author: Frank Holt, Justice.

text:
    Wimberly v. State
    5179
    399 S. W. 2d 274
    Opinion delivered February 21, 1966

      Robert L. Shaw, for appellant.

      Bruce Bennett, Atty. General, R. E. “Ship” Wallin, Asst. Atty. General, for appellee.
   Frank Holt, Justice.

An information was filed against appellant charging him with the sale of intoxicating liquor in violation of Ark. Stat. Ann. § 48-803 (Repl. 1964) and, further, alleging two or more previous convictions under the provisions of this statute. Upon trial the jury was instructed that it could find the appellant guilty under the felony provisions of this statute. The jury found appellant guilty of a felony and assessed a five-year penitentiary sentence. A judgment was entered accordingly.

On appeal appellant first contends for reversal that the trial court’s instructions “pertaining to a felony offense were given in error when proof failed to show conviction as a second offender.” Appellant argues that in the absence of proof of his conviction as a “second offender” he could not be convicted as a felon under the terms of Ark. Stat. Ann. § 48-803. The statute, in pertinent part, reads:

“* * * upon first conviction, be deemed guilty of a misdemeanor and shall be fined not less than one hundred ($100.00) dollars, nor more than one thousand ($1,000.00) dollars: for a second conviction, shall be fined not less than two hundred ($200.00) dollars, nor more than two thousand ($2,000.00) dollars; and for any subsequent conviction, shall be guilty of a felony and shall be sentenced to not less than one 1 year nor more than five [5] years in the State Penitentiary.”

We cannot agree with appellant’s contention. The requirement of our statute is that there must be two previous convictions before a subsequent conviction becomes a felony. There is no requirement that a defendant shall be convicted as a second offender before the felony provision applies. Our statute is concerned with prior convictions and not the sentences imposed under those convictions. The general rule is stated in 24B C. J. S., Criminal Law, § 1960 (1). See, also, State v. McAbee, 67 S. E. 2d 417 (S. C. 1951); People v. Gonzales, 262 P. 1115, (Cal. 1928); and State v. Clague, 68 So. 2d 746 (La. 1953). In Cacciola v. State, 172 N. E. 701 (Ohio 1930), the defendant was charged as a third offender for the unlawful possession of intoxicating liquor. There it Avas aptly said:

“To be a third offense, all that is necessary is to charge and establish that there have been two previous convictions of a violation of said statute; it is not necessary that there be a conviction for a first offense and then a conviction for a second offense as such; a conviction counts as an offense whether it be denominated a first or a second one, and the right to impose a penalty for a third offense is not affected by penalties provided by law for prior convictions.”

In the case at bar two prior convictions were alleged in the information, details of the convictions were revealed in a bill of particulars, and sufficient evidence was adduced. Therefore, the court correctly gave instructions relating to the felony provisions of the statute.

Appellant also contends that the trial court erroneously permitted the state to reopen its case shortly after announcing “the state rests” in order to present proof of prior offenses. Appellant objected and then moved for a directed verdict which the court refused. This was not prejudicial to the appellant as the trial court only permitted the prosecution to complete its case before appellant proceeded with his defense. It is within the trial court’s sound discretion, in the furtherance of justice, to permit the state to present other witnesses after the state has rested where the circumstances are such as not to prejudice, the defendant through surprise or otherwise at a time when the disadvantage cannot be overcome. Anglin v. State, 215 Ark. 49, 219 S. W. 2d 421. See, also, Ark. Stat. Ann. § 43-2114 (Repl. 1964). There was no abuse of discretion in the case at bar.

It was also proper for the state to introduce evidence of the appellant’s general reputation with reference to violations of the liquor laws. Ark. Stat. Ann. § 48-940; Thompson v. State, 225 Ark. 1059, 287 S. W. 2d 465.

This opinion is not to be construed as modifying in any manner our very recent opinion in Miller v. State, 239 Ark. 836, 394 S. W. 2d 601. The issue involved there was not raised in the instant case which was tried before our opinion in Miller was delivered.

Having carefully examined appellant’s assignment of errors and finding no merit in any of them, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Osno Cobb, Justice.

license: Public Domain

text:
    Russell v. State
    5144
    399 S. W. 2d 268
    Opinion delivered February 21, 1966
    No brief filed for Appellant.

      Bruce Bennett, Atty. General, Fletcher Jackson, Asst. Atty. General, for appellee.
   Osno Cobb, Justice.

This appellant was convicted of grand larceny and sentenced to four years imprisonment. The record contains no motion for new trial in the Circuit Court. The established practice of this court in situations of this kind is to examine the record to determine whether there is error on the face of the record. Barnhill v. State, 239 Ark. 168, 388 S. W. 2d 99; Whelehon v. State, 233 Ark. 229, 343 S. W. 2d 563.

We have made an examination of the record in this case and find no error on the face of same. The judgment is, therefore, affirmed.


author: Osro Cobb, Justice.

text:
    Avemco. Life Ins. Co. v. Luebker
    5-3790
    399 S. W. 2d 265
    Opinion delivered February 21, 1966

      Smith, Williams, Friday & Boioen and Boyce Tt. Love, for appellant.

      McMath, Leatherman, Woods & Youngdahl and A. E. Townsend, Jr., for appellee.
   Osro Cobb, Justice.

Upon trial to a jury, appellee recovered judgment against appellant for total disability benefits under a certain sick and accident policy issued to appellee by appellant. For reversal appellant urges the following four points:

No. 1. The verdict is not supported by the evidence.
No. 2. In the alternative, the appellee is at most partially disabled and the judgment should be reduced accordingly.
No. 3. It was error for the court to give plaintiff’s requested Instruction No. 3.
No. 4. It was error for the court to give plaintiff’s requested Instruction No. 4.

Appellant’s Points 1 and 2 relate to the evidence and we discuss these points jointly.

•The record reflects that appellee’s disabilities stem from injuries to his back while lifting a heavy sack of farm produce and from chronic inflammation of the veins of his legs. On three occasions blood clots have broken loose in the diseased veins, resulting in pulmonary embolisms that endangered the life of appellee. Appellee’s doctors testified that his condition is inoperable because of the grave risk as to his survival. Indeed, it appears that his survival now depends upon maintaining a delicate balance as to his over-all activities. Complete inactivity is contra-indicated for his serious circulatory problem, and over-activity is likewise contra-indicated as it could cause further blood clots to break loose and enter appellee’s blood stream. Appellee and his wife were the only witnesses to testify concerning appellee’s actual activities during the period involved in this action. This testimony was to the general effect that appellee had been forced by his physical condition to surrender the entire management of his farm enterprises to his sons; that his sole contribution to the operation of the farm properties was that of signing the notes for the necessary financing for the farm operations ; that under the advice of his attending physicians he took short walks interspersed with rest, short trips in his farm truck, usually driven by his wife, went to church each week and attended lodge meetings. Appellee further testified that he was totally disabled from performing his customary duties in relation to the operation of his farm properties.

Appellant produced no witnesses to traverse the appellee’s testimony as to his activities during the period of time here involved.

Appellee’s contentions as to his total disability as to the performance of his usual and customary duties in operating his farm properties were well supported by the testimony of his physicians. Dr. Joseph Buchman, of Little Rock, a physician and surgeon, testified:

“He [appellee] could not perform the usual and customary work as I know it, he just couldn’t do it.” (Tr. 38)

On cross examination, Dr. Buchman testified:

“Yes, sir, I would say as for a farmer though he [appellee] is 100% disabled.” (Tr. 41)

There was much other evidence introduced in support of appellee’s contentions as to his total disability but we do not deem it necessary to relate same in this opinion.

We have concluded that there was substantial evidence adduced in this case to support the verdict of the jury. This holding is consistent with our previous holdings in Alexander v. Mutual Benefit Health & Accident Assoc., 232 Ark. 348, 336 S. W. 2d, 64; Franklin Life Insurance Co. v. Burgess, 219 Ark. 834, 245 S. W. 2d 210; Aetna Life Insurance Co. v. Spencer, 182 Ark. 496, 32 S. W. 2d 310; Monarch Life Insurance Co. v. Riddle, 193 Ark. 572, 101 S. W. 2d 781.

Appellant’s Point No. 3

Appellant urges that any proper instruction as to total disability should contemplate such a state of disability as to prevent the insured from performing all (rather than any) of the substantial and material acts necessary to the prosecution of his business. In earlier cases decided by this court we substantially followed the position taken by appellant. However, in more recent cases we have approved such an instruction as that given by the court in this case, using the word “any.” See Franklin Life Insurance Co. v. Burgess, supra; Alexander v. Mutual Benefit Health & Accident Assoc., supra. We adhere to the more liberal rule and approve the instruction as given.

We therefore conclude that the contentions of appellant as to Point No. 3 are without merit. In doing so, we have not overlooked contentions of appellant with reference to the clause in the subject policy as to personal escort, same having been fully set forth in appellant’s own Instruction No. 4 which was given by the court.

Appellant’s Point No. 4

The challenged Instruction follows:

“If you find from the testimony that Plaintiff Albert Luebker, was advised by reputable physicians that, in the treatment of his condition, it was desirable for him to do a reasonable amount of walking and it was permissible for him to drive a motor vehicle for short distances, and that by virtue of this advice he walked approximately % of a mile a day, around his farm, and that he sometimes drives his pickup truck from his home for distances ranging from a few hundred yards to a mile to carry lunch to his two sons at such times as they are working in the fields and that on a few occasions he went driving alone from his farm to Stuttgart and once or twice to England, you are instructed that such activity on the part of the plaintiff, Albert Luebker, would not be in conflict with the definition of “total disability” as given in said policy and plaintiff, Albert Luebker, would be entitled to recover on said policy, even though he may have engaged in snoh activities, provided he has complied with the other terms and conditions of the policy. ’ ’

This Instruction has given the court considerable concern. It is patterned to a large extent after an instruction approved by us in Mutual Benefit Health & Accident Assoc. v. Murphy, 209 Ark. 945, 193 S. W. 2d 305. This Instruction, however, is more loosely written than the one approved in the Murphy case, supra.

It will be noted in reviewing subject Instruction that all of the detailed acts of appellee referred to in the latter portion of the Instruction are clearly activities which are embraced Avithin the general scope of the recommended activities for appellee in the uncontradicted testimony of his attending physicians. While all of the activities enumerated in the Instruction stayed Avell within the general scope of such recommended activities, some were those testified to by appellee and Avere not specifically set forth by the physicians in their testimony. We think it would have been better for the Instruction to have been so Avorded as to confine same, in relation to the evidence in the case, to the recommendations of the attending physicians as to appellee’s activities; the attempted or actual performance of such recommended activities by appellee; and the legal effect of performing such activities in relation to his claim for total disability benefits under the provisions of his insurance policy.

We have concluded, Avith very considerable reluctance, and largely because of the Murphy case, supra, that the giving of this Instruction did not constitute reversible error. The bar will take notice, however, that cases tried subsequent to this opinion will be examined by us in the light of the recommendations herein contained.

Having found no error in the trial of this case warranting a reversal thereof, judgment of the lower court is affirmed.

An attorney’s fee in the sum of $300 is awarded to appellee’s counsel for services in connection with the appeal in this court, same to be taxed as part of .the cost as provided in Ark. Stat. Ann. § 66-3238 (Repl. 1966).

Affirmed.


author: Oarleton Harris, Chief Justice.

text:
    Union Natl. Bank of Little Rock, Trustee v. Smith
    5-3726
    400 S. W. 2d 652
    Opinion delivered February 28, 1966
    [Rehearing denied April 18, 1966.]

      Ghoivmng, Mitchell, Hamilton & Burrow; By: W. P. Hamilton, Jr., for appellant.

      L. A. Hardin and W. J. Walker, for appellee.
   Oarleton Harris, Chief Justice.

On September 7, 1962, appellee, Dr. Frank C. Smith of Little Rock, established an inter vivos trust, naming the Union National Bank of Little Rock, appellant, as trustee, and specifically declaring the trust to he irrevocable. The doctor transferred and delivered certain promissory notes secured by real estate mortgages, and certain securities, to the trustee, as the original corpus of the trust. Under the provisions of the instrument, income is reserved to Dr. Smith, and upon his death, the income is to be paid to his wife, Abrielia, during her lifetime. Following the death of Dr. Smith and wife, income from the trust is to be paid to Dr. Smith’s daughter, Delores Brown, and her husband, James Brown, in equal shares for life. Upon the death of either Mr. or Mrs. Brown, the survivor is to receive all income for life. Upon the death of the survivor, under the terms of the instrument, the income is to he paid in equal shares to three named children of Mrs. Brown, and following the death of the last of the children, the trust will terminate, and the principal and income shall he paid to the First Pentecostal Church; if that church is not in existence at the time of the termination of the trust, the principal and income shall he paid to the United Pentecostal Church, St. Louis, Missouri.

On September 15, 1964, appellees (Dr. Smith and wife) instituted suit against appellant and the successive beneficiaries, seeking revocation of the instrument, alleging that the trust violated the rule against perpetuities, and further alleging that Dr. Smith was under the influence of narcotics at the time of the execution of the trust to such an extent that he did not understand the provisions thereof, and was mentally incompetent to execute the agreement. Appellant answered with a general denial, and asked that the complaint be dismissed. The case proceeded to trial, and at the conclusion of the evidence, the court held that Dr. Smith was mentally incompetent, did not have sufficient mental capacity to execute the trust agreement of September 7, 1962, and the trust agreement was voided, cancelled, and set aside. From the decree so entered, appellant brings this appeal.

First, let us review the applicable law in a situation of this nature. In Harris v. Harris, 236 Ark. 676, 370 S. W. 2d 121, a fairly recent case, the court reiterated the rule that has been expressed many times in the past:

“There is a presumption of law that every man is sane, fully competent and capable of understanding the nature and effect of his contracts. The burden of proving incompetency rested with the appellee, since he seeks to void the signing of these deeds. In Hunt v. Jones, 228 Ark. 544, 309 S. W. 2d 22, this court said:

“ ‘Since the sanity and mental capacity of Miss McCray to make the deeds in question is presumed, the burden rested on the appellants to show her mental incapacity to execute them by a preponderance of the evidence. Gibson v. Gibson, 156 Ark. 528, 246 S. W. 845. As this court said in Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510: “The familiar principles of law applicable to cases of this kind have often been announced by this court. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.” [Citing cases] ’

“In the Hunt case, Miss McCray had executed two deeds, one in 1953 and one in 1954, which conveyed property owned by her. In 1954, at the age of 86, she died a few months after signing the last deed. Numerous collateral heirs attempted to have these deeds cancelled on the ground of her mental incompetency. Miss McCray also suffered from the disease of arteriosclerosis. Sometimes her mind was clear and at other times she was noisy, belligerent, and mentally confused. Her deeds were held valid.”

The court also said:

“The true test of Quincy’s competency in this case is what was his mental capacity or competency when he signed the deeds on March 28, 1961. No witness who observed him on that date testified that Quincy appeared incompetent then.* * * ”

With this firmly established rule in mind, let us proceed to examine the evidence. Amis Guthridge, a Little Rock attorney, testified that he had known Dr. Smith for approximately twenty years, and that the doctor called him with regard to preparing a trust agreement. Smith came to his office, brought with him notes concerning what he wanted the-trust to provide, and told Guthridge that he desired to have the trust officer of the Union National Bank named trustee. The doctor told Guthridge that he wanted to execute an irrevocable trust. The lawyer stated that he talked to Dr. Smith very seriously and very carefully about the finality of an irrevocable trust. However, the doctor had made up his mind, and he told Mr. Guthridge that the reason he wanted to establish this trust “was that there were so many malpractice suits wherein patients would sue doctors that it had gotten to the point where you could hardly prescribe aspirin for a patient until whereby you might be faced with a malpractice suit and he wanted to do it for that reason to protect what he had and also for the protection of his wife in the event he should pass away and I called Mr. Jerry Bowen and I remember very distinctly when I told him Dr. Smith wanted to make an irrevocable trust, he said, quote, ‘Amis, we do not like to make an irrevocable trust.’ ” According to the witness, this visit by Dr. Smith to the office was on Saturday, September 1, 1962. Tbe trust instrument was ready for execution on Friday, September 7, and Guthridge turned the trust agreement over to the doctor, and made an appointment with Bowen for Dr. and Mrs. Smith to meet with the former at some time during the day. Guthridge himself had an engagement in Fayetteville, and accordingly was not present at the bank when the trust instrument was discussed. The lawyer further testified that Dr. Smith appeared to fully understand how he was disposing of his property, and the matter was discussed fully. The doctor had several pages of handwritten notes, and a detailed account of all his properties. He appeared to know to whom he was transferring the property, their names, and their addresses. Guthridge stated that the doctor appeared in a state of urgency, very anxious that the matter be completed.

Mr. Guthridge stated that, much to his amazement, within a short number of days, Dr. Smith called and told the lawyer over the phone that he (Smith) was not getting from the trust what he had thought he would receive in the way of payments, and he desired that the instrument be changed. It appeared that Dr. Smith had been under the impression that he would get the principal payments as well as the interest payments from two particular promissory notes, and under the trust agreement, the doctor would only receive the interest. After the two conferred with Bowen, the latter became convinced that Dr. Smith had undoubtedly thought that he would obtain the principal, and Bowen agreed to make the change. Guthridge stated that sometime later, Dr. Smith contacted him and wanted the trust revoked. He said that Dr. Smith was very distraught and upset, and was utterly despondent; that the doctor would call him several times a day relative to the matter.

J. H. Bowen, Vice-President and Trust Officer of the Union National Bank of Little Rock, testified that his first contact with Dr. Smith occurred at the time of the execution of the trust agreement on September 7, 1962. Bowen had had previous conversations with Mr. Guthridge concerning the trust, and on September 7 Dr. Smith, with his wife, came to Bowen’s office and had a long discussion relative to the trust agreement. Bowen explained the fact that an irrevocable trust cannot be terminated, and Dr. Smith gave the same reason for desiring to establish the trust, vis, that he was in fear of malpractice suits. According to the witness, the doctor went over the various provisions of the trust very thoroughly, and had with him the notes and the investment trust shares, which were to constitute the corpus of the trust. In Smith’s presence, the assignments of the notes, liens securing the notes, and assignment of the investment trust shares, were prepared. Bowen testified that the doctor appeared familiar with his properties, and that the trustor mentioned that, in addition to what he was then putting into the trust, he was considering selling the house that he occupied, and placing the proceeds from the sale in the trust. Bowen stated that the conversation with Smith, and the time consumed in preparing the various assignments took about an hour and a half, and that during that period, the parties talked about nothing but business and the trust. Subsequently, Guthridge told Bowen that the doctor had felt that the trust was not in accord with his (Smith’s) understanding, and they discussed the propriety of making a change. Bowen testified that he came to the conclusion that the instrument did not properly express Dr. Smith’s intention as to the two notes (previously referred to), in that Smith had actually intended to be able to draw the principal from the notes, as well as the interest. This phase of the trust agreement was then re-written, and a full record made of what had happened, including the reason for making the change.

Bowen testified that he first heard of Smith’s desire to revoke the trust along in the late spring or early summer of 1963, when Guthridge told him that Dr. Smith had been in his (Guthridge’s) office, and wanted to revoke the trust instrument. Smith called Bowen once on the telephone, stating that he wanted to revoke the trust, but was advised by the bank officer that this could not be done.

Gene Barlow, an employee of the Trust Department of Union Bank, testified that Dr. Smith came to his desk in August, 1962, and stated that he wanted to talk about establishing a trust, and questioned Barlow about the difference between an irrevocable and a revocable trust. This was explained to him, and the doctor said that he was worried about his funds, and about malpractice suits. Barlow advised him to consult a lawyer. Barlow subsequently handled the disbursement of the trust funds to Dr. Smith, and he testified that the doctor called and stated the amount he was receiving was not as much as he had expected it to be. Barlow told Smith to take the matter up with Bowen. The witness testified that he had no further contact with Smith until October, 1963, when the doctor expressed his desire to revoke the trust.

Dr. Charles Norman McKinzie testified that he attended Dr. Smith on December 27, 1962. He stated that Smith complained of losing weight, and of having lost Ms appetite, and McKinzie placed Mm in St. Vincent’s Hospital. Dr. McKinzie stated: “My examination at that time revealed an elderly man who would appear to he younger than seventy, lying in bed and quite cooperative.” He testified that Smith was normal and rational, and did not appear to have been under the influence of narcotics.

Dr. Drew Agar, of Little Rock, testified that he examined Dr. Smith on December 28, 1962, at the hospital. He stated that Smith’s muscle movement, body movement, and speech movement, were perfectly normal; that Smith was alert and cooperative, but complained of pain. Agar testified that he could not see any indication of Smith’s being under the influence of drugs, nor did the patient indicate to Agar that he was an addict. The examining physician attributed Smith’s weight loss to the loss of appetite, and the loss of appetite, according to Agar, was caused by the rather severe pain that one suffers from sMngles. Agar testified that Smith had had the shingles, and at the time of the examination, some rash remained on the lower part of the patient’s right chest and abdomen.

Six acquaintances of Dr. Smith testified in his behalf. Roy Bell, who handles securities, testified that he sold the Crown Western shares, mentioned in the trust agreement, to Dr. and Mrs. Smith, and that he had known them for twenty-five or thirty years. Mr. Bell said that Dr. Smith appeared to be sick during the year 1962. However, he stated that the doctor was practicing at that time. In reply to the question of whether he thought Smith was competent to transact business, the witness stated:

“Well I believe, I don’t know, I believe I could have stuck any kind of paper in front of him and told him, ‘Doc, this is it, I want your signature,’ and he would have signed it.”

Bell did not attempt to pinpoint any particular period during 1962.

Coy Andrews was a cab driver, and stated that he had known Dr. and Mrs. Smith about fifteen years; that during 1962 and 1963, he had quite a bit of contact with the two as they would call for taxi service. He testified that he would take them to eat, and that, at times, after ordering food, they would get up and leave without eating it; that at times they would pay him; at other times they wouldn’t, and that on some days they appeared to be confused. Most of the witness’ testimony seemed to refer to the year 1963, and when asked their condition in 1962, Andrews replied, “Well I just, I don’t remember just exactly.” He stated that, in 1962, there were some days when they acted normal, and other days that they did not, and he could not say what their condition was on September 7, 1962.

S. W. McGuran testified that he had known the Smiths for around twenty-five years, and had been very close- to them. He stated that he would visit with appellees, perhaps every two weeks, and he did not recall any time in 1962 when Dr. Smith did not appear to know what he was doing; in fact, the witness said that it was not until 1964 that Dr. Smith appeared to be “shook up.”

Mrs. Mike Bartello stated that she visited the Smiths during 1962, and thought Dr. Smith was sick. She said he appeared “kind of fuzzy like.” When asked if she could state his condition in September, 1962, Mrs. Bartello replied, “Well that I don’t know. It was about the middle of 1962 I have an idea when I was over there last. As far as September, I would not say for sure.”

Mrs. Gladys McGuran testified that she had known the Smiths since 1953, and had worked in their home between 1957 and 1963 at different times. When asked about his condition in 1962, Mrs. McGuran replied, “At times he was a normal, rational man, a very fine man. At other times he was a very sick man. ’ ’

Fred Newth, a Little Rock attorney, testified that Dr. Smith came to his office in the latter part of September, 1962, stating that he was dissatisfied with the trust agreement that had been prepared. Newth said that the doctor was nervous, and complained of difficulty with his daughter, stating that he had loaned her some money, and she would not repay it, and appellee wanted to draw a new will, excluding the daughter. Mr. Newth stated that Dr. Smith asked him in 1963 to try and revoke the trust, but he (Newth) told the doctor that it could not be revoked. Newth prepared a will for Dr. Smith in 1963, in which Mrs. Brown was omitted as a beneficiary, but explained to Smith that he did not think the instrument would have the force or effect of superseding the trust, and he did not charge for preparing it.

It will be noted that the testimony from these witnesses is somewhat contradictory. On one point, however, all are in accord, i.e., they were unable to state the condition of Dr. Smith on September 7, 1962.

Probably the strongest testimony offered by appellee is that of Mr. Eugene Warren, attorney for the Arkansas Medical Board for the past fifteen years. Mr. Warren is also attorney for the Drug Control Division of the State Board of Health, and likewise attorney for the State Board of Pharmacy. According to his testimony, the State Medical Board was given direct supervision of narcotic problems, involving addiction, dispensing, and abuse by physicians, and he was designated as a member of a team formed between the State Medical Board and the Federal Bureau of Narcotics (through their agent in charge). Mr. Warren’s duty was to handle the legal end of drug control cases where physicians were involved as addicts, or were charged with abuse of the Food and Drug Act or the Federal Barbiturate Act. Relative to the investigation of Dr. Smith, Warren stated that about February 14,1964, Dr. Smith’s daughter (Mrs. Brown) came to Little Rock, and discovered her father and Mrs. Smith in a helpless condition. She reported this fact to the Pnlaski County Medical Society. In response thereto, Dr. Thomas D. Honeycutt went to the Smith home, noted the condition of the Smiths, suspected that drugs were involved, and immediately called Warren. The Smiths were removed to the hospital, and the Federal Bureau began its investigation. Under both State and Federal law, a wholesaler, selling a dispensing physician narcotics, must keep a record of the sales. Records were checked, and the witness was furnished a copy by one of the agents of the Narcotics Bureau. Warren testified:

.“I have in my file a report from the investigator of the Division of Food and Drug Control giving the amounts of Butisol Sodium Elixir. This is one of the barbituric acid compounds. It is the trade name purchased by Dr. Smith from the period of May the 9th, 1962—I am reading from the records of the State Medical Board—until January the 28th, 1964.* * *

“From May 9, 1962, to January 28, 1964, Dr. Smith purchased forty-eight gallons of Butisol Sodium Elixir.

a-* * * There are 378.533 grains of barbituric acid in each gallon of Butisol Sodium Elixir. This is 379 grains, about a grain and a half to a teaspoon. There were twenty months involved. Dr. Smith purchased 18,-192 grains of Butisol Sodium Elixir in this period of time. * * *

“* * * This amounts to thirty grains a day average.”

“The information we received, which the entire medical profession became knowledgeable of this particular—this is sort of a new thing, new field of this barbiturate,- addiction to barbituric. It comes from the Addiction Center of the Public Health Service Hospital at Lexington. They tell ns according to their research and tests—they tell ns this in releases and pamphlets and so forth—that between the level of eight and ten grains per day, if a person takes any of the barbituric acid compounds over a period of time, consisting of three to four weeks, that he or she will become addicted at the level of eight to ten grains per day. * * *

“* * * This drug—the person who takes it develops a tolerance. You can’t get addicted until you get a tolerance and you start off—let me go back. At first the Public Health people thought that these barbiturics were just habit forming. There is a difference between habit forming and actual addiction. If the ordinary person took the amount he was taking or he said he was taking, speaking of Dr. Smith, they could not live. You build up this tolerance through a long period of taking and the tolerance itself then requires more of a dose and in order to have some effect, and this in turn brings on the addiction, which in turn brings on the characteristics of the addiction which is much more dangerous we are told than Class A Narcotics.”

Mr. Warren then made certain calculations by dividing the number of days into the number of gallons. He testified that Dr. Smith purchased 27.7 grains a day in 1962. He stated that both Smith and his wife were addicts, and he did not know how much each one consumed ; however, he subsequently stated that Smith took 13.85 grains per day in 1962: “We had to develop this in order to show how much he had increased his tolerance to explain his complete collapse in ’64.” As. stated, this- testimony was entirely the result of compilations, since Warren stated that he had no proof at all as to the consumption in 1962, and the 1962 compilations were based upon the investigation made in 1964, and Smith’s condition in 1964.

Most of Dr. Honeycutt’s testimony dealt with the physical and mental condition of the Smiths in 1964, and, of course, there is no question but that appellees were addicted at that time. The doctor had no knowledge of the amount of drugs that had been consumed by Dr. Smith and his wife during 1962, and he had no knowledge as to Smith’s mental ability in 1962.

Dr. Honeycutt stated:

“In this particular type of barbiturate, I am sure that thirteen grains a day probably represents about all they can get in. By that I mean this: It still is a sedative and sleep producer whereas in comparison to morphine or demarol or one of the opiates that is not necessarily a sleep producer, a person could take fifteen, twenty grains of morphine intravenously and be staggering and wall-eyed for a few minutes but he could still go on. But thirteen grains a day, he is going to sleep a fair portion of the day even though he has been taking it and built up a tolerance to it.”

He added that when not sleeping, “No doubt he would be cloudy. His speech would be somewhat slurred. He would not be able to manipulate his hands and do fine chores and tasks and write and things of that sort.”

Dr. Smith testified that he had previously, in 1958, been admitted to the State Hospital at his own request, because of taking barbiturates (Nembutal and Elixir of Butisol), and stayed there for a week or two. He testified that about two months later, he started taking drugs and continued to do so until he was placed in the hospital in 1964. The doctor recalled the trust -agreement, which was executed on September 7,1962, i.e., he remembered going to the bank to establish the trust, but stated that he recalled little else about it. Dr. Smith did say that he remembered giving Amis Guthridge instructions to prepare a trust agreement. Appellee testified that his present principal complaint is that he doesn’t seem to get enough money from the trust to live on.

On September 2, 1960, he and his wife obtained a divorce, at which time she received the Crown Western investment shares which were subsequently placed in the trust by Mrs. Smith. (Dr. and Mrs. Smith remarried on October 6, 1960.)

Mrs. Smith testified that she started taking drugs in 1961, and that she did not recall signing over the securities to Dr. Smith, which she had obtained in the divorce settlement of September, 1960. She stated that she and Dr. Smith had both made a will, and that the manner in which the property was bequeathed was different from the provisions in the trust. She said that the trust beneficiaries are not the people that appellees desire to receive the money; also, that she did not know the exact balance in the bank account, but she had withdrawn $10,000.00 in August, and opened a new account under her name.

Let us proceed to evaluate the evidence. As previously mentioned, while there is testimony by appellees’ witnesses that the Smiths acted abnormally at times in 1962—there is also testimony by most of these same witnesses that they acted normally at times in 1962. However, there is positively no evidence that- Dr. Smith was incompetent or irrational on September 7, 1962, the date of the execution of the instrument.'In fact, the only persons who testified relative to Smith’s- appearance and manner on that date were appellant’s witnesses, and they testified, without equivocation, that the doctor appeared entirely normal. The evidence of Mr. Warren, as noted, was based on the amount of sales to Dr. Smith, which commenced in May, 1962, and upon the doctor’s physical condition in 1964. Further, based on compilations, it was concluded that Dr. Smith took 13.85 grains per day in 1962. Admittedly however, this amount was partly reached by assuming that Dr. Smith and his wife had consumed all that had been purchased. This assumption was based upon the fact that no record of his dispensing the drugs to other people could be found. This is, of course, somewhat speculative, for Dr. Smith could have dispensed drugs without making any record. For that matter, he could have decided on particular occasions that he would not take any more, and have thrown away what he had on hand; then changed his mind within a few days, and purchased additional gallons. This, too, is speculative, but the point is that the drug could have been disposed of by means other than Dr. Smith’s taking it. Not only that, but admittedly both the doctor and his wife were taking the drug*, and she was in as bad, if not worse, physical and mental condition than her husband in 1964, when they were taken to the hospital. Of course, no one is able to say how much was consumed by Dr. Smith, and how much by Mrs. Smith. Dr. Honeycutt stated that 13 grains would be about all that an individual could take in a day (the estimate showed that Dr. Smith had taken 13.85 grains per day), and that one taking that much would sleep a good portion of the time, even though he had built up a tolerance; that his speech would be slurred, and he would be unable to manipulate his hands, or write. Yet, the testimony does not reflect that Dr. Smith was so affected on September 7, 1962, or during the preceding days when he was consulting with his attorney about setting up the trust. To the contrary, the only thing Mr. Guthridge noticed, that was in any way out of the ordinary, was that Dr. Smith “seemed in a state of urgency, very anxious and pushing me to complete it. * * * He was at a fever pitch, and driving.”

Though it would appear under the evidence that Dr. Smith’s condition worsened in 1963, still the evidence reflects that he made a will—apparently, from the testimony, a will that entirely expressed his wishes and desires as of that date. Of course, he appeared entirely cognizant of the terms of the trust, even in 1963, and was seeking advice relative to setting it aside.

Perhaps the most pertinent and significant evidence in the entire case consists of a written memorandum, prepared by Dr. Smith, which he turned over to Attorney Guthridge at the time of their consultation with regard to preparation of the trust agreement. This, with the exception of two or three notes placed on it by Guthridge, is entirely in the handwriting of Dr. Smith, and sets ont in detail his properties, including notes, mortgages, names of debtors, amount of original debt, amount of current debt, dates of payments, legal description of real property, the Crown Western investment shares (even noting some purchased as late as June, 1961), and his account number at the bank. The trust beneficiaries are also set out in detail. Dr. Smith had not dated the memorandum, and G-uthridge dated it himself. Counsel for appellees argue that the date when Dr. Smith prepared the memorandum is not shown, and “there is absolutely no evidence to negate the possibility that the doctor was helped or influenced in the preparation of these notes.” But, of course, the burden was on appellees to establish any undue influence, or that the notes were prepared, or dictated, by someone else. There is not one scintilla of evidence in the entire record that any beneficiary had anything to do with the preparation of this memorandum, or influenced Dr. Smith in any way to establish a trust, or for that matter, no evidence that any beneficiary even knew that he was contemplating the execution of such an instrument.

Summarizing, in order to set aside the trust agreement, it was necessary that appellees establish Dr. Smith’s incompetency on September 7, 1962. As set out in this opinion, we do not feel that that burden has been met. To the contrary, we think the proof reflects that Dr. Smith was competent to execute the trust agreement.

Reversed.

      This point was not urged at the trial below, and is not relied upon here.

      From the testimony: “I can’t give you the time except to me it would have to be a brief period of time due to the fact that I definitely remember he said that ever since it has been made that his wife had cried day and night and that would not have been a period over three or four or six or eight months. To my mind it was a short period of time but as to how long, I don’t know.”

      There were two promissory notes in the approximate amount of $24,000.00 and 8,088.01 shares of Crown Western Investment, part of which were registered in the name of Dr. Smith, and part in the name of Mrs. Smith. Bowen inquired why Mrs. Smith did not join as one of the grantors of the trust, since she was actually putting some property into it, hut the Smiths explained that they desired to handle the matter in this manner. The value of the stock at that time was something over $55,000.00. The income only was to be deposited to the bank account of the Smiths, but Item Five authorizes and directs the trustee to pay to the first party (and successive beneficiaries) from the principal, if necessary, for increased living costs. “Living costs would be determined by the trustee, by comparing living costs as of the date of the execution of this trust agreement with living costs at any future date.”

      This was Mrs. Brown, the daughter who is the beneficiary in the trust agreement.

      Warren stated that Smith had the worst addiction in the history of the state.


author: Ed. F. MoFaddin, Justice.

text:
    Altman v. Altman
    5-3788
    399 S. W. 2d 501
    Opinion delivered February 28, 1966

      Bryan & Fitshugh, for appellant.

      A. G. Windhmn and Shaw, Jones & Shaw, for appellee.
   Ed. F. MoFaddin, Justice.

Appellant, Mrs. Altman, filed this present suit seeking’ some alleged rights under a 1961 contract signed by Mr. Altman, appellee. He demurred; the Trial Court sustained the demurrer and dismissed Mrs. Altman’s complaint; and she prosecutes this appeal. The sole question is whether the complaint stated a cause of action.

The dates of the marriage and the separation of the parties are not alleged, but the Altmans must have married some time prior to 1943 because in 1961 the oldest child was 18; the next child, 15; and the youngest child, 11 years of age. Mr. and Mrs. Altman were domiciled in Oklahoma in 1961 and on January 31, 1961 they entered into a “Separation Agreement and Contract for Property Settlement” (hereinafter called “1961 agreement”). It was a 12-page typewritten instrument and appears to have been most carefully prepared. It provided, inter alia, for: (a) a division of the personal property; (b) the transfer of certain described real estate to the wife and other described real estate to the husband; (c) a provision for support of the wife and children (which is Paragraph 8 of the instrument and will be subsequently mentioned); (d) procedure in event of intention to sell any of such real estate; and (e) duration for the payments of support.

The parties were divorced by decree of the District Court of Leflore County, Oklahoma, on October 5, 1961, and in that decree the said 1961 agreement was approved and confirmed. Section 8 of the 1961 agreement is essential to an understanding of this litigation; and said section reads in full:

“8. SUPPORT: It is one purpose of this Agreement to provide a measure of support for the wife and three children of the parties, namely, Michael Scott Altman, Gail McCann Altman, and Sally Jean Altman. In this connection the parties acknowledge that there is certain income by way of rents and payments on account of rental on lands for oil and gas leases covering the mineral rights which lands and mineral rights are to be conveyed to the wife as hereinabove set out. It is also acknowledged that there may be additional income hereafter from the lands on account of pasture rentals and on account of the sale of rock and gravel and other minerals from the Wife’s lands. In fixing the support to be paid by Husband it is understood and agreed that the income from these sources shall be taken into consideration and that the Husband shall be required only to supplement this income so that during the pendency of the period of support as herein fixed the Wife shall receive for herself and for support of the three children of the parties a total amount, including the revenues above set out and supplemental contributions from the Husband, the income as follows:
“ (a) The sum of $5,000.00' to be paid annually to Wife, Provided, that when Michael Scott Altman enters college or attains eighteen (18) years of age, there shall be deducted from any contribution required to be made by Husband the suin of $600.00 per year. Provided, further that when Gail McCann Altman enters college or attains the age of eighteen (18) years, or marries, whichever event shall be the sooner, then the annual payment shall decrease by an additional $600.00 per annum.
“(b) Payment of doctor, hospital and medical expenses for the wife; and the three children, including premiums for hospital and medical, insurance.
“(c) All local, state and federal taxes on all of the real estate of both of the parties hereto, both Husband and Wife.
“(d) Insurance premiums for insurance covering buildings and improvements on all buildings and improvements including the home in reasonable amounts.
“(e) Reasonable maintenance and repairs expenses to all improvements including the home.
“It is made plain that Husband shall be responsible, during the term provided herein, for support to supplement the rents and other income from the property conveyed to Wife so that each year during the term of said support the Wife shall receive the above amounts. It is understood that upon the execution hereof that the Wife will necessarily require advancements of support, so that the parties agree that immediately upon execution hereof the Husband shall commence monthly payments to the Wife on the basis of $5,000.00 per annum and shall make such other payments by way of advancements as to fulfill the other requirements for support as hereinabove set out. As the income shall be received from the lands and minerals interests belonging to the Wife, they shall be credited against the first payments thereafter due on the support above provided for; that is to say, that the Husband shall not be required to make any additional advances until the total income from the Wife’s property has been expended in maintaining said support payments. Thereafter the Husband shall assume the payments again and continue them until such other time as he shall be temporarily relieved thereof on account of the. collection of rental and other income from the Wife’s property. ’ ’

Mrs. Altman filed the present suit in the Sebastian Chancery Court on May 21, 1965, in which she alleged that some of the contractual provisions of - the 1961 agreement had been violated by Mr. Altman and that she was entitled to judgment against him for an amount in excess of $10,000.00. As aforesaid, Mr. Altman filed a demurrer to the complaint, insisting that Mrs. Altman’s complaint did not state a cause of action. The Trial Court sustained the demurrer; Mrs. Altman refused to plead further; the complaint was dismissed; and the case is here on her appeal.

In her complaint Mrs. Altman alleged that Mr. Altman received certain oil payments and rentals from her lands in May, July, and December of 1961, and in January of 1962, and that he had failed to account to her for the said payments. In his demurrer Mr. Altman urged—and the Lower Court held—that these payments were all barred by the 3-year statute of limitations (Ark. Stat. Ann. § 37-206 [Repl. 1962]), since Mrs. Altman owned the land and Mr. Altman, in collecting the payments, in effect committed a conversion. In holding the 3-year statute of limitations to he applicable, the Chancery Court relied on the case of Scroggin v. Howell, 216 Ark. 569, 226 S. W. 2d 562, as well as the cases therein cited. We hold that the Trial Court was in error in applying the 3-year statute of limitations. Section 8 of the 1961 agreement, as previously copied, contemplated that Mr. Altman would supplement the rents “and other income from the property,” so when he collected the alleged rents and payments he did so under Section 8 of the contract. In short, when Mr. Altman made the collections he was bound to account, under the 1961 agreement; so certainly Mrs. Altman’s cause of action was based on the 1961 contract. We have held that a suit on a written support contract, made in contemplation of divorce, is a suit on a written instrument and is governed by the 5-year statute of limitations (Ark. Stat. Ann. § 37-209 [Repl. 1962]). See Wilson v. Wilson, 231 Ark. 416, 329 S. W. 2d 557; and see also Brun v. Rembert, 227 Ark. 241, 297 S. W. 2d 940.

We limit our holding herein to the one point that the 5-year statute of limitations applies; but for fear that some of the litigants might think that we are holding that a cause of action is stated on other matters in the complaint, we point out:

(A) In her complaint Mrs. Altman alleged that Mr. Altman had filed to make all of the payments provided in Paragraphs (b), (c), (d), and (e) of Section 8 of the contract, which paragraphs refer to doctors and hospital bills, taxes, insurance premiums, and maintenance and repairs to the home; and she sought recovery for these items. She attached as an exhibit to her complaint her income tax returns for the years 1961 to 1964, inclusive; and these showed her income from several sources other than the property covered by the 1961 agreement. Because these returns showed income from all sources each year in excess of $5,000.00, the Trial Court held that Mrs. Altman’s complaint failed to state a cause of action. The question is whether the $5,000.00 figure in Paragraph (a) of Section 8 of the contract is a limitation on the requirements of Paragraphs (b) to (e), inclusive of Section 8 of the contract. We express no opinion on this question.

(B) Furthermore, the record before us does not show when the Altmans finally separated before the divorce decree of October 5, 1961. If payments that Mr. Altman is alleged to have received were so received during the time the parties were living together, then the 1961 instrument would not apply to such payments. This is true, because the supplemental instrument, previously copied in footnote (1), specifically states that the 1961 agreement will come into effect only after the separation. As to payments received while the parties were living together and before the divorce decree was granted, Oklahoma Statutes, Title 12, § 1279 might apply.

(C) What we have just said may also apply to the joint bank account mentioned in Mrs. Altman’s complaint. We cannot tell when the parties separated.

In the present opinion we are only holding that Mrs. Altman’s cause of action was based on a written instrument, and is governed by the 5-year statute. We express no opinion on any of the other questions.

For the error of the Court in sustaining the demurrer, the decree is reversed and the cause remanded.

      At the time of its signing it was intended that the instrument would be followed by a divorce; but on February 12, 1961 (less than two weeks after the instrument), the parties resumed marital relations; and on February 12, 1961 Mr. and Mrs. Altman signed a “Supplemental Agreement,” the germane portion of which reads:
      “1. That notwithstanding the resumption of marital relations between the parties as Husband and Wife, that in the event of a subsequent separation between the parties, that the separation agreement and contract for property settlement executed between the parties on the 31 day of January, 1961, shall upon subsequent separation, be and remain in full force and effect and shall constitute the rights and liabilities between the parties, each party agreeing that the rights and liabilities shall be limited and defined by the terms of said separation agreement and contract for property settlement the same as if the marital relationship had not been resumed.
      “IN TESTIMONY WHEREOF the parties hereto have hereunto set their hands and seals on this 12th day of February, 1961.”

      That section reads: “A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of either party in or to the property of the other. ...”


author: George Eose Smith, Justice. Paul Ward, Justice,

text:
    Taylor v. Taylor
    5-3785
    399 S. W. 2d 498
    Opinion delivered February 28, 1966

      W. B. Howard and Jack Segars, for appellant.

      Rhine & Rhine, for appellee.
   George Eose Smith, Justice.

This proceeding began as a suit filed by the appellee, the husband, for a divorce on the ground of personal indignities. He elected to take a voluntary nonsuit when his wife, the appellant, denied his right to a divorce and filed a counterclaim asking for separate maintenance. After a hearing upon the counterclaim the chancellor refused to award separate maintenance, finding that the parties had executed a property settlement agreement in which the wife relinquished any claim she might have for alimony or support. Whether the chancellor properly construed the written agreement is the principal question on appeal.

The Taylors were married in 1922 (or perhaps 1919) and had lived together for more than forty years when they separated in May of 1963. Taylor was then a building contractor, engaged in business with one of his sons. Mrs. Taylor was sixty-one years old and is not shown to have had any training enabling her to earn a living.

Following the separation each of the parties employed an attorney and, with the assistance of counsel, negotiated a detailed property settlement agreement. The contract comprises four typewritten pages. After the usual declaration of the couple’s intention to live apart from each other the contract describes in detail the several items of real and personal property that the parties owned and sets out the division that was agreed upon. There is no specific reference to alimony or support, but the contract does close with this language, which is relied upon by the husband:

“It is mutually agreed between the parties hereto that this agreement shall constitute an absolute and final property settlement and separation agreement between the parties and that in the event either party shall bring suit for divorce, this agreement and property settlement may be used and considered as a complete and final settlement of all property rights between these parties. The husband hereby waives any interest and releases completely any right, title or interest he might have in any property the wife owns at this time or that she might acquire at any time hereafter, and the wife hereby Avaives and releases to the husband any right, title and interest she might have, including any statutory rights she may have acquired or might acquire in any property owned by the husband at this time or acquired by him at any future date.
“It being the purpose of this agreement to dissolve and settle absolutely any interest or claim either of these parties might have in the property of the other and to relinquish any claim that either party may have against the other growing out of their marriage relationship and contract.”

The contract is long and detailed. Except for routine preliminary recitals almost every word is directed toward the division of the property acquired by the couple during the many years of their marriage. Despite the absence of any explicit reference to the husband’s duty of support or to the wife’s claim to alimony the appellee contends that this issue was foreclosed by the closing clause in the contract: “. . . and to relinquish any claim that either party may have against the other growing out of their marriage relationship and contract. ’ ’

We do not find this argument persuasive. Standing alone, the pivotal clause might be interpreted either to be limited to claims involving existing property rights or to be intended as a sweeping renunciation of all matters incident to the marriage, including alimony, support, conjugal rights, consortium, etc. But when the contract is considered as a whole, with a proper regard to the situation that existed between the parties, we are convinced that the intention of the contracting parties was not as broad as the appellee now insists.

Several considerations enter into our conclusion. In a contract that was prepared by lawyers and that was manifestly worded with care we should expect so obvious and important a matter as the duty of support to be specifically provided for if it was to be concluded by the agreement. The introductory clause in the final paragraph, “It being the purpose of this agreement . . . ,” implies that what follows is in the nature of a summation of what has gone before. Yet it is now suggested that the concluding summation introduced a new and vital provision that had not previously been touched upon.

Finally, when an agreement is open to two or more interpretations a familiar rule comes into play: “The offered testimony revealed the situation of the parties and the subject-matter of the contract, the circumstances, of the transaction, the inducement for making the contract, and the object the parties had in view. It is proper for the court to be in possession of these in order to determine what the parties meant by the language employed to express their agreement. Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselvs in the same situation as the parties who made the contract so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and the correct application of the language to the things described.” Wood v. Kelsey, 90 Ark. 272, 119 S. W. 258 (1909).

In the case at bar most of the couple’s property was owned jointly. Under the settlement Mrs. Taylor did not receive much more than the rights of ownership already vested in her. Taylor was a successful business man apparently able to continue to earn a substantial income. It was he who seems to have been insisting upon the separation. The specific property that the agreement set aside to Mrs. Taylor appears to have been of decidedly smaller value than her right to the support she was entitled to demand. Considering the record as a whole we are convinced that the property settlement should not be construed as a bar to Mrs. Taylor’s claim for separate maintenance. The cause will be remanded for further proceedings upon that issue. Needless to say, what Mrs. Taylor has received under the settlement will be taken into account in fixing any amount that may be allowed as separate maintenance.

It is also argued that an inadequate attorney’s fee was allowed to Mrs. Taylor’s present counsel (who did not represent her in the negotiations for the property settlement) for his work in the trial court. This contention involves matters that the chancellor observed at firsthand and about which he was in a much better position than we are to reach a correct conclusion. We are not willing to say that he abused his discretion in making this particular allowance.

Reversed.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. I am unable to agree with the majority’s interpretation of the “property settlement agreement.”

In the last paragraph appellant agreed “to relinquish” any claim she “might have against” appellee “growing out of their marriage relationship and contract.” It is beyond me to understand how any right which appellant might have against appellee for “separate maintenance” would come from if it didn’t “grow out of their marriage relationship . . . .”1 can’t imagine how language could be made any plainer than that used by the parties.

The courts, I fear, are breeding trouble when they refuse to take plain, simple words at their accepted face value.


author: Paul "Ward, Justice.

text:
    Ark. Valley Electric Cooperative Corp. v. Brinks
    5-3795
    400 S. W. 2d 278
    Opinion delivered February 28, 1966
    [Rehearing denied April 4, 1966.]

      Edgar Woolsey and Jack Yates, for appellant.

      Holman & Boyett, for appellee.
   Paul "Ward, Justice.

The issue in this litigation relates to the location of an easement for a power transmission line right-of-way across land owned by appellees.

On July 22, 1964 Hugh E. and Clemmie Brinks (appellees) signed a written instrument conveying to the Arkansas Valley Electric Cooperative Corporation (appellant) a 100 feet wide permanent easement across their land, giving appellant the usual rights to enter, survey and erect and maintain electric power transmission lines, etc. Although the instrument was not signed by appellant it does recite that appellant agrees to pay appellees (in addition to the cited consideration of $1) as follows: “$1 per rod; $10 per pole; $10 per anchor.” The description in the instrument reads:

“All that part of the SW of SW of SE Sec 28 lying west of Spadra Creek also the SE of SE and the south 25 acres of the SW of SE and the E% of EJh of SE of SW Sec 29 all in Twp 10 N Range 23 West.”

There is nothing in the instrument which describes, or even indicates, the location of the 100 feet right-of-way across the land.

Sometime later, when agents of appellant began clearing the right-of-way across the middle of his land, appellee filed a complaint in chancery court (April 19, 1965) alleging that before he and his wife signed the instrument he had an understanding with appellant that the right-of-way would “be located on the extreme northern edge . . .” of his property, running east and west. It was further alleged that the south portion of his land was “much more valuable than the area through which plaintiffs agreed said lines could be located.” The prayer was that appellant “be restrained and enjoined from further cosstructing ...” said lines. The issue was joined on appellant’s answer stating, in effect, that a definite location of right-of-way was agreed to by appellees before they signed the instrument.

After a hearing, the trial court found “that the center line of said easement is located fifty feet south from plaintiffs’ north property line . . . .”

The only point raised by appellant is that the weight of the evidence does not support the finding of the trial court. We do not agree.

In the case of Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261 (p. 271), 261 S. W. 645, there appears a statement which is applicable in this case:

“Where such right-of-way is reserved or expressly granted and not defined, the owner of the servient estate, in the first instance, has the right to delimit it, and, in the event of his failure to do so, it may be selected by the grantee of the easement; but, in either case, the location must be a reasonable one, taking into consideration the interest and convenience of both the dominant and servient estates.”

Under the rule above set out, even if there was no meeting of the minds here as to a definite location of the right-of-way, the trial court would have been justified in placing it on the north side. This is true because the undisputed evidence shows appellees’ damages would be greater if the right-of-way ran through or near the middle of their property. Their land lies on the north side of Clarksville with part of it within the city limits on College Avenue. Also, it is ready for development, being available to water, gas, electricity, and sewer. There is no showing that appellant will be seriously damaged if the line is on the north side.

However, the trial court went further and made the positive finding that it was understood the right-of-way center line was to run 50 feet south of the north line of appellees’ property. We think this finding is supported by the weight of the evidence.

Mr. Brinks testified in substance: I went over the land with Mr. Doyle (agent of appellant) prior to signing the instrument; I told him I would sign if the line was run on the north side; I told this to my wife before she signed; later a surveyor was sent out by appellant, and he indicated the line would go near the middle, but I protested; promptly I wrote appellant we would go to court unless the line was moved to the north side; Mr. Doyle showed me an aerial photo map of my land, but I looked at it and there was no line on it to show where the right-of-way was to run; later another agent of appellant came out; we walked over the land, and I pointed out the north line. Mr. Doyle told a different story. He testified: I showed the map to appellee Brinks, and it had a red line on it; the red line was pnt on the map by Olgar & Martin, engineers in Joplin, Missouri. John M. Taylor, an abstracter in Clarksville, testified he put the red mark on the map. Charley McCorley, agent of appellant, testified that he staked out the center line, and that Mr. Brinks ‘walked quite a ways’ but made no protest.

In Snyder v. Snyder, 233 Ark. 188, 343 S. W. 2d 420, we said:

‘ ‘ It would serve no useful purpose to detail the testimony ... or to discuss the circumstances ... in order to show with whom the truth may rest . . . . ” “This case affords a classic application of the well recognized statement that the Judge, seeing the witnesses, is in a better position to decide the credibility than is an appellate court, which merely sees the words on the page.”

Applying the well established rule so aptly stated above, we are not Avilling to say the finding of the trial court is against the Aveight of the evidence.

Affirmed.

Harris, C. J., and Smith, J., dissent.


author: Jim Johnson, Justice.

text:
    Lilley v. Copeland
    5-3757
    399 S. W. 2d 496
    Opinion delivered February 28, 1966

      Felver A. Rowell, Jr., for appellant.

      Gordon & Gordon; Charles H. Eddy and Clark, Clark & Clark, for appellee.
   Jim Johnson, Justice.

This is a suit for rescission of a deed and includes a third-party complaint.

Appellees W. F. and Minnie Bradford owned property which had been subdivided into building lots and then re-subdivided. This action involves Lot 23 of Bradford’s Replat. Appellants Wayne and Lillian Lilley had bought several lots in Bradford’s Replat over a period of time. The sale price in each case was $1,100 per lot including sewer facilities. Lilley, a building contractor, would build a house on the lot and obtain an FHA-guaranteed loan for the ultimate purchaser. When the FHA loan was ready to be closed, Bradford would convey the lot to Lilley, who in turn conveyed to the ultimate purchaser. Much or most of the business between Lilley and Bradford was handled through a local real estate man who acted generally as agent for both men.

Lilley wanted to buy Lots 22 and 23, bnt would not pay $1,100 each for the lots without sewer facilities. Sewers were constructed and the sewer cost was withheld from Bradford’s purchase price for the lots.

On March 23, 1960, Lilley contracted to sell Lot 23 to T. J. and Lynn Hilliard. On May 28, 1960, the Brad-fords deeded Lot 23 to Lilley and Lilley in turn deeded Lot 23 to the Hilliards on June 4, 1960. The Hilliards later swapped Lot 23 back to Lilley for another house and on August 9, 1962, Lot 23 was conveyed to Clovis and Charlene Copeland.

The Copelands filed a complaint in Conway Chancery Court on June 23, 1963, against Lilley for rescission on two grounds: one, that the house had been built over a public sewer which was a health menace and nuisance, and two, the size of Lot 23 had been misrepresented to them. They prayed, inter alia, that Lilley be required to correct the sewer nuisance by moving the sewer line or in the alternative that Lilley be required to accept their tendered deed and repay the Copelands their purchase price. T. J. Bettes Company, the mortgagee, was also sued, the Copelands praying that its threatened mortgage foreclosure be enjoined until determination of this action. Lilley answered and filed a third-party complaint against the Bradfords, alleging that they were the owners of Lot 23 at the time the sewer and the house were built and that if there was any liability to the Copelands, such liability should rest on the Bradfords rather than on Lilley.

The gist of the sewer problem is that the sewer on Lot 23 under the house is above ground, made of a material not considered suitable by the State Health Department, and the house was built right over it. A neighbor on higher property tied into the Copelands’ sewer, and shortly thereafter the Copelands were advised by the State Health Department that the sewer was a potential health hazard. Copeland moved his family as soon as the school term was over. This suit was brought some time later, apparently when foreclosure became imminent.

On the matter of the size of Lot 23, the most recently recorded plat of Lot 23 indicates that the lot. is 80 feet east and west and 149 feet north and south, with a 10-foot utility easement on the south and a 21-foot road easement on the north apparently not included within the lot. A later survey reveals that the distance between the two easements is 117.7 feet.

At trial the parties represented were appellants Lilley, appellees Copeland, third-party defendants Bradford, T. J. Bettes Company, mortgagee, and Federal National Mortgage Association, mortgage assignee. In its excellent memorandum opinion, the trial court found that: (1) Lilley was the equitable owner of Lot 23 at the time the sewer was laid, the house built and also when it was conveyed to the Copelands; (2) the Copelands were entitled to rescission; (3) .the deed should be reformed to correctly describe the lot as being subject to the easements; and (4) as part of its attempt to restore the parties to their original position, the court made detailed findings favoring various parties on matters such as rents, down payments, taxes, insurance,- etc., including providing that the Copelands will have judgment over against the Lilleys for any defieiéncy judgment resulting in the foreclosure proceedings.

From the decree comes this appeal. Appellants first contend that the finding that appellees Copeland were entitled to rescission as against appellants Lilley is contrary to the law and against the clear preponderance of the evidence.

After finding that the Lilleys were equitable owners of Lot 23 when the sewer was constructed, when the house was built and when the property was conveyed to the Copelands, the court went on to find:

“2) Plaintiffs Copeland are entitled to rescission. Authority for this position against the equitable owner may be found in cases collected in 91 C. J. S., Vendor and Purchaser, § 155.
“Either the defective and dangerous sewer installation or the breach of warranty by reason of the 21 foot easement and the 10 foot easement across the property is sufficient to entitle plaintiffs to a rescission. With regard to the adequacy of the sewer service, this case resembles Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256. In this case there appears to be no direct proof of misrepresentation as to the sewer or the fact that the sewer line runs across adjoining property for which there is no easement. Certainly an adequate sewer service is a material factor in the occupancy of city property as was an adequate water supply in the operation of a motel or tourist court in the above case.
“Being evicted from 31 feet of a lot 149 feet deep is a substantial eviction which occurred as of date of delivery of Copeland’s deed. Mr. Bradford had dedicated the easement to the City of Morrilton as shown by the plat, and title was in the sovereign at the time of delivery of the deed to the Copelands. See Wood v. Setliff, 229 Ark. 1007, 320 S. W. 2d 655. Purchasers are entitled to rescind for breach of the covenant of warranty. See Burns v. Meadors, 225 Ark. 1009, 287 S. W. 2d 893; Jones, Arkansas Titles, § 94.”

Review of the authorities and the record before us impels us to the conclusion that the chancellor’s findings on this point are in accord with the law and the evidence.

Appellants’ second point urged for reversal is that assuming the Copelands were entitled to relief, the trial court erred in finding that appellants Lilley were not entitled to relief against the third-party defendants Bradford.

The trial court based its conclusion here on two fact questions. First, the court found that appellants were the equitable owners of Lot 23 when the sewer line was installed and when the house was built (and also the equitable owners when the house was later sold to the Copelands). We think this is reasonable. This was a credit device. Customarily Bradford deeded lots to Lilley when Lilley was ready to pay for them, which was when Lilley had arranged sale of each lot and the house Lilley had constructed on the lot. The second question was, who was responsible for construction of the sewer? It is undisputed that Bradford paid for the sewer construction, in that the cost was withheld from the purchase price of Lot 23. Other than that, the testimony is in direct conflict—Lilley testified that Bradford was responsible for the construction of the sewer, and Bradford that Lilley was. The plumbing contractor who installed the sewer line, however, testified that he was employed by Lilley and that Bradford had never contacted him on the matter. The state of the record being this, we cannot say that the chancellor’s findings are against the preponderance of the evidence.

Affirmed.


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    Ark. State Highway Comm. v. Brewer
    5-3781
    400 S. W. 2d 276
    Opinion delivered February 28, 1966
    [Rehearing denied April 4, 1966.]

      Mark E. Woolsey and Don Langston, for appellant.

      Robinson & Rogers, for appellee.
   Frank Holt, Justice.

In this eminent domain proceeding the appellant took 45.37 acres of a 119-acre tract of appellees ’ land for interstate highway construction purposes. The appellees presented evidence that they suffered damages between the amounts of $60,-000.00 and $90,000.00. According to appellant’s evidence, $40,000.00 was just compensation to the appellees. The jury assessed the damages at $70,000.00 and from a judgment accordingly comes this appeal.

For reversal appellant first contends that: “The trial court erred in permitting testimony as to the agricultural production of the land which had a highest and best use for industrial purposes.” Appellees presented evidence that tbeir land was being used for agricultural purposes and, further, that it had an industrial potential by reason of it being adjacent to the Missouri Pacific Railroad tracks, its proximity to the Arkansas River, and being located partially within the Van Burén city limits with all utilities and transportation facilities available. The property was zoned for industrial purposes by the Van Burén Planning Board. According to appellees’ evidence the value of the remaining property was greatly reduced for agricultural purposes by reason of being cut into small distorted tracts. This adversely affected the irrigation of the lands and the harvesting* and the removal of his crops. The appellees also presented evidence that the construction of this interstate facility diminished the accessibility to their remaining lands to such an extent that the industrial potential was virtually destroyed.

The trial court properly admitted the landowners’ proof as to both the agricultural use and the industrial potential of their land. The proof should not be limited to either. Our rule is succinctly stated in the case of Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S. W. 440. There we said:

“The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market.” [Emphasis ours]

See, also, Arkansas State Highway Comm. v. O and B, Inc., 227 Ark. 739, 301 S. W. 2d 5. In the case at bar the appellees had the right to show all the purposes to which their land is adapted in order for the jury to determine just compensation.

Appellant’s next two points can be discussed together since they relate to the trial court’s alleged error in permitting certain witnesses to testify. Appellant argues that these witnesses are not competent to express their opinion as to the value of the lands for industrial purposes although they might be qualified as value witnesses for agricultural purposes. One of these witnesses has lived in Crawford County for forty years and for the past thirteen years has been general manager of the local Co-op which had owned the land in question and sold it to the appellees about 1960. He testified that he and his associates had sold land within one-fourth mile of appellees’ property and that he personally owned some industrial land in this area. According to him he was familiar with the market value of the lands generally in the area and the value of appellees’ land before and after the acquisition by appellant. Another witness, a local county agricultural agent for nearly eighteen years, testified that he had knowledge of the productivity and fair market value of the land in this area, including appellees’, and that he was familiar with the industrial potential of appellees’ land. His knowledge of the industrial potential was acquired from pricing and trying to buy industrial land in this area. Also, he had acquainted himself with actual sales in the area. The court properly permitted these witnesses to testify as to the market value of appellees’ property from the standpoint of both the agricultural and the industrial aspects.

In Malvern and Ouachita River Railroad Co. v. Smith, 181 Ark. 626, 26 S. W. 2d 1107, we said:

“We think no error was committed in permitting the witnesses to express their opinion, where it was shown that they had some knowledge of the facts about which they testified. * # * and whether a witness has such knowledge of the facts as to make his opinion of any value is a question largely within the discretion of the trial judge, and the value of such testimony may be tested by a cross-examination of the witness as to the facts upon which the opinion is based.”

See, also, Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684; Ball v. Independence County, 214 Ark. 694, 217 S. W. 2d 913, and Housing Authority of City of Little Rock v. Winston, 226 Ark. 1037, 295 S. W. 2d 621.

In the case at bar the witnesses demonstrated they had knowledge of the facts about which they testified. The extent of their knowledge was ably and thoroughly sifted upon cross-examination by appellant. Certainly there was no abuse of discretion by the trial court in admitting their testimony. It was within the province of the jury to determine the weight to be given their opinion as to appellees’ just compensation.

Affirmed.


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    Cochran, Mayor v. Black
    5-3802
    400 S. W. 2d 280
    Opinion delivered February 28, 1966
    [Rehearing denied April 4, 1966.]

      Smith, Williams, Friday & Botven, By: John T. Williams and Frank Warden, Jr., for appellant.

      Frierson, Walker & Snellgrove, By: G. D. Walker, for appellee.
   Osro Cobb, Justice.

The G-eneral Assembly of 1937 passed .Act 298, which authorized the creation of local housing authorities by counties and by cities of the first class. Act 69 of 1961 amended the statute to make it applicable to the cities of the second class. These statutory provisions now appear as Ark. Stat. Ann. §§ 19-3001—19-3034 (Repl. 1956 and Supp. 1965).

On February 12, 1963, the City Council of Corning, a city of the second class, purportedly passed two Resolutions for the purpose of approving a Housing Authority; declaring the need of same; creating and activating said Housing Authority; and authorizing the designation of commissioners to operate same.

On August 3, 1964, citizens of Corning opposed to the local Housing Authority and desiring to terminate same filed with the City Clerk petitions to initiate an ordinance to be known as Initiative Ordinance No. 1, which expressly provided for the repeal of said Resolutions of February 12, 1963. Some 15 per cent of the qualified electors in the municipality joined in the petitions and the matter was placed on the ballot for the general election of 1964.

On August 15, 1964, appellees filed their complaint against appellants in the Chancery Court, challenging-the validity of the Resolutions of February 12, 1963, and seeldng an order temporarily enjoining and restraining the Mayor of the City of Corning and others from any activities of assistance or cooperation with the Housing Authority. The court continued hearing on the merits of the complaint until February 23, 1965, a date subsequent to the general election held on November 3, 1964.

At the general election, the Initiative Ordinance No. 1, to repeal the Resolutions of February 12,1963 and for other related purposes, was adopted by a vote of 519 to 347, and it has been stipulated between the parties that all technical requirements in connection with the conduct of the election were satisfied.

On June 30, 1965, the Chancellor entered a decree' setting forth that both Resolutions of February 12, 1963,. were repealed by Initiative Ordinance No. 1 and that the Housing Authority of the City of Corning ceased to exist as a legal entity from and after November 3, 1964. The decree set forth that remaining issues as to the alleged invalidity of the Resolutions creating the Housing Authority were moot, requiring no finding thereon.

Appellants are now before us urging that the Chancellor erred in entering the decree of June 30, 1965, and they contend that the Housing Authority was not and could not have been legally dissolved or terminated by Initiative Ordinance No. 1 adopted by vote of the people..

Our initiative and referendum amendment to our Constitution, Amendment No. 7, reserves to the people full power to refer measures enacted to a vote of the people, and likewise full power to propose legislative measures for enactment by vote of the people. Furthermore, the amendment specifically extends said powers to municipalities and counties. The word “measure” as it relates to the legislative process is defined in Amendmest No. 7 as follows:

“The word ‘measure’ as used herein includes any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.”

In Scroggins v. Kerr, 217 Ark. 137, 228 S. W. 2d 995, it was contended that the legislative function as to the creation of local housing authorities was entirely embraced within Act 298 of 1937 of our General Assembly, and that supplementary resolutions or ordinances of the municipalities were administrative in character instead of legislative, and thus beyond the provisions of constitutional Amendment No, 7. However, this court, in a unanimous opinion, held that the ordinance authorizing the cooperation agreement with the Housing Authority was legislative in character and could properly be reached by referendum procedures. Use of the initiative portion of Amendment No. 7 was not •directly involved in Scroggins v. Kerr, supra.

The real question before this court, therefore, is whether Initiative Ordinance No. 1 is legislative in character. If so, there can be no question as to the propriety of the use of the initiative in submitting the ordinance to a vote of the people.

Ark. Stat. Ann. § 19-3031 (Repl. 1956) provides that municipalities creating and activating housing authorities shall- accept the obligation of making an estimate of the amount of money necessary for the administrative expenses and overhead of such authority -during its first year of operation, and shall appropriate such amount to the authority out of any moneys in the treasury of such city not appropriated to some other purposes, said moneys being paid to the authority as a donation; and that the municipality may thereafter, from time to time, lend or donate additional money appropriated from the city treasury. One of the apparent purposes, therefore, of Initiative Ordinance No. 1 was to erase the possibility of city funds being appropriated and provided to the Housing Authority either as loans or as donations. The appropriation of public money is specifically set forth as one of the acts to which the power is reserved to the people to approve or reject at the polls under § 1 of constitutional Amendment No. 7.

The power to create a corporation, either public or private, is a "legislative function.” Board of Directors of Northern Wasco County Peoples’ Utility Dist. v. Kelly, 137 P. 2d 295, 171 Or. 691. Dissolution of corporation is likewise primarily a "legislative function.” Hurley v. Boston R. Holding Co., 54 N. E. 2d 183.

The first language appearing in Ark. Stat. Ann. § 19-3004 (Repl. 1956) reads as follows: "In each city (as herein defined) and in each county of the State there is hereby created a public body corporate and politic to be known as the ‘Housing Authority’ of the city or county; ... ” It would appear, therefore, that the Kelly and Hurley cases, supra, are directly in point as to the proposal of the ordinance is question to dissolve the Housing Authority as activated by the municipality.

Furthermore, the essentials of the "legislative function” are the determination of legislative policy and its formulation and promulgation as a defined and binding rule of conduct. Yakus v. United States, 321 U. S. 414, 88 L. Ed. 834. Also see Kiyoshi Hirabayashi v. United States, 320 U. S. 81, 87 L. Ed. 1774.

We are firmly committed to a liberal construction of constitutional Amendment No. 7, bearing in mind the purpose of its adoption and the object it sought to accomplish. This amendment provides a necessary and potent protection against ill-advised, oppressive or improvident legislative functions, and actions of the electors thereunder, in attempting to obtain relief, should not be thwarted by strict or technical construction. We are neither authorized nor remotely inclined to disturb the proper application of this wholesome constitutional reservation of power to the people. See Leigh & Thomas v. Hall, Secretary of State, 232 Ark. 558, 339 S. W. 2d 104; Reeves v. Smith, 190 Ark. 213, 78 S. W. 2d 72; Ferrell v. Keel, 105 Ark. 380, 151 S. W. 269.

We have concluded that Initiative Ordinance No. 1 is legislative in character in that it sets forth definite legislative proposals, to-wit: the repeal of all actions taken by the city in activating the local Housing Authority ; the establishment of a policy contrary to a local Housing Authority, and the complete termination and effective dissolution of the existing local Housing Authority and its Board of Commissioners. It must follow, therefore, that said ordinance was fully authorized under Amendment No. 7 to the Constitution.

The decree of the Chancery Court sustaining the validity of Initiative Ordinance No. 1 is affirmed.