author: Carleton Harris, Chief Justice.

text:
    Arnold v. Anders
    5-3693
    397 S. W. 2d 798
    Opinion delivered January 10, 1966

      Charles L. Carpenter and Virginia E. Earn, for appellant.
    No brief filed for Appellee.
   Carleton Harris, Chief Justice.

Clarice Shetter Arnold died testate on November 25, 1963. She left surviving a husband, George A. Arnold, age 70, appellant herein, two sons, Tom Anders, a resident of Fullerton, California, and Bryant H. Anders, of Seattle, Washington, appellee herein. Two granddaughters and a grandson are also mentioned in her will. Following her demise, Arnold was appointed executor of the estate as provided in the will. This instrument purportedly devised real estate located at 407 West “J” to appellant, but title actually vested in Arnold for the reason that the property had been held as an estate by the entirety. This property is legally described as Lot 3, Block 53, Park Hill Addition to the City of North Little Rock, and will hereafter be referred to as the Park Hill propei’ty. Mrs. Arnold devised to her son, Bryant Anders, real estate located at 111 East 23rd Street, legally described as Lot 12, Block 4, Wildberger’s Addition to the City of North Little Rock. This property will be hereafter referred to as the 23rd Street property. Several other bequests were made to parties not involved in this appeal, and the residuary clause devises and bequeaths all remaining property to Mrs. Arnold’s grandchildren. Mr. and Mrs. Arnold had been married ten years at the time of her death, and appellee is the stepson of appellant.

Appellee returned from Seattle to North Little Rock at the time of his mother’s death, and lived with appellant until this litigation commenced. On December 4, 1963, Anders, as a single person, executed a warranty deed to Arnold, conveying certain property located on Lake Conway in Faulkner County. The consideration recited is $10.00, and, following the description of the property in the deed, there is a clause as follows:

“(Bryant Henry Anders is the son of one Clarice D. Arnold by a former Marriage, and he hereby Deed all his Undivided Interest herein to his Step-Father George A. Arnold. The original Deed was recorded in Book 167 at page 200 on August 21, 1963.) ”

Arnold testified that he paid Anders $2,000.00 for this deed. Anders testified that he was paid nothing for the deed, and that he was just giving Arnold his (Anders’) interest in the property. “He was very upset about not having the Conway property, and I certainly didn’t want it.” Admittedly, some time later, according to Anders, “in December or early January,” Arnold did give Anders $2,000.00, but appellee stated that this represented half of the value of government bonds that had been cashed. “He said that was my part of the bond money.” On February 5, Arnold executed a deed to Anders conveying the Park Hill property, and, on the same date, Anders (still as a single man) executed a quitclaim deed to the 23rd Street property to Arnold. This deed urns never recorded, and subsequently, on March 6, 1964, Anders gave C. F. Henderson an option to purchase this property. The option recites that Henderson has paid $2,333.33, and agrees to pay two more installments in the same amount, the first installment being payable within sixty days. The last paragraph of the option contains language as follows:

<<#*#Bryant H. Anders agrees to furnish C. F. Henderson with a marketable title and abstract brought up-to-date free from any liens and encumbrances. In the event Bryant H. Anders is unable, for any reason, to do this, full restitution will be made to C. F. Henderson for any amounts he has paid on this contract.”

In the meantime, on February 28, Arnold had instituted suit against Anders, asserting that he had been induced to convey the Park Hill property to appellee by virtue of fraudulent misrepresentations; that Anders had promised to repair and make improvements on the real estate in Faulkner County, which Arnold had purchased from Anders for $2,000.00; that Anders held no right, or interest, whatever, in the Faulkner County property, and appellant prayed that his deed to the Park Hill property be cancelled and that he also be given judgment for the $2,000.00 paid to Anders for the Faulkner County property. It was asserted that appellee took advantage of appellant’s poor physical condition, lack of business experience, and the close family relationship. After an answer had been filed, denying the allegation of fraud, the case proceeded to trial. After hearing the evidence, the court entered its decree, finding that Arnold executed the deed to the Park Hill property “free from undue influence or misrepresentation,” and that this deed was given in consideration of the execution of the deed from Anders to Arnold conveying the 23rd Street property. The court, however, found that Anders wrongfully obtained from Arnold the sum of $2,000.00 “by executing a deed to plaintiff to property in Faulkner County, Arkansas, to which defendant has no title, and that by reason thereof, the plaintiff should have judgment herein against the defendant for said sum of $2,-000.00,” and Arnold was given a lien on the Park Hill property to enforce the $2,000.00 judgment. Anders, who was actually married, was also directed to convey the 23rd Street property free and clear of the dower and homestead rights of his wife. From this decree, appellant brings this appeal. For reversal it is asserted that the transactions were the result of fraud perpetrated by appellee, who took advantage of the implicit trust placed in him by appellant.

Pertinent testimony developed the following facts:

Bryant Anders held no interest whatsoever in the lake property in Faulkner County. This property, under the residuary clause, had been devised to grandchildren of Mrs. Arnold. Appellant had been under the impression that the lake property had been held jointly by him with his wife, but an examination of courthouse records revealed this to be untrue. The evidence is clear that Arnold was more interested in this property than any other, and desired to live on the lake. Anders, 41 years of age, stated that, at the time he executed the deed (to Faulkner County property), he was not aware of the fact that he held no interest, and had told Arnold, “If any part of it is mine, I will sign it over to you.” However, Anders did not convey his possible interest by a quitclaim deed, but instead, executed a warranty deed to the property, though, he testified he knew the difference between a warranty and quitclaim deed. Admittedly married, he executed the instrument as a single man. Arnold stated that he paid $2,000.00 to Anders for this deed. Appellee denied this, but did admit that Arnold had “given” him $2,000.00 within a few weeks of the transaction.

The evidence reflects that the two men were very close, and Arnold placed implicit trust in appellee. Appellant testified that their relationship was very close, and that Anders constantly called him “Papa Dear.”

As previously stated, the two lived together until shortly before this litigation, and Anders assisted appellant with his duties as executor of the estate. They made some trips together searching for property which had belonged to the deceased. At Searcy, Mrs. Arnold had owned some rent property, the income being $40.00 per month. According to Joel C. Cole, who succeeded Arnold as administrator, about March 20, 1964, the records reflected that Anders had collected the money from this rental property for a four months period, having directed that it be deposited to his personal credit in the American National Bank (of North Little Rock). Cole testified that, after he took over as administrator, he (Cole) arranged for the money to be paid to the estate. Anders admitted that the money had been deposited to his account, but stated that Arnold was with him when this was arranged, and appellant had said, “That was perfectly all right.” At the Bank of Searcy, according to Arnold, the parties located between $250.00 and $300.00. Arnold testified that he (Arnold) said, “Well, we will leave it in here and he said, ‘No, let’s draw it out,’ and so we drew it out and I said ‘What will we do with it?’ He said, ‘I will take it down to Little Rock and put it in a separate account and we will use that to pay on the funeral bill. ’ So I drew it out and he took the money out of the window and we came back to Little Rock and he was going to put it in a separate account in a bank in Little Rock and I suppose he did.” Anders testified that Arnold got $100.00 of this amount, and he (Anders) used the balance “to live on.”

Anders also testified that his relationship with his stepfather was very close, and, when asked if Arnold had trusted Mm implicitly, made no answer. Mrs. Corinne Rogers, connected with the Wallace Realty Company, who testified on behalf of Anders, stated that Arnold had told her in the very beginning that Anders was looking after everything for him. This confidence in appellee is well demonstrated by the fact that Arnold gave to Anders his power of attorney.

Appellee testified that the exchange of conveyances was simply an even swap, without any other consideration. The Park Hill property (deeded by Arnold to Anders) was appraised by the F.H.A. at $14,750.00, and Ned Dumas, a real estate agent, appraised it at $11,-500.00. The 23rd Street property (deeded by Anders to Arnold) was appraised by Dumas at $7,500.00. Irrespective of wMch appraisal is correct on the Park Hill property, it is obvious that there was quite a bit of difference in its value and that of the 23rd Street property. Arnold testified that Anders was to spend several thousand dollars fixing up the lake property in Faulkner County, and this was a part of the consideration for his exchanging the Park Hill property for that on 23rd Street. Anders denied this statement, but did testify that Arnold asked him about fixing up the lake property; that he (Anders) did not know what Arnold meant by “fixing it up,” but that he did tell appellant that he would be delighted to do anything he could to help.

It is disputed whether Arnold ever had possession of the deed to the 23rd Street property. Arnold testified that he never did see the deed. Anders testified that “both” deeds had been in the possession of Arnold, and had remained in the latter’s desk drawer for a week after the transaction; that Arnold decided that he did not want to go through with the transaction, and brought the 23rd Street property deed into the living room and placed it on the coffee table. This last testimony was verified by Webster Pickard, uncle of Anders, who stated that he was present at the time. This evidence (that Arnold had been in possession of “both” deeds for a week,, if Anders was referring to the Park Hill property) is somewhat puzzling, since the deed to Anders of the Park Hill property was recorded on February 6, one day after execution. The deed to Arnold from Anders, conveying the 23rd Street property was never recorded. Mrs. Rogers, heretofore referred to, testified that when the deeds were prepared in the real estate office, a fellow employee remarked, “Be sure and record these,” and that Anders replied that he would. According to her recollection, Arnold was not given the deed that he was to receive. It is interesting to note, though of no great consequence, that Anders only executed a quitclaim deed to the 23rd Street property. Here, again, he executed it as a single man. We next find Anders giving an option to Henderson for the purchase of the 23rd Street property (March 6, 1964).

The court found that Anders “wrongfully obtained” the $2,000.00 from Arnold, which means that the court found that Arnold paid this consideration for the Faulkner County property, but we think the Chancellor should have gone further, and cancelled the Park Hill property conveyance. We agree with the trial court that the testimony is not sufficient to establish Arnold as mentally incompetent, but we think the evidence of the close relationship between Arnold and Anders was sufficient to bring this case within the rule stated in Norton v. Norton, 227 Ark. 799, 302 S. W. 2d 78. One thing is certain. Appellee was the person who clearly benefited from all transactions. In his deed to the lake property, he conveyed nothing—for he had nothing to convey. He received $2,000.00 for this conveyance, as found by the court. In the Park Hill—23rd Street transaction, he obtained a piece of property, which, under the evidence, was worth, at the least, several thousand dollars more than the property which he in turn conveyed. Even then, the conveyance that he executed was inadequate in that it did not release dower rights of his wife. In Norton we held that the facts were such as to place the burden of proof on the person who received the benefits to establish that deeds were freely and voluntarily executed by the person who sought to set them aside. Prom the opinion:

“* * *In Gillespie v. Holland 40 Ark. 28, 48 Am. Rep. 1, cited by appellees, the court announces the doctrine from which there has been no deviation, as follows: ‘It has been the well-established doctrine in equity that contracts, * * * will be scrutinized with the most jealous care when made between parties who occupy such confidential relation as to make it the duty of the person benefited by the contract or bounty, to guard and protect the interests of the other and give such advice as would promote those interests. And this is not confined to cases where there is a legal control . . . They are supposed to arise wherever there is a relation of dependence or confidence, especially that most unquestioning of all confidences which springs from affection on one side and a trust in a reciprocal affection on the other. The cases for the application of the doctrine can not be scheduled. They pervade all social and domestic life. The application may sometimes be harsh, and one might well wish that an exception could be made, but there is a higher policy which demands that it should be universal. The language of Lord Kingsdowne, in Smith v. Kay, 7 H. of Lords Cases 750, has been considered striking. He says that relief in equity will always be afforded against transactions in which ‘influence has been acquired and abused, in which confidence has been reposed and betrayed.’ ”

It is true that Norton involved a mother and son, which is not the case here. However, the evidence does -make clear that Arnold had the utmost confidence and trust in his stepson, and that appellee was the dominant party in carrying out the transactions. This trust and confidence, coupled with appellant’s age and evident ignorance of legal matters, brings the case within the holding heretofore cited, and entitles appellant to the relief sought.

Under the views herein expressed, Lot 3, Block 53, Park Hill Addition to the City of North Little Rock, Arkansas, should be restored to appellant, and the deed to this property from Arnold to Anders, should be can-celled, set aside and held for naught; Lot 12, Block 4, Wildberger’s Addition to the City of North Little Rock, Arkansas, should be restored to appellee, and the deed from Anders to Arnold should be cancelled, set aside, and held for naught. The judgment for $2,000.00 in favor of Arnold against Anders is affirmed, and the cause is remanded, with directions to enter a decree not inconsistent with this opinion.

      Arnold resigned as administrator because, as he stated, “I decided it was too much. There was some bonds that still couldn’t be accounted for and it just got too complicated for me to find out where the bonds was and Mrs. Ham [attorney] decided we needed somebody to look after that and take it over.”

      The two also entered business together, further evidencing their close relationship, but the venture was not successful.

      It is not entirely clear from the record whether Anders was referring to the 23rd Street property deed and the Park Hill property deed, or to the 23rd Street property deed and the Faulkner County property deed, though the record indicates the Park Hill property deed, and too, the Faulkner County deed had been executed two months earlier.

      At the time of this trial, Henderson had a suit pending to recover $1,166.00 from Anders, which had been paid on the option to purchase the 23rd Street property, and which had not been returned.


source: Caselaw Access Project

license: Public Domain

text:
    Bean, Judge v. Roberts, Judge
    5-3863
    397 S. W. 2d 784
    Opinion delivered January 10, 1966

      Pro Se, for appellant.

      Pro Se, for appellee.


author: Ed. F. McFaddin, Justice.

text:
    Roberts, Judge v. Brown
    5-3865
    Opinion delivered January 10, 1966.

      Pro Se, for appellant.

      Pro Se, for appellee.
   Ed. F. McFaddin, Justice.

These are two friendly suits to have this Court determine the meaning .and effect of Act No. 96 of 1965 insofar as the Act relates to the situation confronting the litigants. These "two cases (Nos. 3865 and 3863) were submitted to this 'Court on Monday, December 13, 1965, and memorandum briefs were furnished thereafter; and on Monday, December 20, 1965, we issued a per curiam 'which read:

“In No. 5-3863, Bean, Judge v. Roberts, Judge, the petition for prohibition is denied.
“In No. 5-3865, Roberts, Judge v. Brown et al., the petition for writ of certiorari is granted and the restraining order vacated and set aside.
“An opinion will be subsequently delivered in these cases, but this per curiam is effective immediately.”

'This, now, is the Opinion mentioned in the per curiam.

The Fifth Judicial Circuit is composed of the. Counties of Conway, Faulkner, Johnson, Pope, and Yell. ■.(See Act No. 31 of 1889, as amended by Act No. 146 of 1955.) At the General Election in 1962 Judge Wiley W. Bean was elected as Judge of the Fifth Judicial Circuit, and took office on January 1, 1963 for a 4-year term, and is now serving as such Judge. Prior to the 1965 Legislature there was only one judge for the Fifth. Judicial Circuit. The 1965 Legislature found that there-was a large backlog of cases in the Fifth Judicial Circuit, and Act No. 96 of 1965 created for-a limited time (until December 31, 1966) a Second Division of the Circuit Court in each County in the Fifth Judicial Circuit. Section 5 of the said Act No. 96 fixes the time for holding-circuit court in the Second Division of each County in the Fifth Judicial Circuit. Acting under his constitutional and statutory powers the Governor of Arkansas on February 23, 1965 appointed and commissioned Hon. Russell Roberts as Circuit Judge of the Second Division of the Fifth Judicial Circuit for the term ending December 31, 1966 and Judge Roberts is now serving as Judge of the Second Division, and Judge Bean is serving as Judge of the First Division, pursuant to the terms of said Act.

The regular terms of circuit court in Johnson County, as fixed by statute (Ark. Stat. Ann. § 22-310 [Repl. 1962]), are the first Monday in February and September; and Judge Bean, as Judge of the First Division, proposes to hold Court in Johnson County on these days, particular reference being to the first Monday in February as presenting the situation before us. The Act No. 96 specifies that the terms of the circuit court for the Second Division in Johnson County are the first Monday in December and July.

On the first Monday in December 1965 (December 6th) Judge Roberts had an order entered recessing his Second Division Court to December 8th. On that day lawyers were present; and Judge Roberts set a large number of cases for trial to begin on Monday, January 17, 1966, and appointed Jury Commissioners to select a trial jury for service in the Second Division beginning January 17, 1966. Judge Bean became apprehensive that the Second Division Court, beginning on January 17, 1966, would interfere with his regular term beginning on February 7, 1966; and for that reason, and others, Judge Bean issued an order on December 9th, 1965, restraining the Sheriff and all other officials from calling-jury Commissioners to select trial jurors for Judge Roberts’ court, scheduled to be held on January 17, 1966.

In Case No. 3865 in this Court Judge Roberts has filed a petition for writ of certiorari to have Judge Bean’s restraining order brought to this Court and can-celled. In Case No. 3863 in this Court Judge Bean has sought a writ of prohibition from this Court to prevent Judge Roberts from holding the proposed court in Johnson County on January 17, 1966. In such petition Judge Bean alleged: (a) that Judge Roberts did not in fact open the term of court in Johnson County on the first Monday in December, as fixed by statute, and therefore the term lapsed; (b) that the finances of Johnson County are not sufficient to pay the expenses of a jury in the Second Division for January 17, 1966 and also for a jury in the First Division on February 7, 1966; (c) that there is no necessity for Judge Roberts to hold court in Johnson County in January 1966 as Judge Bean can easily dispose of all cases at his term of court beginning on the first Monday in February 1966; and (d) that for Judge Roberts to have court on January 17, 1966 and try the cases he has set for that session will necessarily extend over into February 1966 and thereby interfere with or prevent the regular term of court of the First Division on February 7, 1966, as fixed by statute.

Under Article 18 of the Constitution, the Legislative department of government has the power to determine the various judicial circuits and the time for holding of the courts; so the Legislature had the power to decide that a second division of the circuit court was needed in the Fifth Judicial Circuit and, having so determined, the Legislature had the power to fix the terms of court. Section 1 of the Act No. 96, here involved, reads:

“The Circuit Court of each county of the Fifth Judicial Circuit is hereby divided into two divisions, to be known as the First Division and the Second Division. The present Judge of the Fifth Judicial Circuit and his successors shall be the judge of the First Division and the office held by said Judge and his successors shall be known as Position Number One. The additional judge hereinafter provided for the Fifth Judicial Circuit shall be the judge of the Second Division of the Fifth Judicial Circuit, and the office held by such judge shall be known as Position Number Two of the Fifth Judicial Circuit.”

Section 2 of the Act reads:

“Hereafter there shall be an additional judge of the Fifth Judicial Circuit who shall be appointed by the Governor and who shall hold office until December 31, 1966. Said judge shall possess the same qualifications and shall receive the same compensation as provided for the present judge of the Fifth Judicial Circuit. Said judge shall have the same powers and duties as are conferred upon other judges of the circuits of this State.”

Thus, under the Act No. 96, Judge Roberts clearly has all the powers of a Judge of the Fifth Judicial Circuit, coequal with the powers of Judge Bean. That power includes, inter alia, the setting of cases and the appointment of jury commissioners for the impaneling of juries to try cases. With this understanding and assuming, without deciding, that prohibition might be a proper remedy, we come to the four points listed in the petition for prohibition in Case No. 3863.

(a) The first point urged is that Judge Roberts did not open his Court on December 6th, the day fixed by Act No. 96, and that therefore his entire term lapsed. Assuming, but not deciding, that such a question could be raised in a case like this one between Judges, nevertheless we find no merit in the contention. On December 6th Judge Roberts had the Clerk of the Circuit Court of Johnson County issue an order opening the Court and recessing until December 8th; but Judge Roberts was not physically in Johnson County until December 8th, when he held Court, set cases, and appointed Jury Commissioners to select a jury for trials to begin January 17, 1966. Judge Bean claims that the failure of Judge Roberts to be physically present in Johnson County on December 6th caused the entire term of the Second Division of the Circuit Court in Johnson County to lapse for the full term.

We hold that the December 1965 term of the Second Division of the Circuit Court in Johnson County did not lapse. Even assuming that the order entered by the Clerk on December 6th was not valid, nevertheless, under Ark. Stat. Ann. § 22-115 [Repl. 1962], the Circuit Court would stand adjourned from day to day until December 8, 1965 (the third day); and on that date Judge Roberts was physically present and actually holding Court; so he fully complied with the provisions of Ark. Stat. Ann. § 22-115 [Repl. 1962], even if that section has not been modified by Ark. Stat. Ann. 22-312 [Repl. 1962], which provides that circuit courts 11... . ' shall be open, by operation of law, and shall remain open until the beginning of the next such term of the court; and no term of such court shall lapse by reason of the fact that the court was not formally opened at the beginning of the term.”

(b) The second point urged in the petition for prohibition is that the finances of Johnson County are not sufficient to pay for two juries. There are several answers to this point. In the first place, the statement is a conclusion of the pleader, with no figures to support the conclusion. Furthermore, we doubt if the point could be urged by one judge in a petition against another. Finally, it is not shown that it will cost Johnson County any more to have two juries handle twelve cases each than it would cost for one jury to handle twenty-four cases, assuming these are the number of cases to be tried to juries. Under Ark. Stat. Ann. § 17-409 [Repl. 1956] the expense of holding courts is the first item mentioned. The administration of justice in the courts is, therefore, deemed important enough to put such expenses before other county expenses.

(c) ✓ The third point in the petition for prohibition is that there is really no need for having a term of Second Division Circuit Court in Johnson County at this time. That was a question for the Legislature to decide; and the Legislature decided that there should be a term of circuit court in Johnson County, and such constitutes a complete answer to the point.

(d) The final point is the apprehension by Judge Bean that the trial of cases in the Second Division of Circuit Court, commencing on January 17, 1966, may extend over and interfere with the February term of the First Division. This point brings us to the observation that judges of equal and co-ordinate courts should—and we feel sure they will—show proper comity to each other and each will practice the judicial restraint essential to the “wearers of the ermine.” We feel sure that Judge Roberts will recess his Court so that Judge Bean will have the facilities of the courtroom for his regular term fixed by statute. No adjourned term should seek to preempt the facilities necessary for the regular term. For years and years circuit judges and chancellors throughout Arkansas have ascertained from one another when the court facilities were desired by the other, and hearings have been so arranged as to be smooth and orderly to all concerned. Entertaining, as we do, the views herein expressed, we made the per curiam order of Decern. ber 20, 1965; and now we have stated our reasons for such per curiam.

      This § 22-312 is Act No. 207 of 1951 and was probably passed to overcome the effect of our holding in Bradley v. State, 213 Ark. 927, 213 S. W. 2d 901. Our holding in Sanders v. Killebrew, 233 Ark. 965, 349 S. W. 2d 808, related to county courts and not circuit courts. Our holding in Howell v. Van Houren, 227 Ark. 84, 296 S. W. 2d 428, related to a default judgment rendered by the Circuit Judge when not in the County; so these cases have no direct bearing on the question here.


text:
    Ennis v. Brainerd
    5-3721
    397 S. W. 2d 809
    Opinion delivered January 10, 1966

      Hubert Graves, for appellant.

      Cockrill, Laser, McGehee & Sharp, for appellee.
   Ed. F. McFaddin, Justice.

The present appeal is an aftermath to the case of Black v. Cockrill, 239 Ark. 367, 389 S. W. 2d 881, decided on April 26,1965; and presents the same basic issue except this time the question arises on appeal instead of on mandamus petition, as in the cited case. The issue is the right of a litigant to have a case transferred from the Third Division of Pulaski Circuit Court to the Second Division of that Court when it develops that the lawyers representing the opposing litigants are related within the fourth degree to the Judge of the Third Division.

Miss Linda Ennis, the appellant, a young lady in her teens, received injuries when the car in which she was riding was struck from behind by a car driven by Bill Brainerd, the appellee. In due time action was filed against Brainerd in the Third Division of Pulaski Circuit Court by Miss Ennis, through her father, next friend, and guardian, Neil Ennis. In the same action Neil Ennis also sought recovery for himself individually for the amounts he had expended for hospitalization and medical care for his daughter. Bill Brainerd, by answer, denied all liability. He was represented by the law firm of Coekrill, Laser, McG-ehee and Sharp.

The plaintiffs filed motion on December 14, 1964 that the cause be transferred from the Third Division to the Second Division, since Judge Coekrill, the regularly elected and presiding Judge of the Third Division, was the brother of two members of the firm of lawyers that represented the defendant. Judge Coekrill postponed consideration of the motion until the next day (December 15) and then exchanged circuits with Judge Amsler, the regularly elected Judge of the Second Division of the Pulaski Circuit Court. When the motion to transfer was presented on December 15, 1964 Judge Amsler, presiding over the Third Division on exchange of circuits, overruled the plaintiffs’ motion to transfer to the Second Division. Plaintiffs’ objections to the ruling were noted of record; and it is the refusal of the Court to ' transfer that is discussed in Topic I herein. The causes of Miss Ennis and her father against Bill Brainerd were tried to a jury in the Third Division of Pulaski Circuit Court with Judge Amsler presiding, and resulted in the verdicts hereinafter to be mentioned; and the results of such trial present the issues discussed in Topic II, herein.

I. The Motion To Transfer. We hold that the plaintiffs’ motion should have been granted and the cause transferred to the Second Division; and our holding in Black v. Cockrill, supra, is full authority for our present ruling. In that case we said:

“We think Ark. Stat. Ann. § 22-114 is applicable to the case at bar. The pertinent part provides: ‘Whenever any suit or action shall be * pending *** and it shall appear that the presiding judge of the division in which said action is pending*** is related to either of the parties or their attorneys by blood or marriage within the fourth degree***said suit shall he upon motion of any party transferred to another division of said court’ [Emphasis added.] “Its language is not restricted to who shall be presiding on the dajr of the trial. Its terms are mandatory that the cause shall be transferred to another division at any time during the pendency of the action upon the motion of any party . . . .”

The cause should have been transferred pursuant to Ark. Stat. Ann. § 22-114 [Repl. 1962] previously quoted.

II. Subsequent Events In The Litigation Claimed By Appellee As Defeating Appellants’ Right To Claim Error Of The Court In Refusing The Motion To Transfer. When the motion to transfer to the Second Division was denied, both plaintiffs (Linda Ennis and her father, Neil Ennis) had their objections noted of record. The cause proceeded to trial before a jury, which returned a verdict for Linda Ennis for $500.00 and for her father, Neil Ennis, for $1,424.86. Mr. Ennis has satisfied the judgment in his favor and is therefore not an appellant on this appeal. Linda Ennis alone prosecutes this appeal, insisting that she had the absolute right to have the cause transferred. Appellee Brainerd insists that Linda Ennis has lost the right to claim error regarding the ruling on the motion to transfer since: (a) the cause proceeded to trial; (b) she obtained a verdict; (e) she has not demonstrated that the verdict is too small; and (d) her father has satisfied the verdict rendered in his favor by the same jury that tried Linda’s case.

We find that these matters do not justify an affirmance against Linda Ennis. When a Court denies a motion to transfer the movant can preserve his (her) objections ; and after trial may appeal and still question the ruling of the Court in refusing the motion to transfer. Cole v. Mette, 65 Ark. 503, 47 S. W. 407; Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; Maners v. Walsh, 180 Ark. 355, 22 S. W. 2d 12. These cases arose in instances of transferring from law to equity, or vice versa; but the same basic reasoning is applicable to the situation in the ease at bar. Linda did not have to take a nonsuit and refile the case in another division: she had the right to have her objections noted, and then proceed just as she did.

Appellee’s contention “(e)” seems to be an effort to invoke that line of cases which holds that when a plaintiff receives a verdict which is considered inadequate, the plaintiff must show some other error committed by the Court before he can challenge the inadequacy of the verdict. Our earlier cases on that point are discussed in Wadsworth v. Gathright, 231 Ark. 254, 330 S. W. 2d 94, and also reaffirmed in the later cases of Linxwiler v. El Dorado Sports Center, 233 Ark. 191, 343 S. W. 2d 411; and Humphreys v. Reed, 234 Ark. 861, 355 S. W. 2d 281. The basic reasoning for the holdings in these cases was clearly stated by Justice Frank G. Smith in Smith v. Arkansas Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411:

“When the undisputed evidence shows that plaintiff is entitled to recover substantial damages, a judgment will be reversed which awards only nominal damages, because a judgment for nominal damages is, in effect, a refusal to assess damages. When substantial damages are awarded, a judgment will not be reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages. But a judgment even for substantial damages will be reversed where the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case.”

In the case at bar, appellant Linda Ennis has not alleged in her brief the inadequacy of the verdict (although she may think it is inadequate): she is appealing because the Court did commit error in refusing her motion to transfer. When she demonstrates her right to have the case transferred and that she preserved her record, she has shown error.

Appellee’s point “(d)” is that since Neil Ennis has satisfied the individual verdict which he obtained and is not prosecuting the appeal, therefore Linda cannot be heard to appeal; and in support of that position appellee cites Pigage v. Chism, 237 Ark. 873, 377 S. W. 2d 32. In the cited case there were inconsistent verdicts; that is, there was a verdict against the child and one in favor of the parent. There were no inconsistent verdicts in the case at bar because Linda received a verdict for $500.00 and her father received a verdict for $1,424.86. The fact that Linda’s father has satisfied his personal judgment cannot militate against her rights. When separate verdicts and judgments are rendered for or against two parties on independent causes of action, the failure of one such party to appeal does not defeat the right of the other party to appeal. A. S. Barboro & Co. v. James, 205 Ark. 53, 168 S. W. 2d 202; Maners v. Walsh, 180 Ark. 355, 22 S. W. 2d 12; Moore v. Price, 101 Ark. 142, 141 S. W. 501.

For the error of the Court in refusing the motion to transfer, the judgment, as concerns Linda Ennis, is reversed and the cause remanded.

      That ruling was similar to the one involved in Black v. Cockrill, supra.

      There was also a motion by the plaintiffs that a special judge should be selected to preside over the Third Division, in the absence of Judge Coekrill; the plaintiffs taking the position that Art. 7 § 21 of the Constitution applied. We do not reach that issue in this case since we are holding the motion to transfer should have been granted.

      Of course, since she is still a minor the appeal is prosecuted by her father as her guardian and next friend, but she is the sole appellant.


author: George Bose Smith, Justice.

text:
    Ark. State Highway Comm. v. Russell
    5-3736
    398 S. W. 2d 201
    Opinion delivered January 10, 1966.
    [Rehearing denied February 14, 1966.]

      Mark E. Woolsey, Thomas B. Keyes, for appellant.

      Loohadoo, Gooch & Loohadoo, for appellee.
   George Bose Smith, Justice.

This is an action by the State Highway Commission to condemn, in fee simple, a 28.2-acre strip across the appellees’ cattle ranch. The jury fixed the landowners’ damages at $26,000. The Commission’s principal contention for reversal is that the trial court erred in refusing to strike the testimony of Guy C. Bussell, who, together with his wife, owns the land.

On direct examination Bussell explained in detail the damage that he would suffer as a result of the condemnation. He valued his property at $82,800 before the taking and at $40,350 after the taking. He considered the strip actually being taken to be worth $11,200 (about $400 an acre). He attributed most of his damage, however, to the fact that the controlled-access highway to be constructed will divide his ranch into two tracts effectively separated by the proposed highway. Instead of being able to go directly from one side of his ranch to the other it will be necessary for him to travel at least four miles to cross the highway. As a practical matter Russell will be forced to operate his property as two separate ranches, with the equipment and other facilities on one side of the highway being duplicated on the other side, whereas such duplication was not necessary before the ranch was cut in two. A similar fact situation was presented in Ark. State Highway Commn. v. Union-Planters Nat. Bank, 231 Ark. 907, 333 S. W. 2d 904 (1960), where we observed that the controlled-access highway would bisect a plantation “as effectively as if a high stone wall had been erected down the center of the property. ’ ’

On cross examination the attorney for the highway commission elicited an admission from Russell that the Arkadelphia Country Club had offered him $375 an acre for part of his land and that he had taken this offer into consideration in arriving at his conclusion that the property as a whole was worth $82,800 before the taking. Counsel for the commission, after having drawn this admission from the witness, at once asked the court to strike the witness’s testimony about the value of the property before the taking, on the ground that Russell had taken an inadmissible offer into consideration in forming his opinion. The court denied the motion to strike. It is now insisted, upon the authority of Ark. Highway Commn. v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802 (1963), that the court erred in overruling the appellant’s motion.

We are decidedly of the view that the commission’s contention is untenable. This land has been owned by the Russell family for many years. The present owner, the appellee Guy C. Russell, was intimately familiar with the property and was unquestionably qualified to state Ms opinion about its value. Ark. State Highway Commn. v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S. W. 2d 173 (1959). There is no suggestion that any part of Ms testimony on direct examination was inadmissible. The appellant argues, however, that his testimony should have been stricken simply because he conceded on cross examination that he had taken into consideration an offer—an offer that would not have been admissible had his attorney tried to bring it out during the direct examination of his client.

It is at once apparent that if we sustain the commission’s contention it will hardly be possible in the future for a landowner or an expert witness to give an admissible opinion about the value of property. In nearly every instance a landowner who has known his land for years, or an expert witness who has acquainted himself with a piece of property, takes into account facts that he knows only by hearsay or that for some other reason would not be admissible as independent evidence upon the examination in chief. If the witness’s candid admission that he has considered such matters destroys his testimony, only a dishonest or an ill-informed witness can give an admissible opinion about the value of property.

The overwhelming weight of authority is contrary to the appellant’s present contention. It has repeatedly been held that expert or lay testimony is competent even though it is based wholly or partly upon hearsay. H. & H. Supply Co. v. United States, 194 F. 2d 553 (10th Cir. 1952); Finley v. Board of County Commissioners, 291 P. 2d 333 (Okla., 1955); Hanover Water Co. v. Ashland Iron Co., 84 Pa. (3 Morris) 279 (1877).

The point has been considered by two of our great judges. Judge Learned Hand, in holding that an expert witness could and should take into account a matter that would not have been independently admissible, had this to say: “Be that as it may, it would be absurd to exclude a qualified expert’s appraisal because he had considered such [inadmissible] evidence; indeed he ought to consider it; it is part of the data on which his opinion should rest. It is just because he is an expert, and for that reason able to give its proper weight to all data, that he is allowed to appraise the property at all. No court has held, so far as we can find, that his opinion shall not be received because it is so based in part; and we should not follow its ruling, if there were one, unless we had no escape.” United States v. Delano Park Homes, 146 F. 2d 473 (2d Cir. 1944). Justice Holmes expressed the same thought more succinctly: “An expert may testify to value, although his knowledge of details is chiefly derived from inadmissible sources, because he gives the sanction of his general experience.” National Bank of Commerce v. City of New Bedford, 175 Mass. 257, 56 N. E. 288 (1900).

On direct examination a witness certainly should not be allowed to repeat hearsay statements made by others or to testify about mere offers or other matters inadmissible under the rules of evidence.

On cross examination, however, the situation is entirely different. It n true, as the appellant contends, that if cross examination demonstrates that the witness had no reasonable basis whatever for his opinión, then his testimony should be stricken. Ark. State Highway Commn. v. Johns, 236 Ark. 585, 367 S. W. 2d 436 (1963). Furthermore, if cross examination shows that the witness has a weak or questionable basis for his opinion, that fact has a bearing upon the weight to be given the witness’s testimony. The cross-examining attorney, however, is not entitled to embark upon a fishing expedition with immunity from any unfavorable information he may elicit. He acts at his peril in putting a question that may evoke an answer damaging to his own case. (Our opinion in the Wilmans case, sugra, to the extent that it is contrary to the views stated here, is disapproved and will not be followed in the future.)

The present appeal involves a second point, subordinate to the one we have just discussed. The attorney for the highway commission, in cross examining one of the landowners’ expert witnesses, succeeded in eliciting an admission that the witness had reached his evaluation of the property after condemnation by determining its value before condemnation and then subtracting from that value the specific elements of damage that the witness found to exist. Counsel for the commission was successful in asking the court to strike the witness’s testimony about the value after condemnation, on the ground that the witness had resorted to an inadmissible formula in arriving at his conclusion. It is now insisted that the court should have gone a step farther by also striking"the witness’s testimony about the value of the property before condemnation, the argument being that the witness’s testimony about the “before” value is so closely related to his testimony about the “after” value that the one may be misleading without the other.

We reject this argument. For the reasons stated in our discussion of the appellant’s first contention the trial court was actually in error in striking the expert -witness’s opinion about the worth of the land after the taking. That error, however, was brought about at the highway commission’s own request. Moreover, we are not convinced that the commission was prejudiced by the court’s refusal to strike the witness’s testimony about the value of the land before condemnation.

Affirmed.


author: Paul "Ward, Justice.

text:
    Ark. State Highway Comm. v. Vandiver
    5-3703
    397 S. W. 2d 802
    Opinion delivered January 10, 1966.

      Mark E. Wools eg and Phil Stratton, for appellant.

      Walker, Villines & Spears, for appellee.
   Paul "Ward, Justice.

This appeal concerns the manner by which the jury arrived at its verdict.

On November 5, 1964 appellant, Arkansas State Highway Commission, filed a complaint and declaration of taking in the Circuit Court of Boone County, condemning a small parcel of land belonging to appellee, Maybelle Vandiver, for the purpose of improving and widening U. S. Highways 62-65. Appellee answered, seeking compensation in the amount of $20,000. There was a trial, and the jury returned a verdict in favor of appellee in the sum of $7,150. Appellant filed a motion for a new trial alleging “that the face of the verdict shows it to be a quotient verdict.” The motion was overruled, and appellant now prosecutes this appeal.

The only point relied on by appellant for a reversal is: “The verdict of the jury was a quotient verdict and was contrary to law.” Appellant’s contention and argument is based on page 89 of the record which is quoted verbatim below:

“We the jury find for the Defendant, Maybelle Van-diver, and against the Plaintiff, Arkansas State Highway Commission, and fix her damages in the sum of $7,150.
Filed 3/24/65 Raymond Dwyer
Troy Andrews, Clerk Foreman
4500 X
8000 X
6500 X
6500 X
7500 X
8000 X
8000 X
7500 X
7500 X
7500 X
8000 X
6300 X
12)85,800 (7150 84
18
12
60”

In appellant’s able and well presented argument it appears to us it is erroneously assumed that a ‘ quotient verdict ’ ’ is one and the same thing as a “ verdict by lot. ’ ’ Our own decisions have made a clear distinction between the two kinds of verdicts, approving the former and condemning the latter.

In Speer v. State, 130 Ark. 457 (p. 464), 198 S. W. 113, we said: “Lot involves an element of chance. The quotient verdict is not the result of lottery.” The jury used the same method as used here to reach a verdict in Steed v. Wright, 179 Ark. 812 (p. 816), 18 S. W. 2d 340. We approved the verdict, stating: “The testimony of this witness does not show that they agreed in advance to be bound by such procedure . . . .” The same question here presented was considered in the case of St. Louis-San Francisco Railway Company v. Steele, 185 Ark. 196 (p. 201), 46 S. W. 2d 628, and we approved the verdict. In doing so, we said:

‘ ‘ In any event, their testimony tends to show it was a quotient verdict, and it could not be impeached by the testimony of any of the jurors, whether they agreed to it or not, as having been reached by lot.” (Emphasis added.)

The same result, on similar facts, was reached in The Coca-Cola Bottling Company v. Davidson, 193 Ark. 825, 102 S. W. 2d 833. Likewise, the same question was considered on facts comparable to those here in the case of Kennedy v. Griffin, 195 Ark. 379, (p. 384), 112 S. W. 2d 644. In approving the verdict in that case, we said:

“Even if these calculations be accepted as made by the jury, it would only tend to show a quotient verdict instead of a verdict by lot.” (Emphasis added.)

In Connelly v. State, 234 Ark. 143, (p. 144), 350 S. W. 2d 298, this Court, in a Per Curiam opinion, said:

“These affidavits do not show the verdict against Mrs. Connelly was reached by lot. The worst that can be said of the verdict is that it was a quotient verdict, and not a verdict reached by lot. It is only in a case of a verdict reached by lot that a juror may be heard to impeach his verdict (§ 43-2204 Ark. Stats.) ”

In the case under consideration there is no evidence to show, nor is there any contention, that the jurors agreed in advance to be bound by the quotient figure of $7,150. There is nothing to show or even indicate the jurors, in reaching a verdict, relied on lot or chance instead of deliberation and the exercise of discretion. In fact the trial court, in instructing the jury, said: “You must not use any method of mere chance in arriving at a verdict, but base it on the judgment of each juror concurring therein.”

Accordingly, the judgment of the trial court is affirmed.

Affirmed.


author: Sam Robinson, Justice.

text:
    Maxwell v. Maxwell
    5-3717
    397 S. W. 2d 788
    Opinion delivered January 10, 1966.

      Paul K. Roberts, for appellant.

      Joe Holmes, for appellee.
   Sam Robinson, Justice.

On the 18th day of January, 1964, Mrs. Bernice Maxwell, Administratrix, filed suit in the Perry Circuit Court to replevy a pickup truck from May Maxwell. On the 13th day of February, 1964, the defendant filed a general demurrer to the complaint. The cause was set for pre-trial conference for the 18th of April, 1964; the defendant failed to appear, and default judgment was rendered in favor of the plaintiff.

On the 1st day of May, 1964, the defendant, appellee here, filed a petition to set aside the default judgment. The motion to set aside the default judgment was not acted upon until December 11, 1964, at which time the term of court in which the judgment was rendered had

expired. The court set aside the judgment, and the plaintiff has appealed to this court.

The order setting aside the default judgment at a term subsequent to the one in which the judgment was rendered is a final order and appealable. Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S. W. 199; Blackstad v. Bond & Osborne, 104 Ark. 45, 148 S. W. 262; Robinson v. Citizens Bank of Pettigrew, 135 Ark. 308, 204 S. W. 615.

The motion to set aside the default judgment states that certain letters between the attorneys for the parties were attached as exhibits to the petition. Perhaps in setting aside the judgment the trial court had the benefit of these letters. The letters, however, are not in the record, and neither side has suggested that the record is not complete, and there is no petition for certiorari to send up any part of the record that is not here. As it stands in this court, the record contains no evidence and no exhibits to sustain the trial court’s action in setting aside the judgment.

Reversed with directions to reinstate the default judgment.


text:
    VTR, Inc. v. Tolbert
    5-3724
    397 S. W. 2d 807

      Ward & Mooney, for appellant.

      W. B. Howard and Jaclc Segars, for appellee.
   Sam Robinson, Justice.

Appellee, Wayne Tolbert, is in the wholesale tire business. He handled tires sold by Vanderbilt Tire & Rubber Company from 1954 to 1961, at which time he quit handling tires for that company.

On the 8th day of May, 1963, Tolbert filed this action against Vanderbilt alleging that the defendant company was indebted to him in the sum of $4,294.03 for tires returned to appellant for adjustment; that the defendant was indebted to him in the sum of $3,559.15 for adjustment made by appellee on tires he had on hand and had not returned to appellant at that time; that the defendant was further indebted to him in the sum of $1,185.66 for advertising appellee had paid for on behalf of appellant. There was a decree for the plaintiff, plus interest from September, 1961, on two items, at six per cent (6%) per annum. The defendant tire company has appealed.

VTR, Incorporated lias assumed the obligation of the tire company.

Appellant argues that there was an accord and satisfaction between the parties; that appellee went to appellant’s place of business in Florida for the purpose of adjusting the account, and while there, Mr. Leitman of the appellant company gave appellee a check for $2,681.21. Appellant contends that this check was given in settlement of the account; that there was an accord and satisfaction. But the record is clear that there was no agreement. When Mr. Leitman tried to get appellee to sign something to the effect that the parties had settled the matter, appellee threw the paper on the floor and stated emphatically that it was not a settlement in full. To constitute an accord and satisfaction there must be an agreement between the parties. Alling v. John V. Lee & Sons, 148 Ark. 655, 230 S. W. 1; Dudley v. Adams, 227 Ark. 376, 298 S. W. 2d 701.

Appellant contends that the trial court erred in overruling a demurrer to the evidence filed by the defendant at the close of the plaintiff’s case on the ground that the plaintiff had failed to properly prove a running account, and that the introduction in evidence of the account by appellant did not supply the deficiency. Appellant relies on the language in Ark. Stat. Ann. § 27-1729 (Repl. 1962), to the effect that exceptions may be taken to the ruling of the court. We do not give such a broad construction to the statute. We have held many times that where the plaintiff fails to make out a case and the defendant proceeds and supplies the defect in the plaintiff’s evidence the defendant is not entitled to a directed verdict. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S. W. 135; Ft. Smith Cotton Oil Co. v. Swift & Co., 197 Ark. 594, 124 S. W. 2d 1; Loe v. Hope Oil & Gas Co., 230 Ark. 844, 328 S. W. 2d 74.

The defendant introduced in evidence what it claims to be the entire account between the parties. The account as proved by appellant shows no indebtedness to appellee. The account is not questioned by appellee insofar as it goes. But appellee says that appellant failed to give him credit for $4,294.03 for tires he had returned to the company; that appellant failed to give him credit for advertising that he paid for on behalf of appellant, and that appellant failed to give him credit for $3,559.15 he had refunded to customers in making adjustments for tires that did not come up to the guarantee. The court found for appellee on all items.

We cannot say the decree of the Chancellor is contrary to a preponderance of the evidence. True, witnesses in behalf of appellant who were in a position to know whereof they spoke testified that appellee was given credit for every item for which he was entitled to credit. But even so, appellant, with its record of accounts, was unable to show where appellee was given credit for the items involved in this controversy. Appellant’s evidence regarding these items is not convincing that appellee was given the proper credits. On the other hand, appellee produced evidence that he shipped tires to appellant as he contends he did, and that he paid for advertising on behalf of appellant.

As to the tires appellee had on hand, there is not much difference in what the parties claim on that point. Appellee says that he did not return the tires to appellant because the company had not paid him for tires he had previously returned, but apparently this item has been adjusted by agreement between the parties that the tires in question be turned over to the Dunlop Tire Company. This has been done.

Appellant states as one of its points on appeal that the trial court erred in allowing interest from September, 1961 on two items. The account would bear interest from maturity. Fraser v. Pettit-Galloway Co., 172 Ark. 209, 287 S. W. 1010; 47 C.J.S. 56. We cannot say the Chancellor’s finding in that respect is not supported by a preponderance of the evidence.

Each party, but in different respects, has moved to re-tax the costs. Both motions are overruled.

Affirmed.


author: Jim Johnson, Justice.

text:
    Murray v. State
    5145
    397 S. W. 2d 812
    Opinion delivered January 10, 1966.

      Shaver, Tackett & J ones, for appellant.

      Bruce Bemiett, Attorney General; Russell J. Wools, Asst. Atty. Gen., for appellee.
   Jim Johnson, Justice.

This appeal questions sufficiency of the evidence in a conviction for assault with intent to kill.

Appellant Glen Dale Murray was charged by information in Sevier Circuit Court with the crime of assault with intent to kill Chief of Police Elbert “Cotton” Hughes on November 28, 1964. The statement of facts is adopted from the testimony of appellant’s witnesses. Appellant had been involved in a family ruckus in Little River County on November 28, 1964. After he returned to Sevier County that day, he planned to go hunting and had two rifles in his car. Leaving a gas station at the intersection of Highways 70 and 71, appellant’s car skidded into a ditch on the south side of Highway 70 just west of the intersection. Appellant was trying to extricate his car when the local state trooper, Dale Lemley, saw him and stopped. Lemley had received a call about the Little River County altercation and was told to pick up appellant. Lemley, appellant’s witness, testified on cross-examination: “While I was talking to him, Officers Frank Chandler and Kirk Anderson came to the scene. . . .While talking with Glen Dale Murray near the driver’s door of the State Police car, Mr. Chandler came there and either told the defendant to come with him, go with him, or that he was under arrest, and grabbed him by the back of the arm. Murray jerked loose and starting jumping around with his fist in the air, and I opened my car and told him to come on and get in. He said, ‘The hell with you,’ and kicked my door and made a dive for his car and said, ‘I’ve got a loaded 30.06 and I’ll kill every God-damned one of you.’ That was in the presence of Mr. Chandler, Kirk Anderson, and myself, and Mr. Anderson was close enough to where he could hear it. Cotton Hughes [DeQueen Chief of Police] was coming across the road about that time.” Chandler advised Hughes to watch out because appellant had a loaded rifle. Hughes continued across the highway, pulled out his pistol and squatted behind appellant’s car just as appellant was coming out of his car with a rifle. Chandler was standing behind Hughes at the rear of appellant’s car. As appellant turned, the rifle angled in the direction of Hughes and Chandler, and Hughes shot at appellant three times, striking him twice. Appellant was shot while in the process of sliding across the seat and before completely-disembarking from the car.

Appellant was arraigned on November 30, 1964, and pleaded not guilty. At trial on February 8, 1965, the jury found appellant guilty of assault with intent to kill and fixed his punishment at one year in the penitentiary.

From judgment on the verdict, appellant has prosecuted this appeal contending that there is no evidence that appellant assaulted or intended to assault Chief Hughes.

For affirmance, appellee State urges that appellant failed to save his exceptions. This contention is without merit. The order overruling appellant’s motion for new trial states that appellant saved his exceptions. As was said in Missouri Pac. R. Co. v. Lamb, 195 Ark. 974, 115 S. W. 2d 864, “This assignment of error [sufficiency of the evidence] in the motion for a new trial may be considered on appeal oven though there was no request for a directed verdict, or if one was requested and no objections made or exceptions saved.” Thus we will review this matter on its merits.

Appellant was tried under Ark. Stat. Ann. § 41-606 (Repl. 1964), “Whoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to murder or kill,. . .shall, upon conviction thereof, be imprisoned in the penitentiary not less than one [1] year nor more than twenty-one [21] years.”

This court has had ample opportunity to study and construe this statute. First, let it be observed that it is virtually undisputed that when appellant pulled away from Chandler and started to his car, he threatened to “kill every. . .one of you.” The officers testified that they were acquainted with appellant and there is no contention that appellant did not know they were officers of the law. Certainly from the evidence there was no doubt he knew what they wanted.

“While intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wounds inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to reveal defendant’s state of mind. (Citing cases.) It is not essential that the intent should have existed for any particular length of time before the assault, as it may be conceived in a moment.” Davis v. State, 206 Ark. 726, 177 S. W. 2d 190; Nunley v. State, 223 Ark. 838, 270 S. W. 2d 904.

Appellant eloquently argues that the state failed to prove a specific intent of appellant to assault Chief Hughes, urging that appellant did not know that Hughes was there. This presented a fact question for the jury, which under proper instructions found him guilty of assault with intent to kill. The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Herron v. State, 202 Ark. 927, 154 S. W. 2d 351; Waterman v. State, 202 Ark. 934, 154 S. W. 2d 813.

From a careful review of all the evidence, which discloses the presence on the scene of Chief Hughes when the threats to kill were made, the close proximity of the parties, the audible warning hollered by Chandler to the chief, “Look out, he’s g'ot a loaded gun,” and the pointing of the rifle toward the chief, we cannot say that there was no substantial evidence to support the verdict.

Affirmed.


text:
    Duraclean Co. v. Foltz
    5-3715
    397 S. W. 2d 804
    Opinion delivered January 10, 1966.

      Fletcher Long, for appellant.

      Giles Bearing, for appellee.
   Jim Johnson, Justice.

This case deals solely with the $500 constitutional exemption from execution on debts by contract.

On April 20, 1965, appellant Duraclean Company obtained a judgment in Cross Circuit Court against appellee G-erald Foltz in the sum of $1,300 plus interest. A writ of garnishment after judgment was served the same day on appellee’s employer, the City of Wynne. The city answered, admitting having on hand $130.08 as salary due appellee. Judgment on the garnishment was entered May 7, 1965, against the city for $130.08. Writ of garnishment and interrogatories were again served on the city on May 12, 1965. Appellee filed a schedule of personal exemptions on May 25, 1965, setting out that he owned one wrist watch worth $10.00, a .22 rifle worth $1.00, salary for 30 days dne him from the city of $260.18, one Dodge car worth $600 and one Dodge truck worth $400, both mortgaged for $1700. Appellee claimed as exempt the wrist watch, rifle and 30 days wages, which totaled $271.18.

On May 29, 1965, • appellee’s schedule of personal exemptions was heard by the court. The court found that: “the schedule is in proper form and the personal property claimed therein as exempt does not exceed the amount in value as is exempt from the process of this court under the constitution of Arkansas, and that the time wages do not exceed the amount nor the time same are exempt from garnishment.” From the supersedeas judgment discharging the garnishee and releasing the garnished funds to appellee, appellant has appealed.

For reversal appellant urges that the trial court enlarged appellee’s exemption beyond what is authorized by the constitution or statutes.

Article 9, § 2 of the constitution provides:

“The personal property of any resident of this State who is married or head of a family, in specific articles to be selected by such resident, not exceeding in value the sum of five hundred dollars, in addition to his or her wearing apparel and that of his or her family, shall be exempt from seizure on attachment or sale on execution, or other process from any court, on debt by contract.”

Arkansas Stat. Ann. § 30-207 (Repl. 1962) provides:

“The wages of all laborers and mechanics, not exceeding their wages for sixty (60) days, shall hereafter be exempt from seizure by garnishment, or other legal process. Provided that, the defendant in any case shall file with the court from which such process is issued a sworn statement that the said sixty (60) days’ wages, claimed to be exempt, is less than the amount exempt to him under the Constitution of the State, and that he does not own sufficient other personal property, which, together with the said sixty (60) days’ wages would exceed in amount the limits of said constitutional exemption. . .If the claim of exemption is not valid either in whole or in part, then the garnishment proceedings shall be stayed only as to such amount as the court may determine. Provided that, if the claim of exemption is sustained, the wages of the person claiming such exemption shall not again be seized by garnishment or other legal process, for a period of sixty (60) days. ...”

Arkansas Stat. Ann. § 30-209 (Repl. 1962) provides:

“Whenever any resident of this State shall, upon the issue against him for the collection of any debt by contract of any execution or other process, of any attachment except specific attachment against, his property, desire to claim any of the exemptions provided for in Article 9 of the Constitution of this State, he shall prepare a schedule, verified by affidavit, of all his property, including moneys, rights, credits and choses in action held by himself or others for him and specifying the particular property which he claims as exempt under the provisions of said article, . . . Provided further that, if in any such schedule, it shall appear that the debtor has more property in value than is exempt by law, he shall select his exemptions, and the remainder of such property shall be subject to the levy of the execution, whether the same be included in any former schedule or not. ...”

In Surratt v. Young, 55 Ark. 447, 18 S. W. 539, this court in 1892 said:

“These provisions seem to require that the debtor shall claim his exemptions in specific articles to be selected by him.. . .
“It would seem that the claim of exemption should be made in accordance strictly with the requirements of the statute, and in apt time, that the debtor may have the benefit of the humane provisions of the law in reference to exemptions, and that the creditor may not be prejudiced in his rights.
“Prima facie, all the property of the debtor is subject to sale on execution for payment of his debts. But the constitution confers upon him the privilege of claiming specific articles of his property as exempt fro mexecution, and the statute points out particularly the manner in which this must be done, and provides that when it is thus done, a supersedeas shall be issued to prevent the sale of the property thus selected as exempt.”

And in Blythe v. Jett, 52 Ark. 547, 13 S. W. 137, (1889) we said:

“Under our statute a debtor, claiming property to be exempt from execution, is required to make a schedule of all his or her property, including moneys, rights, credits and choses in action, specifying the particular property claimed as exempt under article 9 of the Constitution of 1874, ...”

Exemptions were more recently considered in Jennings v. Tankersley Brothers Packing Company, (1951), 218 Ark. 776, 238 S. W. 2d 625:

“ [A]ppellants did not comply with § 30-209 Ark. Stats, which specifies that ‘he shall prepare a schedule, verified by affidavit, of all his property, including moneys, credits and choses in action held by himself or others for him and specifying the particular property which he claims as exempt under the provisions of said article, . . . ’ In the case of Scanlon v. Guiling, 63 Ark. 540, 39 S. W. 713, decided in 1897, Justice Riddick, speaking for the court, stated: ‘. . . a defendant cannot be allowed exemptions unless they are claimed in the manner provided by statute. ’ Again in the case of. Griffin v. Puryear-Meyer Grocer Company, 202 Ark. 495, 151 S. W. 2d 656, the following language is used: ‘Under our statute a debtor, claiming property exempt from execution, is required to make a schedule of all his or her property including moneys, credits and choses in action specifying the particular property claimed as exempt under the constitution. .

After reviewing the constitution and statutory provisions and the early and recent cases on exemptions, we fail to see that the trial court enlarged appellee’s exemption or committed error in permitting appellee to claim as exempt from garnishment personal property valued at $271.18.

Affirmed.


author: Frank Holt, Justice. Jim Johnson, Justice,

text:
    Mannis v. State, ex rel. DeWitt School Dist.
    5-3682
    398 S. W. 2d 206
    Opinion delivered January 10, 1966.
    [Rehearing denied February 14, 1966.]

      James L. Sloan, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The issue in this case is the right of appellant to attend a parochial school without being vaccinated against smallpox and, further, whether the school is affording appellant a reasonable education.

The appellee, by the prosecuting attorney and the county school supervisor, filed a petition in the probate court alleging that appellant Roy Mannis, the ten-year-old child of Mr. and Mrs. Floyd R. Mannis, is a neglected child “in that said child is not attending a public or private accredited school by reason of the fact that said child’s parents refuse to have said child immunized or vaccinated against the disease of smallpox”; that because of not being vaccinated the appellant’s education is being neglected and, therefore, a temporary guardian should be appointed by the court for the purpose of having the appellant vaccinated and enrolled in the public schools of DeWitt or some accredited school.

The appellant denied the allegations in the petition except the fact that he had never been vaccinated against smallpox and asserted that to require vaccination would be an invasion of his constitutional rights. The probate court found the issues in favor of appellee and appointed a temporary guardian for the appellant for the purpose of having him vaccinated and then enrolled in ‘ ‘ a public, private, or parochial school where said child will receive a reasonable education.” From this order appellant brings this appeal.

For reversal appellant asserts that he “may not be taken from his parents and forcibly vaccinated against his wishes when such is against his religious belief and practice and the religious belief and practice of his parents and, therefore, in violation of their rights under the Constitution of the United States.”

The appellant and his parents are members of The General Assembly and Church Of The First Born, a religious body whose members believe that vaccination is against the will of God. The sincerity of their views is not questioned. Appellant and other children named in the petition were refused admittance to the public schools operated by the appellee because they had not been vaccinated against smallpox. Thereupon, the Church organized and conducted a parochial school which does not require vaccination as a condition for entrance or ■attendance. Appellant attends this school.

The case at bar is a sequel to Wright v. DeWitt School District No. 1, 238 Ark. 906, 385 S. W. 2d 644. There certain members of this same Church unsuccessfully sought to enjoin the local school district [appellee in the case at bar] from enforcing this same State health regulation requiring the vaccination of all school children against smallpox. There it was argued that such a requirement contravened their religious beliefs and constitutional rights. We reaffirmed our decision in Cude v. State, 237 Ark. 927, 377 S. W. 2d 816, that the questioned health regulation is enforceable as a reasonable and valid exercise of the police power of the State. In the Curie case we said: “It is clear that the law [Ark. Stat. Ann. § 80-1502 (Repl. I960)] requires that the children attend school, and a valid regulation [Health Board Regulation No. 21, 1960 Revision] requires that they be vaccinated.” This health regulation has the force and effect of law. Ark. Stat. Ann. §§82-109-110 (Repl. 1960); Wright v. DeWitt School District, supra. Therefore, a child attending school in non-compliance with this health regulation is doing so in violation of the law. This fact alone is sufficient evidence upon which to base a finding of neglect. Furthermore, the refusal of parents to permit vaccination as a prerequisite to school attendance is sufficient evidence upon which to base a finding of neglect. Cude v. State, supra. The probate court was correct in appointing a guardian for appellant for the purpose of having him vaccinated as a prerequisite to attending school.

Our statute requires that children between the ages of 7 and 15 inclusive must attend “a public, private or parochial school.” Ark. Stat. Ann. § 80-1502. Appellant asserts that since he is complying with this statute by attending a parochial school the vaccination requirement is not applicable because the State Health Regulation applies only to children attending a “public or private school.” We are of the view that a parochial school is also a private school within the meaning of this health regulation since it is managed and supported by a private organization. 78 C. J. S., Schools and School Districts, §1, p. 607.

Nor can it be contended by the appellant that the probate court was without jurisdiction in the case at bar. This issue was determined adversely to appellant in Cude v. State, supra. There we said: “The issue of whether the three children of appellant were neglected was before the probate court in the proceeding for the appointment of a guardian and the court had jurisdiction to determine that fact. ’ ’

The probate court found that the parochial school was not affording the appellant a reasonable education. We deem it unnecessary to determine the reasonableness of the educational facilities. In our view it is sufficient to base this opinion primarily upon the issue that vaccination against smallpox is a valid prerequisite to appellant’s attendance at any school.

Affirmed.

Johnson, J., dissents.

DISSENTING OPINION

Jim Johnson, Justice,

dissenting. In Cude v. State, 237 Ark. 927, 377 S. W. 2d 816, I dissented. My views are expressed there in detail. The spectre foretold there has indeed appeared here. For the reasons so stated, I respectfully dissent in the case at bar.


text:
    Sirratt v. State
    5147
    398 S. W. 2nd 63
    Opinion delivered January 17, 1966

      Joe W. McCoy, for appellant.

      Bruce Bennett, Attorney General; Beryl F. Anthony, Jr., Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, James Sirratt, was charged with the crime of murder in the second degree, the Information alleging that Sirratt feloniously, and with malice aforethought, killed and murdered his wife, Geraldine Sirratt. The trial .commenced in Hot Spring County on January 18, 1965, and ended on the 20th day of January, 1965. Sometime in the afternoon, on January 19, an altercation took place in the corridor outside the courtroom. The court ordered the courtroom cleared of all spectators, appellant objecting on the basis that he was being deprived of a public trial. The next morning, when the trial resumed, the court again cleared the courtroom. Later in the day, the jury retired and reached its verdict, finding Sirratt guilty of voluntary manslaughter, and fixing his punishment at five years imprisonment in the State Penitentiary. Prom the judgment so entered, appellant brings this appeal. While appellant lists five points for reversal, all relate to the same issue, which is, “Was Sirratt denied a public trial in violation of the Sixth Amendment to the United States Constitution, and Article 2, Section 10, of the Arkansas Constitution?” That, then, is the sole issue before us.

Pertinent facts relating to this issue are as follows:

On January 19, while appellant was being cross-examined, the court suddenly called a recess, and retired to chambers where the following proceedings took place:

“The Court: It has come to the attention of the Court there has been a disturbance outside the courtroom. The Court has no way of knowing who was involved, or who started it. In the interest of decorum and in the interest of the courtroom, I believe it will be wise to clear the courtroom. The attorneys may designate the people they feel it is necessary for them to have in the courtroom. The defendant’s attorney may designate the ones necessary for his defense.

Mr. McCoy: I object to the courtroom being cleared. I think we are entitled to open court.

The Court: It has been open so long as the trial could be kept under circumstances that did not interrupt the decorum. Because there was a fight immediately outside the courtroom, with a number of persons involved, I have no way to separate all of those who must go and who must stay. The simplest way is to clear the courtroom.

Mr. McCoy: You have about four deputy sheriffs who could be put in the halls to preserve peace, and it hasn’t been tried. Thereupon, proceedings in chambers concluded.

In open court, the Court directed the sheriff to clear the courtroom of spectators, which was immediately done.

Mr. McCoy: Save my exceptions.”

Following this action, a rather lengthy cross-examination of appellant was conducted by the Prosecuting Attorney, after which there was a re-direct examination, following which another witness testified. The court then recessed until 9:00 o’clock the next morning. At that time, in open court, the court stated:

“In light of the difficulty we had yesterday, I am going to have to ask that the courtroom be cleared and ask you not to congregate in the courthouse or on the courthouse grounds. I want to tell you jurors, this is unusual. The events yesterday were unusual. We don’t want any trouble, and this is the best way to avoid it.”

Another witness then testified, after which instructions were given, and the ease submitted to the jury.

We are aware of only two Arkansas cases on this subject. The first is Hogan v. State, 191 Ark. 437, 86 S. W. 2d 931. There, appellant was tided and convicted of raping a ten-year-old girl, and ivas sentenced to death by electrocution. Among other assignments of error, the appellant urged that the trial court erred in excluding the public from the courtroom, thus depriving him of his constitutional right to a public trial. This court said:

“* * * Appellant objected to the exclusion .of the public from the courtroom on the ground that he was entitled to a public trial under the above constitutional provisions, and that the order of the court clearing the courtroom was an invasion of his constitutional right to a public trial. This objection was overruled, and an exception was taken. The prosecuting witness was then recalled and further examined, and gave very damaging testimony against appellant. We cannot agree that he was deprived of a public trial within the meaning of said constitutional provisions. It was apparent to the court and to every one else in the courtroom, and is apparent to us from a reading of her testimony given on the previous day, that she was terribly frightened and embarrassed to have to go upon the -witness stand in the presence of a courtroom crowded with people and give testimony that must have been embarrassing and humiliating to her to a high degree. Under this situation she failed to give testimony which the- court felt she could give if the embarrassment of the large audience in the courtroom were removed. * * *”

The court then quoted 16 C. J., Page 807, Paragraph 2052, which, in part, states :

“* * * It has also been held under some constitutional or statutory provisions, that in cases where the evidence is of a peculiarly indecent and vulgar character, the court may, in the interest of public morality and decency, exclude from the courtroom all persons except the jurors, witnesses, and others connected with the case, although there are decisions to the contrary.”

The court then quoted from State v. Damm (South Dakota), 252 N. W. 7:

“The order loas effective only during the testimony of the prosecutrix, In view of the nature of the case and the age of prosecutrix, her embarrassment and disturbance are readily understandable. Under all of the circumstances here appearing, we do not think the court abused its discretion or committed prejudicial error by its ruling, or deprived appellant of a public trial within the meaning of the constitutional provisions.”

The other Arkansas case is Payne v. State, 226 Ark. 910, 295 S. W. 2d 312. There, appellant complained that he was not allowed a public trial because several Negroes were not allowed to enter the courtroom. Appellant’s attorney objected, and the trial judge stated that he saw no vacant seats, and overruled the objection. We held that no error was committed.

But the situations that existed at these trials were considerably different from the situation here presented. In jKogan, a little girl, ten years of age, embarrassed at testifying to revolting and lewd facts before a crowded courtroom, was frightened to the extent that she was a most unsatisfactory witness. As a matter of calming down the child, the trial judge cleared the courtroom for ten minutes. As stated in 4 L. Ed. 2d 989, Page 2139:

“There is considerable support for the proposition that in prosecutions for sex offenses the circumstances presented may be such as to make exclusion of the public from the trial proper.”

As to Payne, the general rule is found in 21 Am. Jur. 2d 301, Section 263:

“The requirement that trials be public is satisfied by admitting those who can conveniently be accommodated in the courtroom, where the law requires such trials to be held, without interrupting the calm and orderly course of justice. The right of a defendant is not infringed by the fact that the courtroom is not large enough to accommodate all who wish to attend. ’ ’

It is apparent that in ordering a courtroom cleared for a short period of time to hear evidence of a vile nature, and in prohibiting people from entering a courtroom when there are no vacant seats, a court does not violate a defendant’s right to a public trial, but, of course, these situations have no application to the facts of this case.

The purpose of a public trial is succinctly expressed in 21 Am. Jur. 2d 298, Section 258, where it is stated:

“The guaranty of public trial has always been recognized as a safeguard against any attempt to employ the courts as instruments of persecution. And the common-law right had already, at the time of the Sixth Amendment’s adoption, como to be regarded as an essential guaranty for this purpose. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power, not only as to gross abuses, but also minor ones, such as indolence or potty arbitrariness. Other benefits of publicity have been cited, however; for example, it has been suggested that witnesses may testify more truthfully because of the greater risk that false testimony might be exposed. Public trials are more likely to come to the attention of persons who, though not known to the parties, may possess important information and may volunteer to testify. And the community gains confidence in its courts and in judicial remedies.”

We are of the view that, from the record before us, appellant’s constitutional rights were violated. Of course, the court has inherent power to take necessary steps to preserve order and decorum in the courtroom, and no one could logically argue otherwise. Here, however, the court’s action in clearing the courtroom does not appear essential to the maintenance of decorum. The record does not reflect how the altercation was brought to the attention of the trial judge, but the record does disclose that the disturbance was not in the courtroom at all, but rather, in the corridor outside. There is no suggestion whatsoever from the record that any commotion was taking place in the courtroom itself, nor is there any indication that there were people present in the courtroom who might precipitate some disorder. We know of no case, and none is called to our attention, where a courtroom was cleared because of a disturbance beyond the courtroom. Here, also, there was apparently no effort by the court to ascertain the identity of those responsible for the altercation in the corridor, and, in the absence of a showing that officers would have been unable to quell those responsible for the confusion, it would appear logical that the court, by sending deputy sheriffs to the hall, could have immediately restored order. In People v. Murray (Michigan), 50 N. W. 995, the trial court had directed the bailiff to admit “respectable citizens.” In reversing, the Supreme Court of Michigan said:

“We cannot accept the conclusion of the judge, ‘that the trial was at all times during the same a public trial, within the meaning of the constitution.’ The first clause of section 28 of article 6 of the constitution reads as follows: ‘In every criminal prosecution the accused shall have the right to a speedy and public trial by an impartial jury.’ The right to a public trial is one of the most important safeguards in the prosecution of persons accused of crime. In this case, when the accused is upon trial for a crime, and if convicted his punishment is that he must suffer a life imprisonment,—a civic death,—an order is made by the court which violates the constitutional right of the accused and the statute enacted to protect the rights of parties in both civil and criminal cases. * * *

“In this case it is apparent that the constitutional rights of Murray were violated in the order of the court to the police officer stationed at the door of the courtroom ‘that he should stand at the door, and see that the room is not overcrowded, but that all respectable citizens be admitted and have an opportunity to get in whenever they shall apply.’ It is shown beyond question that during the whole trial the courtroom was not overcrowded, nor were the seats provided for spectators occupied to any great extent. This officer was under the control of the court, and when the court was informed that he was excluding citizens and taxpayers he refused to take any notice of the complaint, and left the officer to exercise his discretion as to what respectable citizens he should admit. * * * The order of the court stationing the policeman at the door, with directions to admit none but respectable citizens, was not only a violation of the constitution, but it was a direct violation of the public statutes of this state. * * * The judge who presided at the trial of this case was as much bound by this provision of law as the humblest citizen. The trial may have been an impartial one; the respondent may have been justly convicted; but it still remains that it was accomplished in violation of his constitutional and statutory right to a public trial.”

Although not argued by the state, it might be mentioned here that the fact that the court offered to permit the defense attorney to designate certain persons to remain in the courtroom, “the ones necessary for his defense,” does not prevent the court’s action from constituting error. See United States v. Kobli (1949 C. A. 3d Pa.) 172 P. 2d 919. The state, in its brief, does point out that at the time of the exclusion order, twenty-four witnesses had already testified, and the accused was at the time testifying on cross-examination. The state says, “The fact remains that most of the trial had been concluded before exclusion of spectators.” It is also pointed out that when the trial resumed the next day, appellant did not renew his objection to the exclusion of the public. As stated in 21 Am. Jur. 2d 299, Section 260:

“The constitutional guaranty of public trial applies to the entire trial and may be violated by exclusion of the public from a part of the trial. The trial, for this purpose, consists of the proceedings for impanelment of the jury, the opening statements of counsel, the presentation of evidence, the arguments, the instructions to the jury, and the return of the verdict.”

We do not think it was necessary for this objection to be renewed since counsel had made it very clear on the day before that he was objecting and excepting to the court’s order clearing the courtroom. Be that as it may, we think reversible error was committed when the public was excluded on January 19. As set forth in 21 Am. Jur. 2d 301, Section 269:

“When a defendant’s right to public trial has been violated over his timely objection, it has generally been held that he is not required to show that he suffered actual prejudice as a result. Some cases state that prejudice is presumed. Others say that when the constitutional right is violated, prejudice is conclusively presumed, or that such a violation necessarily implies prejudice and more than that need not appear.”

Reversed and remanded.

Cobb, J., not participating.

      Amendment 6 to the Federal Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,* * *.” Article 2, Section 10, of the Arkansas Constitution, provides: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial* * *.”

      Emphasis supplied.

      Of course, had this been the case, a proper remedy would have been to remove those particular spectators from the courtroom.

      One other witness testified before court adjourned for the daj*.


text:
    Guynn v. Helena Hospital
    5-3735
    398 S. W. 2d 526
    Opinion delivered January 17, 1966
    [Rehearing denied February 21, 1966.]

      Dinning & Dinning, for appellant.

      Davicl Solomon, for appellee.
   Ed. F. McFaddin, Justice.

This is a workmen’s compensation case, seeking to recover the funeral expenses of Yerna Guynn, who died of typhoid fever; which it was claimed she had contracted in the course of her employment at the Helena Hospital. The only benefit sought was funeral expenses, since the employee was single and had no dependents. The Workmen’s Compensation Commission disallowed the claim; the Circuit Court affirmed; and the case is here on appeal.

Verna Guynn ivas graduated from high school in 1959 and immediately went to work for the Helena Hospital, where she worked continuously until a few days prior to her death on February 26, 1963. It is conceded that Verna Guynn died of typhoid fever; that the Helena Hospital is a general hospital treating contagious and infectious diseases; and that typhoid fever is considered a contagious and infectious disease. Ark. Stat. Ann. § 81-1314(a) (5) reads: “The following diseases only shall be deemed to be occupational diseases . . . (12) infectious or contagious disease contracted in the course of employment in, or in immediate connection with, a hospital or sanatorium in which persons suffering from such disease are cared for or treated.”

That Verna Guynn worked for the Helena Hospital and that she died of typhoid fever are both admitted facts. The disputed question is whether she contracted the disease (infection) in the course of her employment in the Helena Hospital; and it was on that question that evidence was introduced and the Commission’s decision made. For the claimant it was shown that Verna Guynn had not been out of Phillips County in years; that her work at the hospital consisted in ironing linens; and that there had been several cases of typhoid fever in the hospital and the linens from such cases had been washed and ironed in the hospital. From these and other circumstances it was claimed that the only possible place that Verna Guynn could have contracted typhoid fever was at the Helena Hospital.

For the hospital it was shown that Verna Guynn died of a type of typhoid fever known as “salmonella Group D ”; that there had never been a case of typhoid fever in the Helena Hospital of this group; that Verna Guynn never came in contact with any patient in the hospital; and that the linens in the hospital were all carefully washed with disinfectants before Verna Guynn ironed any of them.

.The evidence on behalf of the claimant’s estate could have supported an award; and, likewise, the evidence on behalf of the hospital supports the Commission’s findings. After all, it was a matter of reaching conclusions from the evidence introduced; and the reaching1 of such conclusions is for the Commission in a case like this one, just as it is for the jury in a case tried in the law courts. What we said in Wren v. Jones, 210 Ark. 40, 194 S. W. 2d 896, is apropos here:

“We have, also, held that when facts are made to appear, from which inferences are to be drawn and conclusions reached, then it is for the jury to draw the inferences and reach the conclusions. In Grand Lodge v. Banister, 80 Ark. 190, 96 S. W. 742, Mr. Justice McCulloch said: ‘If the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then they are properly submitted to the jury for determination. Judges should not, under that state of the case, substitute their judgment for that of the jury.’ In St. Louis, I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438, 135 S. W. 338, Ch. J. McCulloch said: ‘When the testimony, though unconflicting, is such that different minds may reasonably draw different conclusions therefrom, then it is the duty of the trial court to submit the issues to the jury for determination, and on appeal the verdict of the jury should not be disturbed.’ In St. Louis, I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786, Mr. Justice Hart said: ‘ The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from the facts, whether controverted or uncontroverted, the question at issue should go to the jury.’ See, also, Mississippi River Fuel Corporation v. Senn, 184 Ark. 554, 43 S. W. 2d 255, and many other cases collected in 16 West’s Ark. Dig., ‘Trials,’ § 142; and see, also, 64 C. J. 346. “Under our Workmen’s Compensation Law the Commission acts as a trier of the facts, i.e., a jury—in drawing the inferences and reaching the conclusions from the facts. We have repeatedly held that the finding of the Commission is entitled to the same force and effect as a jury verdict. ’ ’

Affirmed.

Johnson, J. dissents.

Cobb, J., not participating.

      Hn examining the doctors, the lawyers showed research about typhoid fever; and the doctors also showed knowledge of the subject. Typical of such is the cross examination of Dr. Rodda by Mr. Dinning:
      “Q. Doctor, typhoid is a rather highly contagious disease, is it not?
      “A. Generally yes.
      “Q. Could you also describe it as being infectious?
      “A. Yes.
      “Q. A person can contract typhoid fever by contact with the person carrying the germ?
      “A. Actually the method of transmission is by injesting contaminated material; that is, material contaminated by the excrement of some one that has the disease. This is through water supply or spread of the organisms from material by hand to the food that is injested.
      “Q. Now, that agency, whatever it might be, can remain dormant for long periods of time?

        “A. You mean the ability to transmit it?
      “Q. To transmit it, yes? There is no particular time in which the ability to transmit the disease would terminate as long as it is alive, that’s what I mean?
      “A. That’s right. Without treatment that is true. I think everyone is familiar with the case of typhoid Mary where she transmitted typhoid to many people.
      “Q. And the organism continues to live in the agency which transmits it?
      “A. I don’t know what you mean by agency.
      “Q. The organism, the actual typhoid organism or germ itself continues to live in the agency that does transmit it?
      “A. You mean the individual?
      “Q. Well, in whatever agency transmits it, the water, the sewage?
      “A. Oh, yes.
      “Q. Or the contaminated food, it continues to live?
      “A. Yes.
      “Q. Personal contact is not just absolutely necessary?
      “A. No.”