text:
    Mary Edna HUBBARD v. Cecil HUBBARD
    5-5653
    472 S.W. 2d 937
    Opinion delivered November 22, 1971

      Frank W. Booth, for appellant.

      Shaw if Ledbetter, for appellee.
   Conley Byrd, Justice.

Appellant Mary Edna Hubbard, a tenant by the entirety of a 17.5 acre tract, brought this quiet title action against the other tenant, appellee Cecil Hubbard, contending that she had acquired his interest by adverse possession. The trial court found for appellee and she appeals.

The parties were married in 1929, and lived together until sometime in 1952. In 1945 they acquired the property here in question. No division of the property was made in the 1954 divorce obtained by appellee.

Appellant testified that in 1954, after the divorce, she visited appellee in his hotel and told him something had to be done about the property. At that time there was an outstanding mortgage of $335 and the property had been sold to the State for nonpayment of the taxes. She says that appellee refused to do anything about the property and told her that he was through with her and everything out there. Following that conversation she redeemed the property from the tax sale, paid the mortgage and had the property assessed in her name. Since that time she has paid the taxes each year. From time to time she has improved the property by installing city water, a new gas pipe, hot water heater, bath tub, etc., at a cost of $1081. Admittedly she was living on the property with their son, daughter and grandchild at the time of the divorce. She lived there until she married a man named Smith in 1957 and moved to St. Louis. She moved back to the place in February 1961. From the divorce until the present time some one or all of the parties’ children have lived on the property. She refused to join with appellee in the execution of an oil and gas lease. On cross examination she described the property as the family’s home place.

Appellee testified that at the time of the divorce they had children living at home, the youngest being 16. He also considered it the family home place. After the divorce he couldn’t live with appellant and had to get out and find himself a place to live. During the time appellant lived in Missouri with her Smith husband, the children were living on the place and appellee made arrangements with them to pay the taxes. Other than one trip there to attend a son’s funeral, admittedly appellee has had no physical connection with the property. He did execute an oil and gas lease. Appellee testified the mortgage was $82.00 at the time of the divorce. He paid $42.00 and appellant paid the other $40.00.

Since this property was purchased, as an estate by the entirety, before passage of Act 340 of 1947 (which for the first time gave courts of equity the power to dissolve estates by the entirety upon rendition of a divorce), the court in the 1954 divorce could not have dissolved the estate by the entirety and created a tenancy in common, even if either party had sought a division of property in that proceeding. Prior to Act 340 of 1947, both divorced parties continued as tenants by the entirety, with the right of the whole of the estate in the survivor. Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124 (1951). The record here shows that at the time of the divorce appellant was living in the home with one of the parties’ minor children. Under these circumstances the courts would ordinarily have awarded possession of the property to the wife, had the issue been presented. Thus appellee did what the courts would have required him to do by getting out and finding. himself a place to live. This of course accounts for the court’s suggestion that appellee was in effect driven from the property.

Of course the redemption deed from the State added nothing to appellant’s title. See Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579 (1943), and Hollaway v. Berenzen, 208 Ark. 849, 188 S. W. 2d 298 (1945).

On the issue of abandonment appellant testified that ajbpellee said he was through with the property. On the other hand the appellee testified to looking after the property through the children from 1957 to ’61. Since title to property is not ordinarily lost by abandonment, Baxter v. Young, 229 Ark. 1035, 320 S. W. 2d 640 (1959), in the absence of estoppel and limitations, the trial court properly found this issue in favor of appellee.

On the adverse possession issue, appellant relies strongly upon Ueltzen v. Roe, 242 Ark. 17, 411 S. W. 2d 894 (1967). In the Roe case the parties were only tenants in common. A partition of the property could have been obtained at any time. Here, however, there was involved a tenancy by the entirety that could not be dissolved by court action. See Jenkins v. Jenkins, supra, and Ark. Stat. Ann. Sec. 34-1801 (Supp. 1969). Furthermore, the testimony shows that appellant, in her possession of the property, possessed it at all times as the family home place together with some or all of the parties’ children. Under the laws applicable to estates by the entirety, appellant had a right to use and enjoy the property. The evidence as to her use and possession does not show that she did anything that would have been notice to appellee that the property was being used for anything other than the family home place. Under the law in this State the possession of some of the joint tenants is presumed to be the possession of all joint tenants and continues to be such until there is some act of ouster sufficient in itself to give notice that those in possession are openly and notoriously claiming in hostility to and not in conformity with the rights of others having interests, in the property, Elrod v. Elrod, 192 Ark. 458, 92 S. W. 2d 211 (1936). On this issue appellant’s proof is deficient. It follows that the trial court properly dismissed the complaint.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    WOODRUFF ELECTRIC COOPERATIVE CORPORATION v. T. J. DANIEL
    5-5628
    472 S.W. 2d 919
    Opinion delivered November 22, 1971

      Wright, Lindsey if Jennings, for appellant.

      Daggett ir Daggett, for appellee.
   Frank Holt, Justice.

The appellee brought this action against the appellant to recover damages for injuries he sustained as a result of his contact with appellant’s power line. Upon interrogatories the jury found the appellee 25% negligent and the appellant 75% negligent and assessed compensatory damages at $100,000 and punitive damages at $10,000. Based upon this finding of comparative negligence, the court reduced appellee’s compensatory damages to $75,000 and approved the $10,000 punitive damages. From that judgment comes this appeal.

In a multiple point appellant first contends for reversal that there was no substantial evidence to support the jury’s finding that appellant was guilty of negligence that was a proximate cause of appellee’s injuries and, therefore, appellant was entitled to a verdict and judgment as a matter of law. Also, appellant contends that appellee’s negligence was equal to or greáter than appellant’s and, further, that he was a trespasser. We cannot agree with these contentions.

The appellee, 37 years of age, is a farm laborer with a third-grade education. His training and experience consists only of general farm work. On the day of the accident he was driving a tractor and planting a field with beans. Appellant’s power lines sagged so close to the ground that it impeded appellee’s work since he could not drive underneath them. The appellee stopped his tractor alongside the two lines, climbed up on top of the tractor’s chemical tanks and cut the first wire. Appellee was in a kneeling position and this wire was about in front of his chest. After cutting this wire the appellee dismounted and wrapped the cut wire around a nearby post at the road. Appellee then moved his tractor 25 or 30 feet and proceeded to attempt to cut the remaining wire while he was kneeling on the tractor’s chemical tanks. This uninsulated 7,620 volt wire rendered appellee unconscious and caused bodily injuries. It was necessary to amputate a part of his left arm.

By virtue of a utility easement (the terms of which are not in evidence) the appellant had maintained the power lines for about 20 years. The lines stretched across this field for a distance of about 500 feet from the road to a tenant house. The lines were supported by three poles; namely, one at the road, one in the middle of the field, and one at the tenant house. The lines had been disconnected at the house for approximately two years preceding the incident. The tenant house had not been occupied during that time. About 8 months before the accident appellee’s long-time employer had asked the appellant to remove the lines. About 6 months before the accident, following a heavy freeze, the appellant removed the middle pole from the field. As a result, the lines, about two feet apart, sagged to below the 15-foot height required by the National Electrical Safety Code. About three days before the accident, appellee’s employer renewed his request to appellant that the unused lines be removed. There was evidence that the lines sagged as low as 8 to 10 feet above the ground. In hot weather (the accident occurred in June) the lines would sag more than in cold weather. Evidence was adduced that appellee’s employer had warned all of his employees, including appellee, not to bother the electric lines running across the field and that coworkers also warned appellee on the day of the accident not to cut the wires. Appellee denied that he was warned by anyone that the power lines were energized and, further, that at the - time he cut one line and tried to cut the other one his tractor motor was running and he would have been unable to hear any warning from his coworkers in his vicinity. According to him, he did not know the line was energized and there were no signs posted that it was a dangerous line. Appellee knew that the house had been vacant for two years and it was his belief that the energized line was dead. Appellee’s employer, as well as a coworker, testified they believed that. since the house had been vacant for two years and the middle or field pole had been removed, that the line was disconnected and abandoned and, therefore, dead. It appears undisputed that one of the two lines was not energized.

There was testimony by a witness who was familiar with the National Electrical Safety Code (in effect in our state by Public Service Commission regulation) that any height below 15 feet is a violation of the code; that a span of wire in excess of 550 feet, which existed after removal of the middle pole, was a violation of safety regulations; and that the failure to maintain the line so as to reduce hazard to life in as far as practicable was also a violation. The appellee also adduced evidence that the appellant had left electricity “in the wires because lots of people were stealing wire up around Forrest City, and that they left a lot of electricity in there to keep them from stealing it.” On the day of the accident appellant’s employees appeared at the scene and disconnected the energized line at the roadside pole within two or three minutes and removed the wire from the premises.

Upon a motion for a directed verdict it is well settled that the evidence and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the plaintiff and given its highest probative value and then, if there is any substantial evidence tending to establish the issue it must be presented to the jury. Hardeman v. Hass, 246 Ark. 559, 439 S. W. 2d 281 (1969); Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4 (1948); Wortz v. Fort Smith Biscuit Co., 105 Ark. 526, 151 S. W. 691 (1912). Furthermore, the issue of negligence is a question for the jury where fair-minded men might honestly differ in their conclusion from the facts in evidence, whether controverted or uncontroverted. Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 (1959); St. Louis, I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786 (1914).

We have long recognized the rule that the very nature of the business of an electric company requires it to use a high degree of care in the erection, maintenance, operation, and inspection of its equipment which is used in the transmission of its electric power, so as to prevent injury to one likely to come in contact with the power line. Arkansas Power & Light Co. v. McGowan, 227 Ark. 55, 296 S. W. 2d 420 (1956). In Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 24 S. W. 2d 846 (1930) we recognized that:

“The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric apparatus, but thereafter it must use commensuate care to keep the same in a proper state of repair. The obligation of repairing defects does not mean merely that the company is required to remedy such defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.”

When we apply these well recognized and long established rules of law, we are of the view that in the case at bar there was a submissible issue for the jury’s consideration as to appellant’s negligence and, therefore, the court correctly denied appellant’s motion for a directed verdict. The questions of contributory negligence and the voluntary act of the appellee were questions of fact for the jury.

Nor can we agree with appellant that appellee was a trespasser. It is true that the appellant possessed a utility easement across the property for the purpose of constructing and maintaining its power line. The limitations of the easement are not before us. There was evidence that the power line was sagging to a height which was far below the recognized national standard for safety which was adopted by a state regulation. The appellee was a farm laborer who had the legal right to be upon and to cultivate the servient estate. The line sagged so low that it impeded the work being performed by the appellee to the extent he could not drive his tractor underneath the line. It appears that the appellent itself could be invading the rights of the servient estate since the maintenance of the line at this low height was unnecessary for appellant’s use of its dominant estate. See Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 454 S. W. 2d 331 (1970); Arkansas Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S. W. 2d 866 (1968).

We next consider appellant’s contention that the court erred in not permitting the jury to consider appellant’s affirmative defense that there was an assumption of risk by appellee when he touched the power line. We must agree with appellant. The doctrine of assumption of risk is applicable in cases of ordinary negligence and is not limited to mas ter-servant relationship. International Harvester Co. v. Pike, 249 Ark. 1026, 466 S. W. 2d 901 (1971); Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379 (1959). In 38 Am. Jur., Negligence § 173, it is said: “The doctrine of assumption of risk in an action between persons not master and servant * * # is confined to cases where the plaintiff not only knew and appreciated the danger, but voluntarily put himself in the way of it.”

In the case at bar, as appellant observes, it is true that the appellee entertained the belief that the power line was not energized or he would not have attempted to cut it. Appellee, however, voluntarily came in contact with the sagging line and there was evidence that he was warned to stay away from it. We think it was a fact question as to whether appellee’s belief was reasonable in the circumstances and, therefore, the defense of assumption of risk was properly a matter for the jury to consider.

We also agree with appellant that the court erred “in permitting the appellee to ask questions and introduce evidence about other deaths and law suits involving appellant in past years.” The appellee was permitted to elicit from appellant’s witness that an individual was killed 11 years previously by coming in contact with a power line when he was riding a combine. The witness replied that he knew of the incident, however, it was not in his territory. The witness further testified that he was not aware of any other accidents like this occurring within his territory. This question was permitted, over appellant’s objection, on the basis that the jury could consider it for the purpose of determining punitive damages. Appellee cites to us no authority as to the relevancy or probative value of this testimony. He merely asserts it was admissible to prove punitive damages. In our view this evidence relates to a matter too remote in point of time and from the scene of the accident. Therefore, it is inadmissible and prejudicial.

We are also of the view that it was error for the trial court to submit to the jury the issue of punitive damages. The court instructed the jury that it could impose punitive damages if it found that appellant, “its agents, servants or employees, knew or ought to have known, in light of the surrounding circumstances, that their conduct would naturally or probably result in injury and that they continued such conduct in reckless disregard of the consequences from which malice may be inferred.” AMI 2217. Negligence alone, however gross, is insufficient to justify an award for punitive damages. There must be the additional element of wantonness or such a conscious indifference to consequences that malice can be inferred. St. Louis, I. M. & S. Ry. Co. v. McMichael, 115 Ark. 101, 171 S. W. 115 (1914). In the circumstances, we cannot say there is any substantial evidence that the appellant’s conduct was such as would characterize its action as impliedly malicious with respect to foreseeable injuries to appellee.

The appellant also asserts the court erred in not permitting the appellant to ask “leading questions” on cross-examination of a witness and also erred in refusing a mistrial because of comments and interruptions during cross-examination of this 17-year-old witness who observed the occurrence of appellee’s injury. During the cross-examination the court instructed appellant’s attorney to ask him questions instead of making state-merits to him. Appellant’s attorney contends that he was only asking leading questions which he had the right to do on cross-examination. Ark. Stat. Ann. § 28-705 (Repl. 1962). It was the position of the court that the cross-examiner was making statements rather than asking questions. Even though the cross-examiner has the right to ask leading questions, this does not accord him the right to in effect testify by making statements. In the case at bar, although the issue is close, we observe that the appellant has some merit in its contention. Since this issue is not likely to occur upon a retrial, we deem it unnecessary to discuss it further.

The appellant also asserts that the court erred in permitting the appellee to testify as to his understanding and belief as to whether the power line was energized. Since we hold that the defense of assumption of risk was a submissible issue to the jury, we are of the view that the appellee’s understanding and belief were permissible in evidence for the jury’s consideration. However, we agree with appellant that it was impermissible for appellee’s employer (or appellee’s coworker), to testify as to his belief about the power line being energized. Although it was permissible for the employer to testify as to any facts known by him leading up to the occurrence, this knowledge would not permit him to state his belief and opinion.

The appellant also contends that it was error to permit appellee’s employer to testify regarding conversations with unnamed truck drivers as agents of appellant. We cannot agree. There was only one power agency, the appellant, which had served this area for many years. The witness was very familiar with appellant’s trucks and equipment that served this area. He testified that definitely the unnamed personnel to which he communicated his request to remove the lines were appellant’s employees who were operating its equipment. Further, that one of appellant’s drivers responded that he had no authority to remove the lines and that he would call the nearby main office. The witness observed and heard this employee relay his request to appellant’s main office by short wave radio. In the circumstances we think this testimony was admissible.

We cannot agree with appellant’s contention that it was error to refuse its instruction which defined intervening cause for the jury’s consideration. We agree with the trial court’s view that there is no evidence “to show that there is any event intervening which was completely independent of the conduct of either party.”

Appellant further contends that it was error to permit an expert witness to testify when the facts on which he based his opinion had not been established. The appellant objected on the basis that the hypothetical question did not contain facts that had been established by the evidence. We cannot agree with appellant. In our view the facts presented in the hypothetical question were fairly established by the evidence. Furthermore, if appellant considered there were omissions of fact which were essential to the question propounded, these additional facts could be supplied to the witness on cross-examination. Shaver v. Parsons Feed & Farm Supply, Inc., 230 Ark. 357, 322 S. W. 2d 690 (1959).

For the prejudicial errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

Fogleman and Byrd, JJ., dissent in part.

John A. Fogleman, Justice,

dissenting in part. I concur in the result reached by the majority holding that there was evidence to pose jury questions as to appellant’s negligence and the proximate cause. I would have grave doubt that the actions of Daniel were sufficiently foreseeable to justify a finding of negligence or that his injury or the manner in which it was. inflicted was a natural and probable consequence of the omissions of Woodruff, if it were not for the testimony relating to the reasons for not de-energizing the 7620-volt line which was serving no one. Even though its disuse seemed to justify the removal of a supporting pole, there was testimony tending to show that the reason for leaving the line charged was to prevent theft of the wire. Not only was there testimony that officials of appellant had stated that numerous people were stealing wire in its service area, these officials admitted that one of the reasons for leaving unused lines “hot” was to prevent the continual thefts of wire which they had been experiencing. Thus, it seems that appellant might possibly have foreseen the cutting of wire on a line, which might, from appearances, have been taken to be an abandoned line, and that such cutting might be a natural and probable consequence of leaving an inadequately supported line sagging over farmland at a height which would prevent the passage of ordinary farm equipment thereunder.

I do not agree that it must, or can be said, as a matter of law, that appellee was not a trespasser. It seems to me that we could come nearer saying that when he undertook, on his own initiative, to cut and remove appellant’s transmission lines, he became a trespasser as a matter of law. Certainly, his right to do so could not be any greater than that of his employer, the owner of the servient estate.

Daniel testified that:

He had seen the line every day before his injury and knew that it had been sagging for better than a year; he pulled up beside the line and decided he would cut it; he stopped his tractor, went to his tool box, got his pliers, drove his tractor under the lower of two wires, got on the chemical tank on the tractor on his hands and knees and cut this wire, which was then about the level of his chest, then got off the tractor and wrapped this wire around a post; he got back on his tractor and moved it 25 to 50 feet in order to place it under the second wire which was about two feet higher than the one he had first cut, again knelt on the tractor just as he had done when he cut the lower wire, reached up with his left hand and grasped the wire and received the shock and injury of which he complains.

The tractor was an 806 International, with 100-gallon tanks for chemicals on the fenders. There was testimony that the tractor was six feet high and that the top of the tanks was about two feet higher, and that Daniel, kneeling, rose some three feet above the level of the top of the tank.

Although we do not know the exact terms of the easement involved, it is stipulated that appellant had been granted a right-of-way for the construction of an electric distribution line across the employer’s land in order to serve a house, also on his land. In the absence of any showing of a limitation on that easement, appellant as the owner of the dominant estate had the right to use it to the extent necessary for the erection, operation and maintenance of the line, and the landowner as the holder of the servient estate retained the right to exercise all rights of ownership not inconsistent therewith. Neither has the right to use the right-of-way in a manner that will interfere with the use and enjoyment thereof by the other. Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 454 S. W. 2d 331. The landowner must not interfere with the property of the utility to whom the easement is granted. Patterson Orchard Co. v. Southwest Arkansas U. Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A. L. R. 2d 1446; Drainage District No. 16 v. Holly, 213 Ark. 889, 214 S. W. 2d 224.

The unlawful and intentional injury of a wire, line or other apparatus belonging to a firm or corporation engaged in the sale of electricity is a misdemeanor punishable by fine or imprisonment or both. Ark. Stat. Ann. § 41-4236 (Repl. 1964). This, of course, is a form of trespass. See Miller v. State, 190 Ark. 362, 159 S. W. 1125. Even if Daniel originally entered upon appellant’s right-of-way with the most innocent intentions, his subsequent action in cutting or attempting to cut the wires was nonetheless a trespass, if unwarranted or illegal under the circumstances, and as to those actions he was probably a trespasser. Ballard v. Noaks, 2 Ark. 45. The subject is given excellent coverage in Restatement, Torts, Second 407, §214. There we find:

Liability for Excess; Trespass ab Initio
(1) An Actor who has in an unreasonable manner exercised any privilege to enter land is subject to liability for any harm to a legally protected interest of another caused by such unreasonable conduct.
(2) One who properly enters land in the exercise of any privilege to do so, and thereafter commits an act which is tortious, is subject to liability only for such tortious act, and does not become liable for his original lawful entry, or for his lawful acts on the land prior to the tortious conduct.
Comment on Subsection (1):
a. A privilege to enter land may be unreasonably exercised either by the intentional doing of an act which a reasonable man would not regard as necessary to effectuate the purposes for which the privilege is exercised. Subsection (1), therefore, applies not only where the actor deliberately abuses his privilege by doing an act which he recognizes as unnecessary or deliberately does an act which a reasonáble man would so recognize, but also where the actor does not use reasonable care to prevent the exercise of his privilege from involving an unreasonable risk of harm to the legally protected interests of others.
b. In the vast majority of cases the intentional or negligent misconduct of the actor in the exercise of his privilege is of such a character as to be intended to harm or likely to harm the land itself or persons or chattels upon it. However there may be cases in which the actor’s unreasonable exercise of his privilege involves a recognizable and unreasonable risk, or even a certainty, of harm to persons or things outside the land, in which case the statement in this Subsection subjects the actor to liability ,to such persons for harm resulting to them.
c. As to the effect of serious affirmative misconduct on the part of the actor upon his liability for his original entry on the land, see Subsection (2).
* # #
Comment on Subsection (2):
* # # ,
(f) In any case where the lawful entry upon land is used as a cover or cloak for the subsequent misconduct, and the entry is for the purpose of taking advantage of the privilege conferred by authority of law in order to commit another tort, the actor remains liable under Subsection (1) of this Section. The subsequent misconduct is always to be considered as evidence bearing on the original intent.

To say the least, there is certainly substantial evidence upon which a jury could have found that Daniel was a trespasser.

If there is indeed a jury question as to foreseeability in determining whether appellant was negligent and a question as to proximate cause if appellant was negligent, then I do not see why there is not also a jury question on appellee’s entitlement to punitive damages. There can be no doubt that appellant knew that its 7620-volt distribution line passed directly over agricultural lands being cultivated by the use of power-driven equipment. It knew that the line had served no one for two years. It removed a supporting pole at the middle of the span leading to the house formerly served, approximately one year- prior to Daniel’s injury. It knew that the line would sag. There is evidence from which the jury might find that removal of the line had been requested by the landowner and that the line was interfering with farming operations. Appellant had a duty to exercise a high degree of care to inspect and maintain its line in proper condition to prevent injury to one likely to come in contact with it. Yet, it cannot be doubted that the line did sag below the height prescribed by safety standards, and appellant certainly knew that the sag would be greater in the summer than in the winter. Even though appellant claims it was short of money which could be used to remove abandoned lines, the removal was a rather simple operation after Daniel was injured. When consideration is given to the testimony as to appellant’s purpose in leaving the line charged, it seems that if the jury should find the requisite foreseeability on which to base a finding of negligence, that this negligence was a proximate cause of his injury and that Daniel did not voluntarily assume the risk, then the test for evidence to support an award of punitive damages has been met. If appellant should have known that its conduct would probably result in injury and continued that conduct in a conscious indifference to consequences from which malice may be inferred, then the jury might properly award .punitive damages. McGlone v. Stokes, 193 Ark. 1008, 104 S. W. 2d 191. In Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215, 27 S. W. 66, it was held that there was substantial evidence to support an award of punitive damages. The evidence showed these facts:

During the night there was a severe electrical storm causing some of the electric company’s wires to break at about 2:00 a.m. It was discovered at the power house that there was a “ground” or connec* tion between the power line and the earth, either by direct contact of a broken line, or by the line or broken ends of it coming in contact with a tree, with the pole or roof of a house, or a string, wire or rope resting on the earth thrown over the line. It was scarcely possible to locate the “ground” by tests, and the weather was such that it may not have been reasonable to expect the company employees to search for the broken wires until daylight. As soon as the “ground” was disclosed at the power house, an employee of the company awakened and advised the superintendent, who sent word to the engineer in charge of the plant to “go ahead.” The deceased for whose estate the suit was brought took hold of a wire that ran to a saloon and was warned to be careful. The wire turned out to be dead. This was after daylight and after people had begun to appear on the city streets. The deceased was in position to have seen a hog receive a shock from live wires on the other side of the street. While crossing the street, he picked up a broken wire that ran into the saloon and dragged it toward a drug store across the street. In obedience to an order by a policeman to put down the wire, the deceased threw it. He received a fatal shock as he did so, apparently as a result of this dead wire coming into contact with a live one.

If there was sufficient evidence to support an award of punitive damages in that case, then the jury should have had the discretion to award them here.

I am also of the opinion that there was error in the denial of appellant’s requested instruction no. 17, AMI 503, telling the jury that if any event occurred following an act or omission on the part of a party completely independent of that party’s conduct, the original act or omission is not a proximate cause. The circuit judge denied this instruction, stating that appellee alleged that there was negligence on the part of appellant and appellant alleged negligence on the part of appellee, and if there was negligence on the part of appellant, there could be no independent intervening cause. I submit that this ruling was erroneous.

Apparently, the trial judge felt that if appellant were guilty of negligence, the acts of appellee could constitute contributory negligence, but not an inervening cause. Our cases hold to the contrary. Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816, 31 L. R. A. (n. s.) 1020; Hayes v. Missouri Pacific Ry. Co., 208 Ark. 370, 186 S. W. 2d 780. In the McIlroy case we held that the acts of a plaintiff who, in igniting a piece. of paper at a smoldering fire with which she attempted to start a new fire, set fire to her own clothes constituted an efficient intervening cause of her injury which prevented recovery from the defendant, even if it was negligent in starting the original fire, or in leaving it unguarded. The acts of the plaintiff were said to make the setting of the fire too remote to be the cause. We said that the jury should have been instructed tha,t such conduct on the part of the plaintiff would bar her recovery. • ,

In Hayes, we held that the chain of causation between negligence and injury is broken when an independent act of a plaintiff, not within reasonable. contemplation of defendant, intervenes to bring-, about injury. Our-holdings are based upon the principle that the consequence of the original negligent act must be within the range of probability as viewed by the ordinary man, so that consequences which are merely possible cannot be regarded as either probable or natural and cannot be a proximate cause. In Hayes,- a railroad track laborer attempted, without being instructed to do so, to extinguish a fire on the railroad right-of-way while his clothing was saturated with creosote from his finishing rails and angle bars, A directed verdict was sustained, not because the laborer was held to be . guilty of negligence, as a matter of law, but because his injury was not one which , was the natural and. probable. consequence of the fire being set or foreseeable by the. railroad, in the light, of the existing circumstances.

In another case involving the setting of a fire by a .locomotive, we held that one who sustained personal injuries in fighting the fire in a burning pasture was not entitled to recover for them. Missouri Pacific Railroad Co. v. Benham, 192 Ark. 35, 89 S. W. 2d 928. There we said:

Plaintiff suggested and adopted, his. own method of fighting the- fire, and proceeded with its execution according to his own judgment, without dictation or interference by any of defendant’s employees. Defendant made no contention that the fire was not occasioned by sparks from its passing locomotive, and there was no proof made as to the fire escaping from the locomotive because of any negligence on the part of defendant, as it was liable for any damage by fire caused by the locomotive because of section 8569, Crawford & Moses’ Dig., whether the fire was occasioned with or without negligence. If, however, it may be assumed that some negligent act or omission on the part of defendant resulted in setting out the fire, nevertheless there is no liability for the physical injuries plaintiff has suffered. It is well settled that, before liability can attach to anyone for a negligent act, it must be the proximate cause of the resulting injury and one which, in the light of attendant circumstances, a person of ordinary foresight and prudence could have anticipated. St. Louis, I. M. & So. Ry. Co. v. Bragg, 69 Ark. 402, 64 S. W. 226, 86 Am. St. Rep. 206; Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816, 31 L. R. A., N. S., 1020. It was the duty of plaintiff to use reasonable efforts to himself extinguish the fire and thus minimize his damage; if, in doing so, he was intemperate and injury to himself occurred, it was his own fault and a consequence which could not have been reasonably foreseen from the negligent act, if any, of the defendant in allowing fire to escape from its locomotive. In other words, it was his own act which was the active intervening cause directly producing the injury and not the original alleged negligent act of defendant.

Even if it could be said that appellant was guilty of negligence as a matter of law, this does not mean that its negligence was the proximate cause of appellee’s injury. It may well be that a jury would find that appellee’s action in cutting the wires was an intervening act not the natural and probable consequence of any act or omission on appellant’s part. If so, appellee’s acts constituted an independent efficient intervening cause, even though appellant may have been guilty of negligence.

The evidence in this case would constitute very substantial evidence in support of such a finding. W- H. Gerrard testified that on the morning of the occurrence he told Daniel to leave the lines alone, and to go down beside the wires rather than under them. He said that he told Daniel and all his other employees not to bother the lines. Dan Johnson, Daniel’s immediate boss and field foreman for Gerrard, was present at all times when Daniel was operating the tractor on the day of his injury. Johnson testified that the tractor drivers had been told on the , day of Daniel’s injury to tufn when they came to the line. He., said that the tractor equipped with the tanks would not pass under the line, which he said was 12 ór 13 feet above the ground. Johnson stated that he had warned Daniel about the line on the day before, that he had told Daniel and all other tractor drivers to stay away from the line on the morning before the incident, that he warned Daniel at the time he cut the first line and told him not to cut the second line. Johnson said that he had told the drivers to work up to the line and turn around. He also testified that all the drivers had done this prior to Daniel’s injury. Johnson testified that he knew what Daniel was going to do when he got the pliers out of his tool box, so he told him not to cut the line. After appellee cut the lower line and moved the tractor into position under the higher one, Johnson said that he hollered to Daniel, “You want me. to. call Lacey Funeral Home?” and that another tractor driver hollered to Daniel, “What do you want me to tell Chi?” This driver and Bill Gerrard, son of Daniel’s employer, corroborated Johnson’s testimony about this remark. Bill Gerrard also, heard Johnson call out when Daniel was about to cut the first wire, “Don’t cut it, it’s hot.” This witness heard Johnson warn Daniél twice.

. I do not see how it could be seriously urged that appellant was not entitled to this instruction.

In all other respects I agree with the majority opinion.

      There was also testimony that this wire may have been three feet higher than the other, and testimony that it was more than 13 feet above the ground.

      The injury occurred June 4, 1968.

      Chi was appellee’s wife.


author: Carleton Harris, Chief Justice.

text:
    Darnley WASHINGTON and Linza COWANS v. STATE of Arkansas
    5637
    473 S.W. 2d 157
    Opinion delivered November 29, 1971

      Louis W. Rostek and William C. McArthur, for áppellants.

      Ray Thornton, Attorney General; Gene O’Daniel, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellants, Linza Cowans and Darnley Washington, were convicted óf burglary and grand larceny by the Pulaski County Circuit Court (First Division) sitting as a jury, and each was sentenced to two years imprisonment on each count. From the judgment so entered, appellants appeal. The two were accused, along with several other defendants, of breaking into Laing’s Service Company, and stealing five television sets, a stereo, a tape player, a. .transistor radio, and an air conditioner. Officer Seats, of the Little Rock Police Department, testified that a call came over the radio that the burglar alarm had gone off at La'ings, and he made an investigation. A window on the south side of the building had been broken.' Seats then looked over the general area, together with other officers who had come to the neighborhood. Some three or four blocks from the. store, the officers noticed an old Pontiac automobile with the left side doors open, the engine warm, and they observed the lights on and heard people talking, in an apartment about 75 feet from where this car was parked. This of course was unusual, since. it was between 3:00 and 4:00 a.m. Between the Pontiac and the apartment, five or six feet from the vehicle, the officers found á red merchandise tag which evidently had been attached to an electrical appliance. One of the officers took this tag back to the store, and Laing identified it as coming from his place of business. The officers then returned to the apartment, knocked several times, identified themselves, and the door was opened by an .occupant of the apartment. Seats said' that, on entering; he “observed several tv’s, stereos, and air conditioners”, and other electrical appliances sitting on the floor in plain view. There were five people present ih the room, including the' regular occupants of the premises, Charles Scott, his wife, and Cowans. In a bedroom at the rear, appellant Washington was found in bed with a woman named' Charlotte Shackleford. Washington had on his pants and undershirt. The woman had on a slip or nightgown. All were taken to headquarters, and the articles, previously mentioned, were likewise taken, to headquarters and were subsequently tagged.

We first discuss the evidence against Cowans. Here, two points are asserted for reversal,, viz, that the. court erred in allowing the state to impeach the testimony of its witness, Charlotte Shackleford, and erred in allowing the testimony of Mr. Laing concerning the identity of certain appliances “due to the fact that the property was not in court during trial and there was no testimony to identify the property' belonging to Mr. Laing as being the property taken from the apartment”.

Jess Hale, Sergeant at the Little Rock Police Department; testified that he interrogated Cowans, first advising him of his rights, likewise having a form'setting out-these rights (according to Miranda v. Arizona, 384 U. S. 436) executed by Cowans. The officer testified that this waiver form was read to Cowans, and that the latter stated he understood what he was signing. In the státement, Cowans related that he, with others, including Damley Washington, had been drinking all evening. He said that while they were riding around, he went to sleep; but awakened when someone told him that the' window was broken out of the “T. V. place at Roosevelt and Louisiana”. He said they all walked up to the front and he followed someone through the broken window and picked up a television, taking it back to the car and putting it in the front seat. They then went to the home of Scott, “took some stuff into the house” and he then went to sleep on the couch, awákening when the' police knocked on the door. He related that Scott asked who was there, received the answer “Policé” and1 that Scott then opened the door and several officers came into the room. In his statement, Cowans never did identify who . was present at the time Laing’s store was énteréd. In testifying before the court, this appellant'stated that he passed out during the time the occupants óf the' car were driving around, and when he awakened, he was on a couch in the front room of Scott’s apartment. He said that “they”' brought in “some tv’s” and that he went to a back room and laid down. When the others returned “■they had some more , stuff”. “They” apparently meant Scott and a man named Carter since Cowans testified that Washington did not carry any of the merchandise into the room; in fact, he said he saw Washington in one of the bedrooms. Cowans, in testifying, denied that he went to Laingis Store, and said that he signed the statement because he was threatened by the officers, be-' ing told “I’ll make it hard for you; I’ll, keep you here so you’ll never get out”. He stated that he- signed the statement but didn’t read it, and it wa-sn’t read to him. However,, there is no contention here that Cowans was threatened or that the statement was not voluntarily signed; nor is it argued that he signed the statement unaware of its content.

Charlotte Shackleford was . in the Scott apartment when the. officers, arrived, and she was taken to heacb quarters where a statement was taken by Officers Baer and Harris. The officers testified that they advised her of her constitutional rights, and read the “rights” form to her; that she also read it and said that she understood it. The officers said they advised Miss Shackleford how to commence the statement and then left the room and she knocked on the door when she finished writing it. In pertinent parts of the statement, i. e., that portion affecting appellants, she said that she was in bed, heard loud talking, ran to the window and looked out and saw all kinds of appliances; that Scott, Cowans, Carter and Damley Washington came into the apartment with two television sets; that some twenty minutes later the officers arrived. When she testified in court, she said that about 7:00 p.m., Irma Scott, wife of Charles Scott, called her and asked her if she (Charlotte) would stay all night with Irma. She said she arrived at the apartment at about 9:30 p.m.; that they sat around until about midnight, went out and bought ice cream, came back and talked until about 1:30 p.m., at which time she went to bed. She then stated that between 3:00 and 4:00 a.m. Charles Scott, James Carter and appellant Cowans' came in the door. Her testimony was somewhat different from the statement given although the difference principally related to the appellant Washington. The state then questioned Miss Shackleford about the differences in the statement and her testimony. It is urged that the prosecutor should not have been permitted to impeach his own witness. There is really no need to discuss this contention since her testimony was of no value to Cowans. The court announced that it was considering neither her statement nor her testimony, and the court’s ruling can be easily understood because, even in her testimony, she made conflicting statements, depending upon whether she was being questioned by the prosecution or the defense. She clearly stated at the outset of her testimony that Cowans was one of three men who came in the door, and this testimony was reiterated. Subsequently, on cross-examination by Cowans’ attorney, she said she didn’t see Cowans come in. There is no merit in this point.

As to the second point, we do not agree that there was an insufficient identification of the property taken. This property had been taken from the apartment to the police station and tagged. Subsequently, Laing came to the station and recovered his property. The property that had been stolen was not offered in evidence at trial, and appellant Cowans argues that it was never shown that the property recovered from the police station by Laing was the same property which was taken to the station from the apartment by the officers. We disagree. Mr. Laing offered in evidence a list of the items that had been stolen from his store, showing model numbers and serial numbers. He also testified that these were the items that he recovered at the police office. It is true that not all of the officers who took the stolen articles to the station testified. Detective Ridge testified that he helped in storing the stolen merchandise “put it on the evidence book and the tags on it”. He said that a record of the serial numbers was made at the police station, “I imagine it would be on the property book”. He stated that it would also be on the offense report; when asked if he made it out, he replied that he didn’t and that it was made out by “Officer Morgan and me”. Apparently he called off the numbers and Morgan recorded them. Officer Baer testified that the investigating officers had stored the property the night of the investigation. He was not present at that time but he did have the list, which shows five television sets, an RCA player, a Zenith stereo and a Whirlpool air conditioner. All of the serial numbers matched the numbers listed by Laing and all model numbers were the same except two. Laing had identified one television as Serial No. 73-BTB4081, model as EL, while the officer listed it as a DL, and the air conditioner was listed by Laing as serial No. 3966, model No. AVMP 50-20, and Baer listed it as ABMP 50-12. It will be noted that all serial numbers corresponded. So, we have definite evidence that Laing had certain merchandise stolen from hkn; that this merchandise was recovered by him at the police station where it had been brought by officers; that an official at the police station had the record of the items that had been brought in. We do not have the testimony of the officers who brought in the stolen items (other than Detective Ridge who did not keep a personal record of the numbers), but we think the other evidence of identification supplies the defect. To say that the property was not properly identified would be to become rather technical in the face of the evidence mentioned. Accordingly, we have the testimony of the officers that Cowans was in the front room with the merchandise when the officers went in, and the statement by Cowans in which he admitted participation in the burglary. This evidence was sufficient to convict, and finding no error in the points asserted, the conviction of Cowans will be affirmed.

As to Washington, it is argued that the evidence confiscated by the officers was obtained by an illegal search and seizure and was thus a violation of Washington’s constitutional rights, and further, that the testimony was insufficient for conviction of this appellant. Since we feel that the evidence was insufficient to sustain the conviction, there is really no need to discuss appellant’s first point, although we find it to be without merit. Based on the circumstances outlined previously, we think that the officers had reasonable grounds to believe that appellants had committed a felony; further, the officers were voluntarily admitted by either Scott, or his wife, and if by the latter, in Scott’s presence.

When the statement of Charlotte Shackleford.. is eliminated, the evidence of Washington’s participation is insufficient to sustain the conviction. In her statement, she had said that Washington had come in with the others, and that, upon arrival of the officers, had jumped in’ her bed, arid requested her to state that he had been there all night. As previously stated, this statement was not considered by the court, which action was correct. The result is that we have Washington in the apartment, but no evidence that he came into the apartment with the others, or participated in the burglary, or assisted in transportation of the stolen articles. Cowans did not definitely involve Washington and, according to the officers, he was not in the front room when they entered. In addition to his being present in the apartment, we have only the circumstance that he was in bed, partly dressed, when apprehended. Appellant, after detailing his activities earlier in the evening, when he had been with the others, testified that he had left them about 12:30 a.m., being driven to the home of his brother, Wadell Washington.

“I got out, went to the house, all right. You know they had the upstairs and downstairs, the bedroom was upstairs.. I hollered for my sister-in-law to come and open the door. She said, okay; she be down in a minute. I went around on the front porch, and I sat there for awhile and I had been drinking so I went on to sleep.”

He said that when he awakened, he found that the door had not been unlocked, and since he was to work the next day with his father, decided to go on home. In passing Scott’s apartment, he saw the light, and stopped to request someone to take him home. He testified that he went in and asked Carter to take him home. Carter replied that he would take him in a few minutes, and he went to the bedroom to talk with Charlotte while he was waiting. About twenty minutes later, the officers arrived. Washington testified that he saw the “tv’s. and stuff” when he entered the apartment.

While one might have good reason to suspect Washington as one of those involved, suspicion cannot take the place of evidence, and we do not think, under the facts presented, that it can be said that there was substantial evidence to support the verdict.

In accordance with what has been said, finding no reversible error, the judgment of conviction of Cowans is affirmed; as to Washington, the judgment of. conviction is reversed, and the cause remanded.'

It.is so ordered.

       Other defendants are not involved in this appeal.

      Miss Shackleford was never charged as being implicated in the crime.

      One was later killed.

      There was evidence that each had opened the door.


author: George Rose Smith, Justice.

text:
    LaVerne SANDERS v. CITY OF FORT SMITH
    5-5657
    473 S.W. 2d 183
    Opinion delivered November 29, 1971

      Harper, Young ir Smith, for appellant.

      Daily, West, Core ir Coffman, for appellee and cross-appellant.
   George Rose Smith, Justice.

This is a civil service proceeding arising from an attempt by the City Administrator of the city of Fort Smith to discharge the appellant, LaVerne Sanders, from his position as chief of the municipal fire department. Sanders had worked for the fire department for some 27 years and had been fire chief for several years. On October 29, 1969, the City Administrator notified Sanders by letter that he was dismissed from his position, for certain enumerated reasons. Sanders took the matter to the Civil Service Commission, presenting to that body only the legal issue of whether the City Administrator had acted within his lawful authority in dismissing Sanders. The Commission upheld the dismissal. The circuit court, on appeal, found no violation of due process, but the court remanded the case to the Commission with instructions to conduct a hearing to determine whether good cause existed for the appellant’s discharge. Both sides have appealed, but in the view we take we do not reach the city’s cross appeal.

For the most part the question now before us is controlled by pertinent statutes and by a municipal civil service regulation. Fort Smith operates under the City Administrator form of municipal government, created by Act 36 of 1967. Ark. Stat. Ann., Title 19, Ch. 8 (Repl. 1968). Section 11 (4) of that act (§ 19-811 [4]) empowers the City Administrator to remove some municipal officials and employees, but the section expressly provides that the Administrator’s power of removal does not extend to officers and employments controlled by civil service.

We accordingly turn to the laws governing civil service employees. The statute with respect to policemen and firemen under civil service provides that such employees must be given written notice of the cause for their discharge. Sections 19-1603 (11) and 19-1605.1. The statute does not state by whom the notice is to be given, but the statute does empower the municipal civil service commission to make rules and regulations having the force and effect of law. Section 19-1603; Civil Service Commn. of North Little Rock v. McDougal, 198 Ark. 388, 129 S. W. (2d) 589 (1939). Pursuant to that authority the Fort Smith commission adopted this regulation: “No civil service employee shall be discharged . . . without being notified in writing by the department head or the governing body of the city , of such discharge . . . and the cause therefor at the time the action is taken.’’

We construe the regulation to mean that a department head, such as the chief of the fire department, can be discharged only upon written notice given by the governing body of the city. Under the City Administrator form of municipal government the governing body of the city is a seven-member Board of Directors. Section 19-806 (a). Consequently the City Administrator did not, acting alone, have lawful authority to discharge Sanders.

The city contends, however, that Sanders was actually discharged by the Board of Directors. We cannot sustain that contention. The proof amounts merely to this: Upon some date not shown with certainty the city’s board of directors met with the City Administrator in executive session; that is, in a session closed to the public. Random House Dictionary of the English Language (1966). No written record of the session was made. In fact, the board’s secretary was not allowed to be present. The City Administrator informed the board members that he desired to discharge Sanders if Sanders would not resign. The board members nodded their approval, but no record was made of their action. Later on the Administrator wrote Sanders a letter setting out the reasons for his discharge, but there is no suggestion that the directors ever saw the letter or knew of its contents.

We cannot say that such a loose and informal procedure complies either with the statute or with the municipal regulation that we have quoted. The statute contemplates that important action taken by the city’s board of directors be evidenced by a record; for every motion, resolution, and ordinance must be signed by the mayor or adopted over his veto. Section 19-809 (a) and (c). Moreover, the quoted civil service regulation directs that the discharged department head be notified “in writing” by the governing body of the city of the cause for his discharge. In this instance neither the statute nor the regulation was complied with.

The circuit court erred in attempting to return the matter to the Civil Service Commission, for no lawful discharge was shown. We remand the cause to the circuit court with instructions that the appellant be given an opportunity to prove his net damages under the statute, if he so elects. Section 19-1605.1.

Reversed and remanded.


author: Lyle Brown, Justice.

text:
    Dudley Allen GULLETT v. Dorothy Diane GULLETT
    5-5658
    473 S.W. 2d 180
    Opinion delivered November 29, 1971

      Branscum, Schmidt hr Mazzanti, for appellant.
    No brief for appellee.
   Lyle Brown, Justice.

Appellee Dorothy Diane Gullett was awarded a divorce, custody of the one child born to the marriage, and $125 a month for support of the child. Appellant here argues insufficiency of corroboration to sustain the divorce, condonation of the acts complained of, excessiveness of the support award, and visitation rights which appellant classifies as unreasonable.

Appellee testified as to divers acts of indignities committed to her by appellant. Those consisted of cursing her, beating her, and excessive and habitual drinking which was obnoxious to her. Appellee’s brother testified that he had seen appellant strike appellee and had on numerous occasions heard appellant curse appellee. Still another witness testified that the couple did not. get along very well. Appellant offered no testimony in opposition, although he was present in person and by counsel. The corroborating testimony was weak but we have held that when a divorce action is not a collusive contest the required corroboration can be comparatively slight and yet be sufficient. Breazeale v. Breazeale, 248 Ark. 437, 451 S. W. 2d 865 (1970). We think the corroborating evidence in the case at bar meets the “comparatively slight” test.

The chancellor fixed child support at $125 per month. The testimony showed that appellant was grossing approximately $625 per month but was having to pay for travel and lodging away from home. In view of the recited expenses, along with federal and state deductions, we think the amount fixed by the court was somewhat excessive. Also, the mother testified that á minimum of $50 per month would be required for child support. We think $75 a month would be more within reason to cover the ordinary expenses for the child, who was five years old at the time of the trial.

The chancellor fixed appellant’s visitation rights with the child at every other Saturday from 9:00 a.m. to 4:00 p.m. The undisputed testimony is that the child is devoted to her father. If appellant is a fit person to have the child in his care every other Saturday then we see no good reason why he should not have visitation rights every Saturday during the same hours fixed by the chancellor. The trial court directed that the little girl not be removed from the eighth chancery district and no reason is advanced urging us to change that rule. There is also no appeal from the attorney’s fee awarded in the lower court.

The cause is remanded to the chancery court for the purpose of entering an order consistent with our findings and to reinvest jurisdiction for the modification of support money and visitation rights if future developments justify a change.

Affirmed in part, reversed in part.


author: John A. Foglema.n, Justice.

text:
    Dennis TURNER v. STATE of Arkansas
    5618
    473 S.W. 2d 904
    Opinion delivered November 29, 1971
    [Rehearing denied January 10, 1972.]

      Tackett, Moore, Dowd ér Harrelson and Autrey & Weisenberger, for appellant.

      Ray Thornton, Attorney General; Henry Ginger, Asst.Atty. Gen., for appellee.
   John A. Foglema.n, Justice.

This is the second time Dennis Turner has appealed from an order denying his motion - to dismiss an indictment for robbery of Larry Wayne Yates. In both motions he asserted that he was entitled to a dismissal of the indictment because he had been acquitted of the murder of Yates while perpetrating the very robbery with which he was charged in the indictment he seeks to have dismissed. The first motion was based upon a plea of double jeopardy and res judicata. It was denied and we affirmed. Turner v. State, 248 Ark. 367, 452 S. W. 2d 317. The second motion was then filed. In it appellant also pleaded double jeopardy and res judicata. It was also denied and this appeal resulted.. The majority of the court feels that the order denying the motion is an appealable order. We affirm because our decision on the prior appeal' is the law of the case.-

Appellant admits that the only difference in the record from that presented on the first appeal is-that-the-complete transcript of the record of the trial on the murder charge is now béfore us. It is accompanied by a stipu-s lation of the prosecuting attorney that the evidence that will be presented on the robbery charge is the identical evidence that was presented in the murder trial. Appellant argues that under the doctrine of collateral estoppel his trial for robbery after the acquittal of murder is violative of the double jeopardy provisions of the state and federal constitutions, relying upon the decision in Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), decided seven days after our opinion on the first appeal was handed down. There the United States Supreme Court said that acquittal of Ashe of the robbery of one of six persons he was charged with having robbed simultaneously could not have been based* upon anything other than a finding that Ashe had not been one of the robbers who perpetrated the crime. : It. then voided Ashe’s conviction of the robbery of a secohd victim, holding that the second trial constituted .’double jeopardy. This holding was based upon the principle that-the determination of the ultimate issue in. the-first trial — whether Ashe was one of the robbers — forever barred the parties, i. e., the state and the defendant, from ever litigating the same issue again- under the doctrine of collateral estoppel.

We need not ponder over the application of the* rule of Ashe to the facts of this case. The doctrine of “law of the case” is a fundamental essential of any system of justice which permits áppeals from trial court action. Without it, termination of litigation would depend upon exhaustion either of the resources of the unsuccessful party or of the resourcefulness of his counsel. See Porter v. Doe, 10 Ark. 186; Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S. W. 741, aff’d 273 U. S. 672, 47 S. Ct. 475, 71 L. Ed. 833 (1927). The application of the doctrine to criminal cases is well established. Bowman v. State, 93 Ark. 168, 129 S. W. 80; Mode v. State, 234 Ark. 46, 350 S. W. 2d 675, cert. denied, 370 U. S. 909, 82 S. Ct. 1255, 8 L. Ed. 2d 403 (1962). See also, Clark v. State, 246 Ark. 876, 440 S. W. 2d 205; Fuller and Walton v. State, 246 Ark. 704, 439 S. W. 2d 801, cert. denied, 396 U. S. 930, 90 S. Ct. 260, 24 L. Ed. 2d 228 (1969). It requires that a party assert whatever objections that he may have to any step in a proceeding in a trial court prior to appeal from an adverse ruling. A decision on appeal on any question there presented forecloses further consideration of that question in subsequent proceedings in the same case, even though the argument made or ground of objection relied upon on a second appeal is not identical with the argument made or ground asserted on the first appeal, if the new argument or objection could have been urged on the first appeal. St. Louis Southwestern Railway Co. v. Jackson, 246 Ark. 268, 438 S. W. 2d 41; Moore, Admx. v. Robertson, 244 Ark. 837, 427 S. W. 2d 796.

The rationale of Ashe is that “collateral estoppel” is encompassed within the ambit of double jeopardy constitutional prohibitions. See also, De Sacia v. State, 469 P. 2d 369 (Alaska 1970); State v. Hite, 3 Wash. App. 9, 472 P. 2d 600 (1970). The terms “collateral estoppel” and “res judicata” are often used interchangeably in criminal cases. De Sacia v. State, supra. The former has been considered an aspect of the latter. Hoag v. New Jersey, 356 U. S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958), reh. denied, 357 U. S. 933, 78 S. Ct. 1366, 2 L. Ed. 2d 1375 (1958). See 46 Am. Jur. 2d 565, Judgments § 597; Stone, Res Judicatá in Criminal Cases, 27 Texas Law Review 251 (1948). Because “collateral estoppel” is included in both concepts relied upon by appellant in both motions, there can be no doubt that the decision on the first appeal governs this appeal as the law of the case.

The fact that Ashe v. Swenson was decided by the United States Supreme Court after our opinion was rendered on the first appeal makes the doctrine of “law of the case” no less applicable, even if if might be under circumstances other than those existing in this case. Appellant filed a timely petition for rehearing after the Ashe decision based substantially on that holding. We denied that petition with full appreciation of all the implications of Ashe. Nor does the addition of the transcript of the record of the murder trial militate against the application of the rule. No reason appears for its not having been presented at the hearing on the first motion to dismiss.

We are aware of the decision of the United States Supreme Court in Harris v. Washington, 404 U. S. —, 92 S. Ct. 183, 30 L. Ed. 2d 212 (1971). This decision does nothing more than apply Ashe to a factual situation.,virtually identical with that in Ashe. That decision would not affect the application of the “law of the case.“

The judgment is affirmed.


author: J. Fred Jones, Justice,

text:
    Gary E. MILLER v. STATE of Arkansas
    5649
    474 S.W. 2d 112
    Opinion delivered November 29, 1971
    [Rehearing denied January 10, 1972.]

      Lloyd C. Burrow, for appellant.

      Ray Thornton, Attorney General; Fred H. Harrison, Asst. Atty. Gen.,, for appellee.
   J. Fred Jones, Justice,

On the night of April 3, 1971, an automobile disappeared from its parking space at a cafe near Springdale, in Benton County, Arkansas. It was later found abandoned near Seligman, Missouri. One Peter Pion was questioned by police officers and he implicated the appellant Miller in the theft of the áutomobile. Miller was taken into custody and questioned by the police officers. He signed a written statement admitting his part in the theft of the automobile. Miller was charged with the crime of grand larceny in the theft of the automobile and was tried before a jury in the Benton County Circuit Court. He did not testify at his trial but the statement he gave to the police officers was introduced into evidence by. the state. Miller was convicted and sentenced to five years in the Arkansas Penitentiary.

In anticipation that Miller’s statement would be offered in evidence, his court appointed attorney filed a motion to suppress on the ground that the statement was given involuntarily and without intelligent knowledge. Following an in-chambers hearing, the motion was denied and the statement was introduced into evidence over Miller’s objections. On appeal to this court Miller contends that the trial court erred in denying his motion to suppress, and that is the only question before us.

At the hearing on the motion to suppress, Sergeant Robert Casto testified that Miller was arrested about 3 a.m. on April 6, 1971. He says that Miller was intoxicated when arrested and that he was placed in the city jail at Rogers. He says that he did not attempt to question Miller when he was first taken into custody, but that ábout 2:00 p.m. on April 6, after Miller had become sober, he did question him concerning the theft of the automobile. He says that he told Miller that Pion had implicated him in the theft of the automobile, and that after advising Miller as to his constitutional rights, Miller voluntarily waived his rights and voluntarily gave him a detailed statement as to how he and Pion had taken the automobile and abandoned it near Seligman, Missouri. He says that he wrote Miller’s statement out in longhand and had Miller check it for accuracy. He says that he then copied the statement on a typewriter and again had Miller check it for accuracy before signing it. He testified that after Miller’s constitutional rights had been read and explained to him, Miller voluntarily signed an acknowledgment and waiver of his rights, and signed the typewritten statement he had made to the officer. Patrolman Troy McGuire confirmed Sergeant Casto’s testimony.

Appellant Miller testified at the hearing on the motion to suppress. He testified that he was arrested about 3:50 a.m. and placed in jail. He says that he was not in-, terrogated at that time and that his constitutional rights were not explained to him. He says that about six or seven hours later he was taken out of his jail cell and interrogated by the officers. He says that he was given no water before intrrogadon and was only given a roll and some coffee for breakfast. He testified that he has a problem with alcohol and had been drinking heavily prior to his arrest. On direct examination he testified, in part, as follows:

"Q. When they interrogated you, did they warn you of your rights before the interrogation started?
A. I’m not really too sure about it. I can’t really truthfully answer that.
Q. When you made your statement, did the police officer read it back to you?
A. No, they did not. *
Q. Did he let you read it?
A. I didn’t read it.
Q. What did he tell you to do?
A. I went back to that cell.
Q. Did he let you sign it?
A. I signed it, yes.
Q. But he-didn’t let you read it?
A. I didn’t read it.”

On cross-examination Mr. Miller testified that he had been drinking and does not remember whether his constitutional rights were explained to him or not. He admitted the genuineness of his signature on the written waiver as well as the statement, but testified that he does not remember of ever seeing the waiver form. Miller testified that he was familiar with his constitutional rights and had them explained to him before. But, he testified that he would not have been able to read the instruments he signed even if he had examined them. The overall substance of Mr. Miller’s testimony as to his signed waiver and statement, is to the effect that he was too drunk to read and too drunk to know what was going on at the time he signed the waiver and statement.

According to Mr. Miller’s testimony, he remembered that the police officers advised him that Pion had made a statement involving him. He then testified as follows:

“Q. Did they make any promises to you?
A. They said if I didn’t do something, it was on me — the whole thing.
Q. If you didn’t do something, it was on you?
A. (The witness nods affirmatively.)
Q. Did you feel that you were, compelled to make a statement after they told you of Peter J. Pion’s statement?
A. Yes.”

Miller again testified that he did not remember ever reading the statement before the hearing, but even if he had read it on the date it was signed, it would have made no difference because he would not have been able to understand it. He then read -the statement into the record as follows:

“ ‘On the 3rd of April, 1971, at approximately 9:00 p.m. Pete Pion and I were in■ Springdale when my car broke down at the Carriage Inn. We started walking back to Rogers when we saw a red Mustang parked at the,Smokehouse.Cafe. I hid in some bushes while Pion got the car,, started and picked me up. We used side roads to keep off the highway and someplace southeast of Rogers, Piori run the car in a ditch but we got out and drove to Seligman, Missouri, where'we had a flat on the front tire. We then parked the car, parked the Mustang,, and took a white. Ford- Ranchero that was parked across the railroad tracks from Highway 37. Pion and I hot-wired this vehicle and drove back to Rogers, Arkansas. Pion drove the Ranchero out Highway 12 east of Rogers and parked it on a dirt road. I followed him in a green station wagon I borrowed from Cecil Harris and picked him up and came back to Rogers.’ ”

Miller then testified as follows:

“Q. Mr. Miller, is that the first time you’ve ever read that statement?
A. It is.
Q. Do you understand it? Did you understand what you just now read?
A. I understand it, but I don’t believe — .
Q. Is that basically the same thing that you told Mr. Casto on the morning of April 6th?
A. About that.”

We are of the opinion that the trial court did not err in denying Miller’s motion to suppress. Miller had no difficulty remembering that he was placed in a single cell at the Rogers City Jail and was only furnished a roll and coffee for breakfast. He remembers that he had no water to drink but does not say he requested water or that it was denied him. He does not deny that he made the statement attributed to him by Officer Casto. He admits the genuineness of his signatures on both the waiver and the statement. He simply says that he did not read the instruments he signed and would not have understood them had he read them. The signatures on both instruments are clear and legible.

We conclude, therefore, that the trial court did not err in holding that the “statement was voluntarily and knowledgably given after the defendant was advised of his rights,” and we hold that the trial court did not err in denying the motion to suppress and in admitting the statement into evidence.

The judgment is affirmed.


author: Frank Holt, Justice.

text:
    Ernest H. RAY v. STATE of Arkansas
    5634
    473 S.W. 2d 161
    Opinion delivered November 29, 1971

      Skillman ir Furrow, for appellant.

      Ray Thornton, Attorney General, James A. Neal, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury reduced the first degree murder charge against, appellant by finding him guilty of manslaughter and assessed his punishment at two years in the State Penitentiary. For reversal of the judgment upon that verdict appellant first contends that the trial court erred in permitting the testimony of a 13-year-old witness. Appellant asserts the witness was, not qualified because of age and lack of understanding of the meaning of an oath.

In a civil action a child below 10 years of age is never a competent witness. This is true by common law and by statute. Ark. Stat. Ann. § 28-601 (Repl. 1962). In criminal cases, however, we have placed no limitation on the age of a child witness. Payne v. State, 177 Ark. 413, 6 S. W. 2d 832 (1928). We have, however, consistently held that competency requires that certain qualifications be met. In Batchelor v. State, 217 Ark. 340, 230 S. W. 2d 23 (1950) we reiterated:

<<# # # child-witness, when offered, has capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and if in the exercise of a sound discretion the trial court determines that at the time the transaction under investigation occurred the proposed witness was able to receive accurate impressions and to retain them to such an extent that when testifying the capacity existed to transmit to fact-finders a reasonable statement of what was seen, felt or heard, — then, on appeal, the Court’s action in holding the witness to be qualified will not be reversed.”

Also, we have consistently recognized that the trial court is allowed wide discretion in a determination of the competency of a child witness and on appeal we do not disturb the trial court’s discretion in the absence of manifest error or clear abuse. Harris v. State, 238 Ark. 780, 384 S. W. 2d 477 (1964).

In the case at bar, the child witness was IB years of age and a student in the local junior high school. He testified he knew that the meaning and solemnity of an oath required telling the truth; that he attended church and Sunday school where he was taught, as in his home, to tell the truth. He testified at first that he did not know what would happen to him if he did not tell the truth. However, he then said that he had been punished for falsehoods and that he recognized that if he were untruthful as a witness that he would be punished and that as a witness he would be truthful. The witness was then permitted to testify that he was acquainted with the appellant, and identified him as well as appellant’s co-defendant. He related that he was in appellant’s place of business on the day the shooting occurred. He stated that he observed appellant go to the back of his store, get a shotgun and then proceed across the street where the deceased was shot. He heard appellant’s wife tell a codefendant to try to stop him. He also heard the appellant tell the deceased and two others to remove picket signs which they had placed upon posts; that the decedent said he did not put them up and he was not going to take them down; that appellant pointed the gun at decedent who attempted to push aside the gun, at which time the appellant shot him; that the decedent was unarmed and made no aggressive act toward appellant; and that appellant shot decedent after he (decedent) “had taken his hand away from the gun.” On cross-examination it was elicited that the child-witness had previously said in a statement that the shotgun went off at the time the decedent was trying to take it away from appellant.

In the circumstances, we are of the view that the child-witness demonstrated sufficient capacity to understand the solemnity of an oath, the obligation it imposed, and that this witness was sufficiently able to receive accurate impressions of' the transactions he observed and retain and relate them to the jury in a reasonably coherent statement. Therefore, we hold that no error was manifest and the trial court did not abuse its discretion in allowing this witness to testify.

Appellant next contends that the trial court erred in not granting appellant’s motion "for a directed verdict against murder in the first degree as a matter of law.” The State adduced evidence that ten days previous to the shooting appellant had threatened "to get six of them” (pickets who had picketed appellant’s business for almost a month) and had said that he had a shotgun which "would hold six shots;” that when appellant went across the street armed with a shotgun, he threatened to kill one of the pickets, prevented decedent from leaving, and then shot him without any just cause. Therefore, the State contends that this evidence, when viewed most favorably to the appellee, justified the instruction. However, a sufficient answer to appellant’s contention is that he was not prejudiced by the instruction on first degree murder since the jury acquitted him of that charge by reducing it to manslaughter. Brewer v. State, 251 Ark. 470 S. W. 2d 581 (1971). Accordingly, we find no merit in this contention.

The appellant next contends that the court erred in refusing appellant’s proffered instruction to the effect: "Acts committed by misfortune or accident shall not be deemed criminal, when it appears there was no evil design, intention, or culpable negligence.” Ark. Stat. Ann. § 41-116 (Repl. 1964). Appellant asserts that the instruction is justified because appellant testified that he did not intend to kill the deceased and so stated to the investigating officer who verified this statement. Appellant and his witnesses also testified that the deceased grabbed the weapon with both hands and was pulling on it and wrestling with appellant when the gun was discharged. Appellant asserted that he merely took the weapon with him to force the pickets to remove the signs. We agree with the trial court that the evidence did not justify this instruction. It will be noted that this instruction is justified whenever it appears there was no evil design, intent, or culpable negligence. When we view appellant’s evidence in the light most favorable to him, we cannot say that it eliminates appellant’s culpable negligence in the handling and discharging of the weapon after securing it and walking across the street with the announced purpose to use it to force removal of the picket signs. In other words, the evidence is contrary to this instruction which defines misfortune or accident. Brewer v. State, supra.

Appellant also asserts that the court erred in refusing to give appellant’s instruction which, in effect, told the jury that it could acquit appellant if the jury found that the deceased “did in fact pull upon the barrel of the shotgun held by [appellant] causing same to discharge, resulting in [decedent’s] injury and death.” We find no merit in this contention. This instruction singles out a specific issue for the jury to acquit the appellant, should it find that deceased pulled upon the barrel of the weapon. Walker v. State, 239 Ark. 172, 388 S. W. 2d 13 (1965); Price v. State, 114 Ark. 398, 170 S. W. 235 (1914); Jackson v. State, 103 Ark. 21, 145 S. W. 559 (1912). Therefore, there was no error in the refusal of this requested instruction.

Finding no errors, the judgment is affirmed.

Affirmed.

Fogleman, J., not participating.


text:
    Margaret S. Berry CARTER v. Maupin CUMMINGS, Judge
    5-5636
    473 S.W. 2d 437
    Opinion delivered December 6, 1971

      Bill Thompson, for Petitioner.

      Jones ir Segers, for Respondent.
   Carleton Harris, Chief Justice.

Margaret S. Berry Carter, petitioner herein, a resident of Sebastian County, was served with a summons in Washington County on January 12, 1971, a complaint having been filed by Margaret M. Carter in the Circuit Court of that county on the same date. Mrs. Margaret M. Carter, a resident of Washington County, sought judgment against petitioner on a $50,000 promissory note. Thereafter, petitioner filed her motion to quash the service, the motion being based on a contention that petitioner had been lured into Washington County by fraud, deceit, and artifice for the sole purpose of serving a summons on her in that jurisdiction. A hearing was held, at which time several witnesses testified, and at the conclusion of the hearing, the court overruled the motion to quash, holding that petitioner had failed by a preponderance of the evidence to show either artifice or fraud sufficient to justify the quashing of the service. Petitioner seeks a Writ of Prohibition in this court to prohibit the Washington County Circuit Court from proceeding further.

Petitioner is the present wife of Larry Carter, and Margaret M. Carter, who instituted this suit, is the former wife of Larry Carter. Petitioner testified that about a week before January 12, Margaret Carter called her long distance and asked whether petitioner was going to pay the note; she was informed that the present Mrs. Carter would not pay it. According to petitioner, Margaret Carter then advised that she (Margaret) did not care to do anything about it at this time and she told the petitioner “Don’t worry about it”. A few nights later Margaret Carter again called and talked to Mr. Carter. Mr. Carter testified that his ex-wife advised that the braces for their baby son, Benjamin, were ready, and inquired if he would take Benjamin to the doctor and pay for the braces; that it would be necessary for him to take the baby in order that the braces could be paid for at the same time they were fitted. A couple of days later, according to the testimony, Margaret Carter again called the petitioner and asked if she would accompany her husband to Fayetteville; that she (Margaret) had to be out of town; Margaret’s baby sitter had to shop for her sister’s wedding and wanted the morning off, and Margaret would like for the petitioner to help Larry in looking after the second oldest child, Brennan. Petitioner agreed, and the two went to Fayetteville, but found that Brennan had gone home with his grandmother the previous' night, and they then took the youngest child to the doctor’s office to get the braces fitted. She was served with a summons while she was in the office. Margaret Carter’s version is somewhat different. She stated that she called her ex-husband because she did not have the $118.58 to pay the doctor for the braces; that she requested the ex-husband to pay this amount, and he replied that he would pay it if he knew that the braces were good, and “not plastic braces”. Margaret replied that she was willing for him to take the child to the brace man and the doctor. She said that since she was going to be out of town, she asked petitioner to take care of Brennan on that date, but Margaret Carter steadfastly maintained that the idea of Carter and petitioner making the trip to Fayetteville was entirely Mr. Carter’s idea.

In Robinson v. Bossinger, 195 Ark. 445, 112 S. W. 2d 637, we quoted from § 17 of the chapter on Process in 21 R. C. L., p. 1275, as follows:

“If a person is induced by artifices or fraud to come within the jurisdiction of a court for the purpose of obtaining service of process on him, and process in an action brought against him in such court is there served, it is an abuse of legal process and the fraud being shown, the court will, on motion, set aside the service.”

This is the contention of petitioner, and her basis for seeking the Writ of Prohibition.

We do not agree that prohibition is the proper remedy, and we could not better express our views than to quote from Robinson v. Means, Judge, 192 Ark. 816, 95 S. W. 2d 98. There, after stating that the question was one of fact, and with language entirely apropos to the present litigation, we said:

“In cases of that kind wherein jurisdiction depends upon the presentation or establishment of certain facts, then that question must be decided by the trial court, and even though he should decide wrong we are not at liberty to correct his error except on appeal. Finley v. Moose, 74 Ark. 217, 85 S. W. 238.

We said in Arkansas Democrat v. Means, 190 Ark. 948, 82 S. W. (2d) 256: 'Where the court has jurisdiction over the subject matter, and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error, and prohibition is not the proper remedy.’ Order of Railway Conductors of America v. Bandy, 177 Ark. 694, 8 S. W. 2d 448. * * *

Probably in most instances the facts upon which jurisdiction may rest or be determined are controverted. In most other instances they might be controverted, that is to say, there is the possibility of the facts being disputed. In either event the matter is one that must be determined by the trial court, and in the proper exercise of the trial court’s functions we do not interfere by prohibition. We might differ most seriously from the view taken by the trial court, but if we think the trial court erred, we can correct that only upon appeal.”

Appellant contends that she has no adequate remedy at law for she has equitable defenses going to the merits of the complaint which rwould entitle her to be heard in Chancery, but if she seeks this relief by way of a motion to transfer, she may be held to have waived her objections to the unlawful service; that because of fixed opinions of the citizens of Washington County, she would be entitled to seek a change of venue, but again, such a course might operate as a waiver of the objections to the unlawful service. Still further, she might find herself in the same situation if she filed a counterclaim. Similar arguments have been made in other cases; for instance in Robinson v. Means, Judge, supra, it was asserted that if the writ were not granted, and petitioners were forced to answer, and upon an adverse decision, appeal to this court, they would thereby enter their appearance, even though this court should find the service not good.

Those matters are not presently before us, and therefore require no discussion, but our cases are very clear that where the court has jurisdiction over the subject-matter and the question of the jurisdiction of the person depends upon some fact to be determined by the court, prohibition is not the proper remedy.

Writ denied.

      Margaret Carter testified that she went to Little Rock to see her brother sworn into the Legislature.


text:
    Jake TAYLOR, Sr. v. Claretha VICK et al
    5-5624
    473 S.W. 2d 902
    Substitute opinion delivered December 6, 1971
    [Rehearing denied January 10, 1972.]

      Carneal Warfield, for appellant.

      Odell Carter and Marion S. Gill, for appellees.
   George Rose Smith, Justice.

Annie Taylor, the appellant’s wife, died testate, leaving three pieces of real property. A 30-acre tract and the decedent’s half interest in a 120-acre tract were specifically devised to the appellant for life, with remainder to the appellees, the testatrix’s son and niece. The third tract, comprising seven city lots of apparently modest value, was not specifically devised but passed to the appellee Claretha Vick as residuary devisee.

The main issue here is one of contribution. The appellant, as administrator of the estate, collected rents amounting to about $2,000. That money was used to pay taxes on the lands and to pay a U. S. Government claim for the refund of $1,572.60 erroneously paid to the testatrix as Social Security benefits. In the probate court the appellant admitted his liability, as life tenant, for the taxes upon the first two tracts, but he sought contribution from the appellees for the other payments, on the theory that the Probate Code provides for contribution in a situation like this one, where property specifically devised is used for the payment of claims. This appeal is from an order denying the claim for contribution.

We think the appellant’s position to be correct. We are not here concerned either with what the rule was. before the enactment of the Probate Code or with what the rule might be under that Code in cases of intestacy. We must accordingly reject the appellees’ arguments, for the Probate Code sets forth a new rule with respect to contribution in cases where the decedent left a will.

The Code provides that the shares of the distributees shall abate, for the payment of claims, in the following order: (1) Property not disposed of by the will; (2) property devised to the residuary devisee; (3) [not pertinent here]; (4) property specifically devised. Ark. Stat. Ann. § 62-2903 (Supp. 1969). The Code then provides for contribution as a method of putting the specified order of abatement into effect, where that order was not followed in the payment of claims. Section 62-2904.

Here there were three devises: A specific devise of a life estate to the appellant, a specific devise of remainders to the appellees, and a residuary devise of the city lots to Claretha Vick. The rents collected by the administrator actually constituted part of the appellant’s life estate. Therefore, since that property, specifically devised, was used in the payment of claims, the appellant is entitled to demand that the residuary devise be first completely abated and that the recipients of the other specific devises be required to contribute “according to their respective interests,” in the language of the statute. The cause will be remanded for a determination of the amounts to be contributed.

Secondarily, the appellant asks that he and his attorney be allowed fees for their services. The allowance of such fees, however, is discretionary, and in the absence of any testimony touching upon the services of either the administrator or his attorney, we cannot say that the probate court erred.

Affirmed in part; reversed in part.