verdict was for $3,100 moré than any witness, except the landowner Jones, testified the damages to be. Mr. Jones’ testimony was clearly admissible and in our opinion the Commission failed to show on cross-examination that Mr. Jones’ opinion as to the values of his land was without reasonable basis. It is true that in Ark. State Hwy. Comm’n v. Coffman, 247 Ark. 149, 444 S.W.2d 689, we reversed a judgment entered on a jury verdict resting only on the testimony of the landowner who alone fixed the damages at an amount equal to the actual award, but in Coff-man the landowner based his valuation on comparable sales and it was shown on cross-examination that he knew of no comparable sales.

In Ark. State Hwy. Comm'n v. Darr, 246 Ark. 204, 437 S.W.2d 463, we reversed a judgment for the landowner because it was shown on cross-examination that the landowner’s value opinion was based entirely on sentimental attachment and because her deceased husband had advised her not to part with the land. We conclude that the trial court did not err in refusing the Commission’s motion to strike Mr. Jones’ testimony.

Mr. Jones’ expert witness Anderson, testified at length as to the elements of damage sustained to Jones’ land and as already stated, his testimony is not abstracted or questioned on this appeal. We recognize that Mr. Jones expressed a rather weak basis for his value opinion, .but such weakness went to the weight of his testimony to be considered by the jury with all the evidence in the case. Mr. Jones’ value opinion placed his damages at $2,500 more than the jury awarded, and his expert witness placed the damages within $3,100 of the jury award. The jury had a right to weigh and consider all the evidence together, and we are unable to say the jury verdict was excessive or that the verdict and judgment thereon were not supported by substantial evidence in this case.

The judgment is affirmed.


author: Conley Byrd, Justice. George Rose Smith, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Robert CHOATE et al
    73-186
    505 S.W. 2d 731
    Opinion delivered February 19, 1974
    [Rehearing denied March 25, 1974.]

      Thomas B. Keys and James N. Dowell, for appellant.

      Troy Wiley and Joe Gunter, for appellees.
   Conley Byrd, Justice.

The sole issue here is whether appellant Arkansas State Highway Commission can offset the benefits accruing to a piece of property in a second condemnation action against the damages accrued in a prior taking.

The record shows that appellee Robert Choate, Jr. owned a 3.10 acre tract subject to a mortgage in favor of his parents appellees Mr. and Mrs. Robert Choate, Sr. On July 25, 1968, appellant, through a declaration of taking and a deposit in court of $8,000, took 0.21 acres for construction of Highway 67-167 thereby cutting off all access to the remaining portion of the property. Before the trial to determine the damages suffered, appellant filed, pursuant to Ark. Stat. Ann. § 27-1305 (Repl. 1962), a motion to consolidate a second eminent domain action filed on May 26, 1972 in which 0.48 acres was taken from the same tract for construction of Highway 67B. The proof on the motion of the Highway Department showed that the second taking restored highway access to the remainder of the property. While the Highway Department’s witness estimated the damages from the first taking in 1968 to be $8,000, he testified that if the two could be considered as one taking the total damages would only be $5,426. The trial court denied the motion to consolidate.

The Highway Department here argues that the trial court erred in denying “the motion to consolidate in a single proceeding an assessment of all damages and benefits arising from acquisition of highway right-of-way by condemnation of portions of the same parcel of real estate, in the same ownership, for the same continuous highway improvement project.” It cites as authority for its position such cases as Arkansas Louisiana Gas Co. v. McGaughey Bros., 250 Ark. 1083, 468 S.W. 2d 754 (1971); State Highway Comm. of Missouri v. Wright, 312 S.W. 2d 70 (Mo. 1958); and California Department of Public Works v. Chevalier, 52 Cal. 2d 299, 340 P. 2d 598 (1959).

The first taking was accomplished under the authority of Acts 1953, No. 115, § 3 [Ark. Stat. Ann. § 76-536 (Repl. 1957)]. We have held that title vests in the Highway Department immediately upon the filing of a declaration of taking and of the deposit of the estimated just compensation; Rowley v. Arkansas State Highway Comm., 242 Ark. 419, 413 S.W. 2d 876 (1967); and that the Highway Department cannot by amending its complaint and declaration abandon a portion of the lands taken. If the landowner does not immediately vacate the premises upon the filing of the declaration and the making of the deposit, he becomes liable for the reasonable rental value of the property. Capitol Monument Company v. State Capitol Grounds Comm., 220 Ark. 946, 251 S.W. 2d 473 (1952).

When the department exercises its right to condemn the fee title the owner has no right of reversion upon abandonment of the highway. Arkansas State Highway Comm. v. Marshall, 253 Ark. 212, 485 S.W. 2d 740 (1972). The landowner’s measure of compensation is to be determined at the time of the taking. Arkansas State Highway Comm. v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495 (1967). The plans and specifications prepared by the Highway Department for constructing the highway must be taken into consideration in determining the value of the compensation where there is only a partial taking. Arkansas State Highway Comm. v. Littlefield, 247 Ark. 686, 447 S.W. 2d 146 (1969). When damages result from unlawful, improper or negligent construction, the Highway Department takes the position that they cannot be reversed in an eminent domain action and that the owner is relegated in such case to his common law action. Arkansas State Highway Comm. v. Dixon, 247 Ark. 130, 444 S.W. 2d 571 (1969). Of course in such cases the property owner has no remedy at law; Ark. Const., Art. 5 § 20; Roesler v. Denton, 239 Ark. 462, 390 S.W. 2d 98 (1965); and must rely upon a claim before the State Claims Commission.

In Arkansas Louisiana Gas Co. v. McGaughey Bros., supra, there was an action by a corporation for the construction of a pipeline. We there permitted the assessment of all damages arising from the construction of the facility for which the right-of-way was taken including those arising from faulty construction. In so doing we said:

“Whenever the contemplated construction for which a right-of-way is taken has not been completed, damages are assessed upon the presumption that it will be built with skill and proper precautions; however, if construction is complete at the date of the trial, the jury may consider the state of facts then existing in the light afforded by actual construction. The assessment of damages embrace all past, present and future damages, including those arising from faulty construction, which the location of the facility for which the right-of-way is taken may reasonably produce. ...”

In State Highway Comm. of Missouri v. Wright, supra, the plans at the time of the filing of the eminent domain action contemplated access to the highway at the extreme west end of the property. When the roadway was constructed a side road was built adjacent to the property providing access the full length of the property. The court following its rule that eminent domain actions may be amended at any time held the trial court abused its discretion in refusing to permit the pleadings to be amended to show the amendment of the plans.

In People v. Chevalier, supra, both takings were incidental to the construction of the Harbor Freeway in the City of Los Angeles. The freeway plans to prevent some dead-end city streets required the taking of some property not actually used by the Harbor Freeway. Because the property owner questioned the authority of the state to condemn that portion of its property being taken for the city’s street, the state and the city by agreement each filed eminent domain actions which the trial court consolidated for trial. The California Supreme Court there held that “[s]ince the state and city were acting in cooperation toward accomplishing the same improvement, there was no abuse of discretion in consolidating the actions for the purpose of allowing an evaluation of the combined effects of the project.”

No case upon which appellant relies has gone so far as to hold that damages and benefits resulting from separate works which do not form part of a continuous improvement can be assessed in the same proceeding. Neither do those cases involve two eminent domain actions filed as much as four years apart. The authorities which do permit consolidation of separate takings consistently point out that the damages and benefits resulting from separate works which do not form part of a continuous improvement cannot be assessed in the same proceeding. See Crawford v. City of Des Moines, 255 Iowa 861, 124 N.W. 2d 868 (1968).

Admittedly the rule as to the allowance or disallowance of benefits against damages would work both ways — i.e., when the first taking results in more benefits than damages should the property owner recover full damages in a second taking without regard to benefits. Some authorities take the position that once the rights become vested the situation would seem to be no different than as if the owner of the property had sold the right which was taken in the first eminent domain proceedings leaving him with some interest in the property. See Crawford v. City of Des Moines, supra, and 27 Am. Jur. 2d Eminent Domain § 356.

While the Highway Department here contends that the two takings were “for the same continuous highway improvement project,” this assertion is not sustained by the record. The record shows only that the July 25, 1968 taking was for construction of Highway 67-167 and that the May 26, 1972 taking was for construction of Highway 6.7B. There is nothing in the record to show that the construction involved in the 1968 taking was not complete before the filing of the 1972 action. Consequently, whether we treat the first taking as a closed transaction because of the great time lapse, because of the vesting of title or because the record does not demonstrate that the separate taking was a part of a continuous improvement, the result is the same. Accordingly, we conclude that the trial court did not abuse its discretion in refusing the motion to consolidate.

Affirmed.

George Rose Smith, Brown, and Jdnes, JJ., dissent.

George Rose Smith, Justice,

dissenting. The majority, in the view of the case that they take, have not found it necessary to state the facts that I regard as controlling.

Choate owned a 3.1-acre tract. The Highway Department, in connection with the construction of a controlled-access highway, filed an action to condemn 21/100ths of an acre, plus the landowner’s rights of access thereto. The effect of that action was to deprive the owner of vehicular access to his remaining property, leaving it landlocked.

Thereafter the Highway Department filed a second action, to condemn an additional 48/100ths of an acre. The second taking was evidently for the purpose of restoring the owner’s access to his land and in fact had that effect. The Department asked that the two cases be consolidated, so that the landowner’s actual damages could be determined in the light of both takings. The landowner resisted that motion, insisting that the two cases, involving the same tract of land, be tried separately, as if one had no bearing upon the other. The trial court sustained the landowner’s position, with the result that the first case was tried as if the second taking did not exist.

It is fair to say that the trial understandably became a farce to everyone in the courtroom except the members of the jury, who were of course unaware of the true situation. Choate, the landowner, testified that his property, which included two commercial buildings rented to a third person, was worth $45,000 before the taking but only $200 after the taking, because he had no access to it. His expert witnesses and, perforce, those of the condemnor gave similar opinions. Needless to say, the picture thus presented to the jury was purely imaginary, for on the day of trial Choate presumably had complete access to his property, not only then but for all time to come. The jury’s verdict was for $20,000 — which was not for the trivial acreage that was actually taken but for the entire tract, including the improvements. Thus Choate emerged from the trial in the remarkable position of still owning his property and at the same time being paid in full for it by the State.

There is nothing novel about the consolidation of two lawsuits. The statute provides for that procedure when it appears to be reasonable. Ark. Stat. Ann. § 27-1305 (Repl. 1962). In fact, the theories of the two complaints do not even have to be consistent with each other, as they actually are here. Only a few years ago, when a cause of action in tort and a cause of action for breach of warranty could not be joined in the same complaint in Arkansas, it was standard procedure with attorneys in products liability cases to file separate suits upon the two theories and then ask that the cases be consolidated for trial. No one questioned that procedure, because it obviously led to a just result — which is what the law should be all about.

In the case at bar, according to the landowner’s argument, the two condemnation cases could not be joined or consolidated because of our holding in Rowley v. Ark. State Highway Commn., 242 Ark. 419, 413 S.W. 2d 876 (1967). There the Highway Department, upon filing an action to condemn a tract of land, also filed a declaration of taking (as in the case at bar), by which it acquired the fee simple title to the property. Later on the Department sought to amend its complaint to abandon a portion of the tract. We refused to allow the amendment, holding that if the Department had taken more land than it needed it was at liberty, under the statutes, to sell the property. Consequently the landowner could not be forced to take back a part of his land.

That case and this one are wholly dissimilar. Here the Highway Department is not seeking by amendment to take less land than before. To the contrary, it seeks to take more. In effect it is mitigating the landowner’s damages. Why then should that involve a separate suit, not subject to consolidation, when the same landowner and the same tract of land are involved? Apparently the majority’s position is that the Rowley case is in point, for the reason that the first suit took Choate’s access to his land, while the second suit would give back that access. The analogy is obviously unsound. In the Rowley case the Department, having taken too much land, was in a position to dispose of the surplus by public or private sale. But, in the case at bar, just how would the Department go about making a sale of the access to Choate’s land? Thus Rowley has much the same similarity to this case as night has to day. I would reverse the judgment and direct that the two cases be consolidated for trial, as the only means of assuring justice to all concerned.

BROWNand Jones, JJ., join in this dissent.

       The Highway Department did not contend in the trial court that the second taking was “ . . . for the purpose of restoring Choate’s access to his land.”


author: Conley Byrd, Justice.

text:
    Cheryl Earlene Rich BOND v. James Wesley RICH
    73-226
    505 S.W. 2d 488
    Opinion delivered February 19, 1974

      Esther M. While, for appellant.

      No brief for appellee.
   Conley Byrd, Justice.

Prior to June 4, 1970, the appellant Cheryl Earlene Rich (now Bond) and the appellee James Wesley Rich and their three children Garlyn Eugene Rich, Melinda Gaylene Rich and Angela Lynn Rich, then age 7r 5 and 3, respectively, were neighbors of Joseph Andrew Bond and his wife Marilyn. The Bonds had four children. The Riches separated on June 4, 1970, and Cheryl took her three children to Michigan. While there she received Aid to Dependent Children from the Michigan Welfare Department and lived in open adultery with her former neighbor Joseph Bond. On November 12, 1970, the trial court denied Cheryl’s divorce petition but granted appellee a divorce upon the grounds of adultery. The divorce decree awarded custody of the three children to appellee.

The record shows that Marilyn Bond as late as January 13, 1971, still held some hope that her marriage to Joseph Bond could be salvaged. However, on March 26, 1971, a divorce was obtained and some three days later the appellee and Marilyn Bond were married and took up residence in Springdale, Arkansas, with appellee’s three children and Marilyn’s four children. After the marriage one child was born.

Following the Bond divorce on March 26, 1971, Cheryl and Joseph Bond were married on April 1, 1971. They took up residence in Forrest City, Arkansas. Marilyn enrolled in an LPN nurses’ training course and Joseph was a route salesman with L. B. Price Mercantile Company.

Cheryl filed a petition for change of custody on December 21, 1971, which resulted in a consent decree on February 3, 1972, leaving custody with appellee but giving Cheryl extensive visitation rights including all of the non-school months. Thereafter appellee filed a petition to modify the February 3rd order to change that portion which allowed every other week-end visitation rights during the school months to once a month visitation rights. On August 24, 1972, Cheryl filed a petition to remove primary custody from appellee to her.

When the matter came on to be heard the only visual change between the conditions as they existed on February 3, 1972 and the time of the hearing in January, 1973, was that Cheryl and Joseph Bond now live in Little Rock where he is now District Manager for the same employer and Cheryl has a job with the Arkansas Training School for Girls.

The school records show that the children are doing well in school.

Based upon these facts the chancellor after seeing and hearing the witnesses found that there had not been a sufficient change of circumstances since the February 3, 1972 custody order to warrant a modification thereof. For reversal the appellant contends; that the trial court erred in holding that it could not look behind the February 3rd order; that the appellee is estopped to assert that the trial court may not go behind the February 3rd order; and that the trial court erred in finding that there was not a sufficient change of circumstances to justify awarding custody to appellant.

The law on the subject was stated in Henkell v. Henkell, 224 Ark. 366, 369, 273 S.W. 2d 402 (1954), in this language:

“It is well settled that a decree fixing the custody of a child is final on conditions then existing and should not be changed afterwards unless on altered conditions since the decree was rendered or on material facts existing at the time of the decree, but unknown to the court, and then only for the welfare of the child. Weatherton v. Taylor, 124 Ark. 579, 187 S.W. 450; Reynolds v. Tassin, 212 Ark. 1020, 208 S.W. 2d 987. While any agreement as to custody the parties may make in contemplation of divorce is of some importance as tending to show their attitude, it is not binding on the courts. Burnett v. Clark, 208 Ark. 241, 185 S.W. 2d 703. We have frequently said that the paramount and controlling consideration in cases of this nature is the welfare of the child. Phelps v. Phelps, 209 Ark. 44, 189 S.W. 2d 617.”
The chancellor listened to three days of testimony and the record contains 27 pages wherein he explained the law and his reasons for not going behind the February 3rd consent decree and for denying a change of custody. We cannot say that he incorrectly applied the law nor that his findings are contrary to a preponderance of the evidence.

Affirmed.

Harris, C.J., dissents.


author: Frank Holt. Justice.

text:
    SOUTHWESTERN BELL TELEPHONE Company v. Charles M. BROWN
    73-113
    505 S.W. 2d 207
    Opinion delivered February 19, 1974

      Donald K. King, Ronald T. LeMay, and William A. Hough, for appellant.

      Paul D. Capps, for appellee.
   Frank Holt. Justice.

The appellant seeks reversal of the Workmen’s Compensation Commission’s order, affirmed by the circuit court, which awarded retroactive benefits upon approval of appellee’s petition for a change of physician. Appellant contends the commission’s award “contradicts the law.” (Ark. Stat. Ann. § 83-1311 [Repl. 1960].)

Appellee Brown suffered an admittedly compensable back injury in May, 1970, as an employee of the appellant. The appellant company’s physician referred appellee to Dr. Ross, an admittedly qualified orthopedic surgeon, who prescribed conservative treatment until August, 1970, when appellee returned to work. He was paid full salary during this period of disability. In March, 1971, after reexperienci'ng pain in his back and a leg, a neurosurgeon excised a bulging L5 disc and Dr. Ross at the same time performed a surgical fusion. Appellee returned to work in July, 1971, after receiving payment of his full salary for this period of his disability. The operation did not relieve the appellee of his pain. However, he was advised by the appellant that a change of physicians would not be permissible unless approved by the commission. Consequently, on September 17, 1971, appellee filed a petition with the Workmen’s Compensation Commission for a change of physician to Dr. Chakales. The petition was controverted by appellant and on November 22, 1971, a referee conducted a hearing and (September 19, 1972) granted appellee’s petition. During this interval, or until June, 1972, both parties presented to the referee numerous medical reports and opinions which reflect a distinct divergence of views between Drs. Ross and Chakales with respect to the solidity of the fusion operation performed by Dr. Ross in March, 1971.

The commission, in upholding the referee’s opinion, found that the appellee claimant continued to experience pain after his first operation and his healing period had not ended and therefore he should be allowed a change in physician. The appellant was ordered to pay Dr. Chakales’ medical bills retroactively and in the future. The commission also ordered appellant to pay appellee temporary total disability benefits from October 7 through November, 1971, during the time appellee was hospitalized by Dr. Chakales for an examination. The appellant had not paid appellee any wages or benefits during his hospitalization. The circuit court affirmed the commission’s decision.

Appellant agrees that since the commission has approved the appellee’s petition for a change of physician, it is obligated to pay appellee Brown’s medical expenses and temporary disability benefits from and after September, 1972,’the date of the referee’s award which was approved by the commission. Appellant asserts, however, it is not obligated to pay appellee disability benefits or his medical expenses which were incurred before approval of the petition. That interval is from October, 1971, (appellee’s first treatment by Dr. Chakales which followed the filing of his petition for change of physician in September, 1971) to September, 1972. Appellant takes the position that § 81-1311 does not allow these interim payments, because they were incurred later than six months after the injury; appellee was advised by the appellant it would not be responsible for such expenses unless approved by the commission; and, further, that the commission does not have the authority to authorize and require a retroactive payment of benefits upon the approval of a change of physician. We do not agree.

The responsibility placed upon the employer by § 81-1311 is:

The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during the period of six [6] months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require. If the employer fails to provide the services or things mentioned in the foregoing sentence within a reasonable time after knowledge of the injury, .the Commission may direct that the injured employee obtain such service or thing at the expense of the employer, and any emergency treatment afforded the injured employee shall be at the expense of the employer.
The Commission may order a change of physicians at the expense of the employer when, in its discretion, such change is deemed necessary or desirable.

In the case at bar, we are presented for the first time with the question of the financial responsibility of an employer for medical bills (as well as disability benefits) incurred on examination by a second doctor, selected by the employee, between the time of employee’s petition for a change of doctors and approval of the petition.

Appellant relies upon Caldwell v. Vestal, 237 Ark. 142, 371 S.W. 2d 836 (1963), for the proposition that the claimant acts at his peril in selecting his own doctor in preference to the employer’s and must show successful treatment from his selected doctor before the employer is responsible. However, in Caldwell, the claimant did not petition for a change of physician before submitting himself to another doctor.

In the instant case, the claimant actually petitioned the commission for a change of physician before making a change. Furthermore, his petition was subsequently approved by the referee and commission. It is true, on the record before us, that the uncertain physical condition of the appellee claimant is yet undetermined; however, the commission had for its consideration factual disputes between the doctors as to the necessity or desirability of reattempting a fusion as a result of the removal of the bulging disc. Radiologists were also in disagreement. Appellee claimant continued to see Dr. Ross, who considered the fusion solid, on the advice of his attorney until October, 1971, or approximately one month after he had filed his petition for a change of physician. Dr. Ross stated in his report that he did not see “any reason why Mr. Brown could not return to full heavy labor” although he could not explain appellee’s continued pain. A few days later. Dr. Chakales stated in his report that the appellee’s condition should be repaired surgically with a reattempt at fusion. Other medical reports continue to reflect this medical disagreement. The last one was dated June, 1972. In this report. Dr. Chakales persisted in his opinion, after reviewing x-rays, that further surgical intervention and exploration were necessary to determine whether an extension of the fusion was needed to relieve the existence of pain. Following this report the issue was submitted to the referee who filed his opinion approving the change of physician in September, 1972, or approximately three months later.

The appellee testified that his pain at times was so unbearable that he could “barely walk;” he felt as if he was going to “come apart” at his lower back and he was gradually coming “unglued” because of his pain; appellant’s doctor would tell him “it’s nothing to worry about" and that “the fusion was good;” he kept seeing appellant’s doctor upon the recommendation of his attorney in order to determine what improvement he had experienced; finally, he had to quit work because of the pain and before seeing Dr. Chakales; at the time of the hearing (November, 1971), he was unable to bend or stoop and was unable to perform heavy labor such as climbing poles and stringing lines, which was the nature of his work with the appellant; and if his petition for a change of physician were approved, he was willing to have a second operation on his back.

It cannot be said that the conflicting evidence, when viewed most favorable to the appellee, is insubstantial to support the commission’s finding. Furthermore, if there is any doubt about the power and authority of the commission, in the circumstances of the case at bar, then another well-known rule of law is applicable; i.e., the controlling consideration in the interpretation of a Workmen’s Compensation statute is that the act must be liberally construed with all doubts resolved in favor of the claimant which is necessary to effectuate the beneficent and humane purposes of the act. Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200 (1972). Significantly, the act provides that the employer must promptly provide an injured employee medical, surgical and hospital service “as may be necessary during the period of six [6] months after the injury, or for such.time in excess thereof as the Commission, in its discretion, may require.'1' (Emphasis added.) It is undisputed that the appellant, to its credit, furnished medical attention to its employee Brown far in excess of six months after the injury. As indicated, however, the statute clearly vests in the commission the authority to extend the compensation benefits past a six month period.

As to the validity of the retroactive feature of the commission’s order, the act unequivocally provides that it is within the discretion of the commission to grant a petition for a change of physician. The referee aptly stated, which the commission reiterated, that “ [I] t cannot be expected for claimant to merely patiently wait while the wheels of justice turn in order to get relief from his symptoms.” In Hartz, we reaffirmed that u[T]he public, as the bearer of the ultimate burden of compensation protection, has a material interest in the minimization of the risk of an injured employee becoming the object of public charity or public relief.” There is no language in the act or inference which can fairly be drawn that the commission cannot award retroactive benefits. There is no evidence whatsoever that the appellee was “shopping” around for medical attention. He sought the advice and treatment of only one doctor, who appellant agrees is a qualified orthopedic surgeon, and appellee is willing to subject himself to another operation to reduce his constant and disabling pain. In the circumstances, we are firmly of the view that we cannot say the commission abused its authorized discretion.

Affirmed.


author: CARLETON HARRIS, Chief Justice.

text:
    John Frank GIBSON v. STATE of Arkansas
    CR 73-155
    505 S.W. 2d 735
    Opinion delivered February 25, 1974
    [Rehearing denied March 25, 1974.]

      Wm. M. Herndon, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   CARLETON HARRIS, Chief Justice.

Appellant, John Frank Gibson, was charged by information with the crime of Assault with Intent to Rape. On trial, Gibson was convicted by the jury and sentence was entered in accordance with the jury verdict of ten years imprisonment. in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, three points are relied upon which we proceed to discuss in the order listed.

It is first asserted that the court erred in not directing a verdict of acquittal at the close of the case, being, of course, another way of saying that the evidence was insufficient to support the verdict. Pamela Elaine Sullivan, nine years of age at the time of the alleged occurrence, testified that she went back and forth to school on the school bus; that on March 14, 1972, after getting out of school at 3:30 P.M., she caught the bus which took her as far as Stuckey Road. There, she departed from the bus and commenced walking the approximate one-half mile towards her home. A man driving a truck stopped and inquired where she lived and after answering the question, the man invited her to get into the truck, stating that he would take her home, and that he had to go to the store. Instead of proceeding on the road, however, he pulled off on to a dirt road and took her to a shack. From the record:

“He took me, he got me out and took me into the shack. And he started unzipping his pants and I told him not to. And he said, ‘If you don't let me do whatever I want to, I’ll hurt you.’ And then he rubbed his thing against mine. And then he took me back to the truck, and he made me take off my underwear and he started doing it again.”

Following this, he told her to get back in the truck and he then took her part of the way home. Pamela stated that after being picked up, they passed several people on the road that she knew. The child described the truck, described her attacker, and appeared to be a very intelligent witness. On either the same night of the occurrence or the next morning, Pamela identified this man from a lineup at the police station. At the trial, she likewise positively identified him as her assailant, and stated that the only difference in his appearance was that he no longer wore his long sideburns.

After being let out of the truck, the little girl went to.the home of her grandmother, with whom she stayed until her parents came home from work, and who lived across the street from the parents. She advised her grandmother of what had happened and the latter notified the police. Subsequently, she told her parents about the occurrence and she was taken to a physician, Dr. Albert Johnson of Jacksonville, who examined her. The doctor testified that his findings were consistent with attempted sexual intercourse. There was no penetration, and on cross-examination, when asked if the condition which he found could have been caused by other things, the doctor answered, “Quite possible.” Jimmy Hall, 31 years of age and a cousin to Pamela, testified that he saw the little girl and the man riding in the pick-up truck which he described in the same manner as the prosecuting witness. Karen Lynn Wilson, a schoolmate of Pamela, testified that she saw Pamela with a man in a pick-up truck, the man having long “pork chop” sideburns.

Sherrill Jones, another classmate, also testified that she saw “Pam” with a man, and she, on the witness stand, identified appellant as the man she saw with Pamela on that date. She also mentioned that he looked different only to the extent that he did not have the long sideburns down his face. She also had given a description of the person observed in the truck to the police.

Appellant denied the occurrence and used the defense of alibi, i.e., he attempted to establish that he was somewhere else at the time the offense occurred. He admitted having made inconsistent statements to the prosecuting attorney in this respect. His defense was corroborated by his wife, and on the witness stand by Irma Jean Gerbine, his sister-in-law, although she, too, appeared to have made previous inconsistent statements. At any rate, the question of credibilility of the witnesses was, of course, a fact question to be decided by the jury. The State’s evidence was ample, if believed, to sustain the conviction; in fact, we have said many times that the testimony of the prosecuting witness alone is sufficient to sustain a conviction. See Gerlach v. State, 217 Ark. 102, 229 S.W. 2d 37. Appellant’s contention of error is without merit.

It is next asserted that the State failed to prove the crime of Assault with Intent to Rape as set out in Ark. Stat. Ann. § 41-607 (Repl. 1964). This point is really tied in with the other, and counsel contended at the trial that the proof reflected a “fondling” case rather than a case of assault with intent to rape. See Ark. Stat. Ann. § 41-1128 (Repl. 1964). We do not agree. The testimony of Dr. Johnson relative to the irritated area, in conjunction with the other facts reflected by the evidence, was sufficient to justify the jury in finding appellant guilty of the greater offense. The record doto not reveal that any instruction was requested on the offense of fondling a child.

The third and final point for reversal is stated as follows:

“That the State failed to provide the defense with a line-up photograph utilized by the investigating officers wherein the defendant appeared in the photograph when a Motion for A Bill of Particulars was filed for and on behalf of appellant which was filed to provide the defense essential information and evidence to prepare his defense and that after demand was made for this missing photograph in open court at the time of trial and the failure of the State to produce such photograph was in violation of the appellant’s constitutional rights under the Fourteenth Amendment to The United States Constitution under the due process clause and that such failure to produce the photograph was prejudicial to appellant’s constitutional rights.”

This point relates to the testimony of Sherrill Jones, who, as previously set out, saw Pamela in the truck with a man and who identified Gibson at the trial as the man she saw in the truck. It will be recalled that she testified that the only difference in his appearance (on trial) was the fact that he no longer wore his long side-burns. No questions were asked Sherrill on direct examination as to whether she went to the police station or made any identification there. On cross-examination, in response to a question from defense counsel relative to when she was first asked to make an identification, it developed that she had made an identification at the sheriff’s office of a picture of a lineup of five or six men and had picked out appellant as the man she saw in the truck. Counsel made no objection at that time concerning the picture, although conducting quite a lengthy cross-examination, but upon concluding his examination, stated that he would like to have the lineup picture; that a Bill of Particulars had been requested and that such a picture had not been included in the Information turned over to him. He then asked for a directed verdict of not guilty because of the State’s failure to give the jury the benefit of all the investigation in the case. The deputy prosecuting attorney responded that defense counsel had been given access to his entire file and had spent two or three hours examining it; further, that he (the State’s attorney) did not have any picture of a lineup and had not seen any picture of a lineup, and he further pointed out that under stipulation entered into by counsel, the permitted examination of his file and the written Bill of Particulars furnished counsel, would be accepted in lieu of further discovery. Defense counsel stated that the only reason the photograph was not in the file was because the only person in the photograph that possessed pork chop sideburns was the appellant. A motion for directed verdict was again made, but denied.

We do not agree that prejudicial error has been shown. In the case of Simmons, et al v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S. Ct. 967, the Supreme Court stated that it was unwilling to prohibit the use of initial identification from a photograph, and observed that this procedure had been used widely and effectively in enforcing criminal laws. It was there pointed out that the danger of a conviction based on misidentification could be substantially lessened by cross-examination which exposed to the jury the method’s potential for error. The court then said:

“Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood or irreparable misidentification.”

This holding was quoted in our own case of McClain v. State, 247 Ark. 33, 444 S.W. 2d 99, wherein we held suggested error because of pretrial identification through a photograph to be without merit.

Here, let it be remembered that the photograph observed by Sherrill was either on the same date, or the day after, the alleged crime had been committed, and it was over a year later that the trial of appellant was held. On trial, Sherrill identified appellant in positive terms as being the man she saw in the truck, even though he no longer had nis sideburns. Furthermore, she had given a description of the person that she had observed in the truck to the investigating officers before ever seeing any picture, and had had an opportunity to observe him twice, once when he passed her with Pamela in the truck, and once when he travelled toward her on his return. This was the important testimony of this witness. Not only that, but defense counsel’s remarks about the photograph, and his contention that it had been deliberately left out of the file, were made before the jury and that body was entirely aware of his contention. We find appellant’s argument to be without merit.

Of course, the prosecuting witness made her identification from the lineup itself and the testimony of the witnesses describing the truck was potent evidence.

It appears from the record that appellant received a fair trial and no prejudicial error occurred.

Affirmed.

       From the record:
      “It was an old, black truck, and it had a light blue top, and it had a bedstead behind the cab, and it had two, little pictures on the left side of the windshield of a spider web and a ghost.”
      Appellant was arrested that night driving a truck of this description.

       From the record:
      “He was short and kind of plump, or something like that. And he had long side burns, and he had wavy hair, and he had on boots, and he . . . And I told them [the police] about the truck, and I told them what the truck looked like.”

       From the record:
      “QNow, what condition did you find the vaginal area to be in of this little girl?
      A There was redness and irritation of the labia, lips of the vagina.
      Q Now, was her hymen ruptured, Doctor?
      A No, sir.
      Q Would you explain to the jury where the hymen is located in the vaginal canal?
      A Well, the hymen is a ring of tissue just at the entrance to the vagina, past the labia. The labia, approximately a half inch or so thick, and just past that is a ring of tissue that we call a hymen, a ring of thin tissue.”

       Mr. Hall was unable to identify the person that he saw in the truck.


author: GEORGE Rose Smith, Justice.

text:
    Danny BAUGH v. STATE of Arkansas
    CR 73-160
    505 S.W. 2d 519
    Opinion delivered February 25, 1974

      Brockman, Brockman & Gunti, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   GEORGE Rose Smith, Justice.

The appellant was charged with driving while intoxicated, the second such offense within a year, was found guilty by the jury, and was fined $250. Ark. Stat. Ann. §§.75-1027 and-1029 (Repl. 1957 and Supp. 1973). He is correct in his contention that the trial court erred in allowing the jury to be told, before they considered the issue of guilt or innocence, that a second offense was involved. We so held in an identical case, Francis v. City of Benton, 240 Ark. 738, 401 S.W. 2d 729 (1966).

We cannot, however, sustain the appellant’s further argument that the charge should be dismissed because there is no such crime as “driving while intoxicated, second offense.” Even though the jury should not initially be told about that aspect of the case, the accused cannot complain about the reference in the information to a second offense. Quite the contrary, it is essential that the State make that fact known to the accused, so that he may have an opportunity to dispute the assertion of a prior conviction. The information in the case at bar seems to be amply clear to serve its purpose, but if the defendant had difficulty in understanding it his remedy was to ask for a bill ol particulars. Ark. Stat. Ann. § 43-1006 (Repl. 1964).

Reversed.

HARRIS, C.J., not participating.


author: LYLE Brown, Justice.

text:
    David Joe WINBERRY v. STATE of Arkansas
    CR 73-173
    505 S.W. 2d 497
    Opinion delivered February 25, 1973

      Box and Hall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   LYLE Brown, Justice.

David Joe Winberry entered pleas of guilty to three felony charges and was sentenced to twelve years. Four months thereafter appellant filed a petition for post-conviction relief under our Rule I. The trial court denied the petition without an evidentiary hearing and on the basis of information contained in the records. One month thereafter appellant filed a second petition for post-conviction relief and set forth grounds not contained in his first petition. The trial court treated that petition as one for appeal. Appellant contends (1) that an attorney should have been appointed to represent him in presenting his first Rule I petition, and (2) that the second petition for post-conviction relief should have been heard on its merits in that appellant did not intelligently or understandably waive all grounds for relief by the filing of his first petition.

With reference to the first point, the court was not obliged to appoint counsel for appellant, when the court determined there was no necessity for an evidentiary hearing. Rule I (D) clearly indicates that counsel shall be appointed for an indigent defendant when there is to be a hearing conducted on the defendant’s petition.

With respect to the second point, appellant was not entitled to file a second petition for post-conviction relief. Rule I (H) requires all grounds for relief to be stated in the original or amended petition. Owen v. State, 249 Ark. 903, 462 S.W. 2d 469 (1971); Grayer v. State, 242 Ark. 640, 414 S.W. 2d 870 (1967).

Affirmed.