author: Paul Ward, Associate Justice.

text:
    Freeman v. State.
    5114
    385 S. W. 2d 156
    Opinion delivered December 14, 1964.
    [Rehearing denied January 18, 1965.]

      Harold L. Hall, for appellant.

      Bruce Bennett, Attorney General, By: Beryl Anthony, Jr., Assitant Attorney General, for appellee.
   Paul Ward, Associate Justice.

During a fight at the Hollywood Club in North Little Rock on the night of September 16, 1962 Ted B. Freeman (appellant herein) allegedly shot and killed Billy McKim and shot and wounded Buck Berryman. Appellant was charged with the crime of murder in the second degree, was convicted as charged, and was sentenced to 10 years in the state penitentiary. Appellant now prosecutes this appeal, alleging several specified grounds for.a reversal.

A study of the testimony fails to reveal clearly the exact details of just what happened on the night in question. Appellant, who ran the Am Yets Club in North Little Rock at night time, closed that club at about 2:30 a.m. and went to the Hollywood Club to return some brandy which he had borrowed. With him at the time was his assistant, Mildred Gill, who was carrying a large purse which contained the club money and also a pistol which appellant had handed to her as they left. Appellant’s version of what happened was substantially as follows : I entered the Hollywood Club and sat down at a table with some other people; Buck Berryman came over to our table and knocked me to the floor and started kicking me; then some other people also started kicking me and someone hit me with a piece of iron pipe; then Mil-' dred handed me the pistol, and when Buck jumped on me the gun' went off; when some one hit me on the hand I lost my gun — I fired only one time; I don’t know whom the shot hit; they took me to the hospital where I stayed fifteen or sixteen days — there were eleven lacerations on my head. We intended to have a drink at the Hollywood Club and then go home; I fired the shot because I was in fear of my life. Mildred Gill corroborated the testimony of appellant. She also testified she saw Billy McKim (the deceased) kick appellant, but she didn’t know who shot McKim.

Other witnesses gave a different version of the part appellant played in the melee. Russell Patterson (the operator of the Hollywood Club) testified in substance: I broke up the fight between appellant and Berryman, and told P. D. Nash to take Berryman out; while they were walking toward the door I was talking to McKim; then I heard a shot and thought Berryman was shot in the stomach'; then someone fired two more shots— it looked like appellant fired the third shot right at McKim, but Berryman was also advancing toward appellant at the time; I then hit appellant on the head three or four times trying to knock the gun out of his hand; someone hollered and appellant jumped out of the window; I don’t know what happened to the gun after I knocked it out of appellant’s hand. Buck Berryman testified in substance : I went over to the table where appellant was sitting in an attempt to settle our old troubles; when it appeared appellant was going going for something in his pocket I pushed him out of his chair; then P. D. Nash and I started to leave when I felt the shot hit me in the hack; 1 turned and saw another shot — I saw the flame from the gun and I made a run for him (presumably meaning appellant) and we both went down. P. D. Nash corroborated Berryman’s statement, but he made it clear that he saw appellant with the gun and that the gun “went bang, bang, bang” — three or four times, and that at the same time he heard McKim say he had been shot. He also testified that after the shooting he saw Russell Patterson trying to take the gun away from appellant.

In addition there was testimony showing that ill feelings had existed for some time between appellant and Buck Berryman, and that appellant had previously made threats to harm or kill Berryman.

In view of the above we are unwilling to say, as a matter of law, that there was no substantial evidence to support the jury’s verdict. On appeal we must view the evidence in the light most favorable to the state. Allgood v. State, 206 Ark. 699, 177 S.W. 2d 928. There are, however, other points relied on by appellant which we now examine.

One. Points 1, 2, 3, and 4 raised by appellant are similar and may be discussed together. The court quite properly, we think, allowed the state to show Berryman and appellant had a fight sometime during the past six months. The court allowed Berryman to testify relative to threats by appellant to kill him. The court alloAved Nash to testify appellant said he Avas going to kill Berry-man. The court also allorved Laura Wilkins Neal to testify that appellant shoAved her a gun and said he Avas going to shoot Berryman if he “ever got into it Avith him again”. The trouble betAveen appellant and Berryman and the threats made by appellant were all admissible to shoAv who Avas the agressor and also the motive or ill Avill on the part of appellant. Crowe v. State, 178 Ark. 1121, 13 S. W. 2d 606 and McGrow v. State, 184 Ark. 342, 42 S.W. 2d 373. We see no merit in appellant’s contention that the incidents mentioned Avere too remote in time to be admissible in evidence. The fight occurred sometime within six months before the shooting. The threats occurred at approximately the same time, and they also appeared to be of a continuing nature.

Two. There Avas no reversible error in alloAving three empty shells to be introduced in evidence. They Avere found in appellant’s gun soon after the shooting, and there Avas no eAÚdence to show the gun Avas tampered Avith in the meantime. Appellant said he fired only one time and the empty shells tended to confirm other testimony by the state that more than one shot was fired.

Three. Them is no merit in the contention the court committed reversible error in punishing Buddy Cook for contempt in the presence of the jury. Cook, who had been subpoenaed as a witness, failed to appear as ordered. It does not appear from the record that the jury even lcneAV by Avhich side he had been subpoenaed, and certainly it does not appear that the matter Avas in any way prejudicial to appellant.

Four. Appellant objects to íavo statements made by the deputy prosecuting attorney in his address to the jury. We have examined the record carefully and are convinced that the. statements complained of were mere expressions of his opinion. The matter was brought to the attention of the court and the jury was admonished to be guided only by the evidence. In such matters.much is and must be left to the sound discretion of the trial judge: Reynolds v. State, 220 Ark. 188, 246 S.W. 2d 724.

Five. Finally, ajjpellant argues that the trial court erred in refusing to grant a new trial on newly discovered evidence. It is stated that Ed Gatewood was intimated by the state’s attorney and therefore kept from making ‘ ‘ any statement other than what was in the statement already made by him”. No error is shown because-no conclusive proof is offered that the witness was intimidated, and also there is no showing what testimony he would have given if he had testified. It is also stated that appellant had discovered another witness, Glynn Deese, who would testify that he saw the shooting and five or six men were beating the defendant. We see no reversible error because no due diligence is shown and because this testimony was merely cumulative, and tended- only to impeach other testimony. Such testimony is not grounds for a new trial. Jones v. State, 196 Ark. 176, 116 S.W. 2d 610 and Therman v. State, 205 Ark. 376, 168 S.W.2d 833.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Seay v. Seay.
    5-3402
    384 S. W. 2d 466
    Opinion delivered December 14, 1964.

      Clark, Clark S Clark, for appellant.
    No brief filed for Appellee.
   Sam Robinson, Associate Justice.

This is an appeal from the action of the Chancellor in denying appellant’s petition that a life estate be declared terminated.

On the 19th day of December, 1960, Floyd Gr. Seay and Mary Delon Seay were divorced in Wichita County, Texas. Several children had been born of the marriage. In connection with the divorce case, and pursuant to the decree therein, Floyd Gr. Seay conveyed to Mary Wilma Seay, a life estate in about 79 acres of land with the remainder to six children of the parties. There is a house on the land and it is located in Faulkner County, Arkansas. The deed from Seay to Mrs. Seay and the children is as follows:

“KNOW ALL MEN BY THESE PRESENTS:
£ £ That I, Floyd Gr. Seay, of lawful age and unmarried, for and in consideration of the sum of Ten Dollars ($10.00) and other consideration to me in hand paid by Mary Wilma Seay, Floyd Wayne Seay, Morris Delon Seay, James L. Seay, Phil E. Seay, Mark E. Seay, and Joseph P. Seay, the receipt of which is hereby acknowleged, do hereby grant, bargain, sell and convey unto the said Mary Wilma Seay, for and during her natural life, with remainder therein after her death unto the said Floyd Wayne Seay, Mark E. Seay, and Joseph P. Seay, and unto the heirs and assigns of said remaindermen forever, the following described lands situated in Faulkner County,. Arkansas, to-wit:
“The west one-half (W%) of the southwest quarter (SW %) of Section Seventeen (17) Township Four (4) North, Bange Fourteen (14) West, 80 acres, more or less.
“To have and to hold the same unto the said Mary Wilma Seay, for and during her natural life, with remainder therein after her death unto the said Floyd Wayne Seay, Morris Delon Seay, James L. Seay, Phil E. Seay, and Joseph P. Seay, and’ unto the heirs and assigns of said remaindermen forever, with all appurtenances thereunto belonging. And I do hereby covenant with said grantees that I Avill forever warrant and defend the title to said lands against all lawful claims Avhatever.
“Said grantee Mary Wilma Seay shall, during the life estate hereby vested in her, keep all taxes and special assessments coming due against said lands paid, and shall keep all improvements upon said property continuously and adequately covered by fire and extended coverage insurance for the benefit of herself and the remaindermen named herein, and upon her failure to pay said taxes and special assessments, and/or her failure to keep the aforesaid insurance in force, then her life estate shall terminate and title to said lands, shall vest immediately in the aforesaid remaindermen.”

On March 18, 1961, Katie Sellers, Mother of Mrs. Seay, filed a petition in the Probate Court of Faulkner County, Arkansas, for the appointment of a guardian for Mrs. Seay, alleging her to be incompetent. On March 25, 1961, letters of guardianship Avere issued naming Katie Sellers as guardian. On December 3, 1963, the children, Floyd Wayne Seay, Morris Delon Seay, adults, and James L. Seay, Phil E. Seay, Mark E. Seay and Joseph P. Seay, minors, by their next friend and Father, Floyd Gr. Seay, as remaindermen, filed the case at bar in the Faulkner County Chancery Court. The Complaint alleges that Mrs. Mary Wilma Seay has failed to pay the taxes and has failed to keep insurance paid as required by the deed conveying to her a life- estate. The prayer is that the court make a finding that the life estate has terminated by reason of the life tenant’s failure to pay the insurance and taxes as required by provisions of the deed. The trial court denied the prayer of the complaint and the remaindermen have appealed.

The evidence shows that the life tenant has failed to pay the taxes and has failed to keep the insurance on the house in force. It appears that she is incompetent and perhaps will never be able to pay the taxes and insurance premiums. The house is vacant, and attempts to rent it have been unsuccessful because there is no water available.

The language in the deed is clear and explicit. The conveyance to Mrs. Seay was upon a conditional limitation. She took a life estate determinable upon the failure to comply with the. provisions of the conveyance, that is, the failure to keep the taxes paid and the insurance in force. “An estate on special limitation is one which, by its terms, is to terminate automatically if a specified event occurs before the time at which the estate ■would otherwise normally terminate.” Tiffany Real Property, Third Edition, Yol. 1, Sec. 217. “If a condition subsequent be followed by a limitation over in case the condition is not complied with, it is termed a ‘conditional limitation,’ and takes effect without any entry or claim, and no act is necessary to vest the estate in the party to whom it is limited.” Thompson on Real Property, Yol. 4, Sec. 2165.

“A conditional limitation is therefore of a mixed nature, partaking both of a condition and of a limitation. It partakes of the nature of a condition because it defeats the estate previously limited, and of .a limitation because, on the happening of the contingency, the estate passes to the person having the next expectant interest, without entry or claim.” 19 Am. Jur. 557.

It is said in John v. Lane, 199 Ark. 740, 135 S.W. 2d 853: “In other words, the breach of a condition subsequent merely gives the grantor or his heirs the right to secure a revesting of the former estate, so that, if no steps are taken to secure a revesting, the estate granted remains as before, while the happening of the event described [as] a conditional limitation ipso facto determines the estate.”

In the case, at bar it makes no difference whether the provision in the deed requiring- the life tenant to pay the taxes and insurance premiums is a condition subsequent, in which event the next taker would have to take affirmative action to terminate the life estate, or whether it is a limitation, in which case the life tenancy expires ipso facto upon the failure of the life tenant to comply with the provision of the limitation. This is true because, in the case at bar, those who have the next expectant interest have taken action to have the fee vested in them.

Reversed with directions to enter a decree not inconsistent therewith.


author: Jim Johnson, Associate Justice.

text:
    McMahan v. Carroll County.
    5-3407
    384 S. W. 2d 488
    Opinion delivered December 14, 1964.

      M. D. Anglin, Len Jones, for appellant.

      J. E. Simpson, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a jury verdict awarding no damages to a landowner for land taken in a condemnation order entered by the Carroll County Court.

Appellants Blake McMahan, Faye McMahan and Keith McMahan filed a claim in county court against appellee Carroll County alleging $5,000 damages as the result of the condemnation order which took some eleven acres through a 366-acre tract of land owned by appellants. The claim was denied by the county court and appellants appealed to Carroll Circuit Court, Eastern District. On appeal the claim was -tried to a jury which returned a form verdict finding no damages to the land. From the judgment entered on the verdict comes this appeal.

For reversal appellants rely on seven points but fail to abstract the record in support of the points urged. We decline to dismiss this appeal for failure to properly abstract the record as required by our Rule 9 (e) for the reason that appellee Carroll County voluntarily supplied the bare essentials -of the record. From the deficient abstract we find only one point sufficiently presented for our consideration. Appellants contend that the verdict was not in keeping with due process of law, apparently relying upon Art. 2, § 22 of the Constitution of Arkansas: “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”

The record reveals that the appellee county interposed a defense that.appellants’ property was enhanced by the paving of the road and such enhancement was equal to or greater than the value of the land taken or severance damages'to the remainder of appellants’ land. Thus we come to the question: Can enhancement be equated with just compensation? This question has been raised before and has been answered in the affirmative by past decisions of this court with respect to condemnation by public authority.

Article 12, § 9 of the Arkansas Constitution states: “No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.” This provision does not apply to condemnation by public authority. Paragould v. Milner, 114 Ark. 334, 170 S.W. 78; Cannon v. Felsenthal, 180 Ark. 1075, 24 S.W. 2d 856.

We have repeatedly held that where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits (see Cullum v. Van Buren County, 223 Ark. 525, 267 S.W. 2d 14, aiid cases there cited), but “the benefit which will be thus considered must be those which are local, peculiar, and special to the owner’s land, who,has been required to yield a portion pro bono publico.” Lazenby v. Arkansas State Highway Commission, 231 Ark. 601, 331 S.W. 2d 705; City of Paragould v. Milner, supra; Ross v. Clark County, 185 Ark. 1, 45 S.W. 2d 31; Washington County v. Day, 196 Ark. 147, 116 S.W. 2d 1051.

The condemnor properly assumed the burden of proving appellants suffered no damage by reason of enhancement, and it has not been demonstrated to us by ajjpellantK that the trial court failed to correctly instruct the jury on the applicable law. A competent witness testified that in his opinion appellants’ land was worth as much or more after the taking as before the taking. Three other witnesses for appellee, real estate salesmen and brokers, testified that appellants’ land was worth fonr to six thousand dollars more after the taking and construction of the road.. The new road bisects some of appellants’ pasture. The county, however, raised the level of the highway somewhat, built an underpass and put in drainage to minimize erosion at appellants’ request. The record is clear that appellants’ land before the taking was two and one-half miles from a paved road, and that after the taking a paved road ran within several hundred yards of appellants’ home. While this new paved highway may be said to be a benefit to the public generally, we are qf the view that as to appellants’ land this is also a local, peculiar and special benefit. See Wright, Ark. Eminent Domain Digest, § 7.1, p. 189; Cate v. Crowford County, 176 Ark. 873, 45 S.W. 2d 516. Thus it cannot be said that the jury did not have before it substantial evidence to support its finding that appellants had received just compensation in the nature of enhancement to their land.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Van Houten v. Better Health Ins. Assn. of America.
    5-3384
    384 S. W. 2d 465
    Opinion delivered December 14, 1964.

      Cecil A. Tedder, Jr., for appellant.

      Same Montgomery, for appellee.
   Frank Holt, Associate Justice.

The appellant brought this action against the appellee to recover $4,739.28 for benefits allegedly due on three family group insurance contracts issued by the appellee. The appellee answered by a general denial. The jury rendered its verdict for the appellee. From a judgment entered accordingly the appellant brings this appeal.'

The policies in question, containing the applications for insurance, were introduced into evidence by the appellant. Paragraph nine of the application provides that any falsity in the application barred recovery “if made with the intent to deceive”. The applications each disclosed that Mr. Van Houten had been hospitalized once, Mrs. Van Houten twice, and their daughter once. According to their family doctor, they had received hospital attention approximately eighty-five times from 1953 to 1962. The policies were issued in March, May and June, 1962. When a claim was filed by appellant soon thereafter, the policies were then canceled and a refund of the premium offered because of the failure to make a full disclosure of the medical history. According to appellant, a full disclosure was made and the agent failed to note the medical history.

For reversal the appellant first contends that the court erred in permitting the appellee to assert the affirmative defense of fraud since it was not specifically pleaded by the appellee in its answer. Appellee reserved in its answer the right to' amend, however, this was not done.

The general rule is that fraud, as an affirmative defense, must be specifically pleaded by the party claiming it. Bridges v. Harold L. Schaefer, Inc., 207 Ark. 122, 179 S.W. 2d 176. However, when a case is tried upon an issue not responsive to the pleadings and there is testimony upon that issue without objection, then we treat the answer as being amended to conform to the proof and the scope or sufficiency of the answer cannot be questioned on appeal. Parker v. Jones, 221 Ark. 378, 253 S.W. 2d 342; Farmers Union Mutual Ins. Co., v. Wyman, 221 Ark. 1, 251 S.W. 2d 819; Abel of Ark. v. Richards, 236 Ark. 281, 365 S.W. 2d 705, Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720.

In the case at bar the appellant not only failed to make timely objections to some of the evidence offered on the issue of fraud, more significantly, the appellant himself elicited evidence on the subject of fraud from his own witness, Mrs. Yan Houten, to the effect that she was aware of the provisions in paragraph nine. On cross-examination she admitted there was a failure to disclose that she had been released from the hospital only two days before one of the applications was completed. Also, another one of his witnesses, Mr. Phillips, responded to appellant’s query that in his opinion the insurance policies were procured under conditions intending to deceive the appellee insurance company. Further, the appellant offered and the court gave Instruction No. 6 relating to the issue of fraud. Therefore, we find no merit in appellant’s contention that the issue of fraud was not affirmatively asserted in the answer. Since the appellant elicited evidence himself on that subject and also requested and was given an instruction on the issue of fraud, we treat the answer as being amended to conform to the proof.

Appellant next argues that the court erred in giving appellee’s requested Instruction No. 6. Since appellant has failed to abstract the instruction, we cannot consider this alleged error on appeal. Wilson-Ward Co., v. Fleeman, 169 Ark. 38, 272 S.W. 853; Sloan v. Ayers, 209 Ark. 119, 189 S. W. 2d 653. However, the questioned instruction is based upon Ark. Stat. Ann. § 66-3208 (Supp. 1963) and under the facts in this case correctly instructed the jury on the issue of fraud according to appellee’s theory of the case.

Appellant’s final contention is that the court erred in refusing, to grant appellant’s motion to amend his pleadings to conform.to the proof. Appellant’s proof established a lesser sum than was alleged in his complaint. We perceive no prejudicial error since the jury-found appellant was entitled to no recovery.

The judgment is affirmed.


author: Carlbton Haréis, Chief Justice.

text:
    Holland v. Ratliff.
    5-3409
    384 S. W. 2d 950
    Opinion delivered December 21, 1964.

      John Lofton, Jr., Ben McCray, for appellant.

      Robert N. Hardin, O. Wendell Hall, Louis Tarlowski, for appellee.
   Carlbton Haréis, Chief Justice.

This litigation relates to an award for' damages sustained by T. J. Ratliff, appellee herein, when Ratliff’s automobile was allegedly struck by one driven by Allen Holland, appellant herein. In his complaint, Ratliff alleged that his car was struck from the rear by one driven by appellant, causing the Ratliff vehicle to overturn, and resulting in the injuries to appellee complained of; there were further allegations of intoxication and willful and wanton misconduct on the part of Holland, and the complaint sought punitive damages. On trial, the jury returned a verdict in favor of appellee in the sum of $15,000.00, and from the judgment entered in accordance therewith, appellant brings this appeal. For reversal, appellant asserts that the court erred in giving appellee’s Instructions Nos. 9 and 10 on the measure of damages, erred in permitting appellee to intro-’ duce a mortality table showing appellee’s life expectancy, and erred in failing to instruct the jury that there could be no award of punitive damages. We proceed to a discussion of the points mentioned.

Instruction No. 9 set out the various elements of damage which the jury might consider in fixing an award, if any, for appellee. As listed in the instruction, these were as follows:

‘ ‘ 1. The nature, extent, duration, and permanency of his injury.
2. The reasonable expense of necessary medical care, treatment and services received, and the present value of the -reasonable expenses of medical care, treatment and services reasonably certain to be received in the future.
3. The pain, suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future.
4. The value of time lost and the present value of time, earnings, profits, and salaries reasonably certain to be lost in the future.
5. The present value of the loss of ability to earn in the future.
6. The difference in market value of Ratliff’s vehicle immediately before and immediately after the occurrence; in determining this difference you may take into consideration the reasonable cost of repairs.”

The instruction was generally and specifically objected to, the specific objection contending that there was no testimony to establish permanency of the injury, or length of duration; that the evidence was insufficient to permit tlie jury to reasonably determine the loss of profits or earning's in the future; that there was no evidence to show the present value -of the automobile, nor testimony that would enable the jury to make a determination of the value of the vehicle before and after the accident. We disagree in the main with appellant’s contention.

The evidence reflects that Ratliff spent eleven days in the hospital, was in a plaster body cast for fourteen weeks, and thereafter wore a metal and leather body brace, which was still being worn on the date of trial; there was testimony that the brace would have to be worn for some months thereafter. Further testimony by Dr. H. Austin Grimes reflected that Ratliff had suffered a compression fracture of a vertebra in his spine, and a partial or complete destruction of a disc. X-rays revealed an abnormal honey proliferation, and the injury had caused an abnormal curvature of the spine forward. Dr. Grimes stated that the injury was a painful one, and that Ratliff would have to wear the steel and leather brace for at least a year; that pain would continue. Further testimony by the doctor was to the effect that Ratliff’s normal movement would be impaired; that appellee would have to be particularly careful to avoid hurting himself, and that any type of occupation requiring bending would be difficult for Ratliff to perform. With regard to the permanency of the injury, Dr. Grimes stated that the least on this type of injury would be “in the neighborhood of ten to fifteen percent disability” to the body as a whole.

It is true that the doctor testified that he could not answer with certainty as to the extent of the disabiliy, but that is hardly unusual. It would be rare indeed, except in cases of injuries that would obviously cause a total permanent disability, for a doctor to testify specifically as to any degree of permanent injury. However, Dr. Grimes testified as an expert, and gave his opinion, based on the experiences and knowledge he had acquired in the medical field. We think this evidence Avas sufficient to permit the jury to consider the extent, duration, and permanency of the injuries sustained by Ratliff; also, to consider the pain and suffering experienced in the past, and reasonably certain to be experienced in the future. The introduction of the mortality table was likewise permissible. Both matters were mentioned by the late Justice Minor W. Millwee in the case of Abraham v. Jones, 228 Ark. 717, 310 S.W. 2d 488.

“Appellants also argue the court erred in permitting the introduction of the mortality table showing appellee’s life expectancy. The only objection urged at the trial was that this testimony was immaterial because there was no evidence of any future loss of earnings or disability. On this point we think the trial court correctly held that the testimony offered by appellee was sufficient to warrant a jury finding for future loss of earnings and disability. This testiomny, although contradicted, was to the effect that appellee was still suffering pain and unable to perform his usual occupation as a farm laborer at the time of the trial. Similar evidence has been held sufficient to sustain a verdict for future loss of earnings and disability.”

Appellant argues that the court erred in including the word “salaries” in the instruction, inasmuch as there was no evidence that appellee had ever worked for a salary. No specific objection was made to the inclusion of this word, and we therefore do not consider this argument.

A vigorous attack is also made on the use of the word “profit,” but we find no merit in this contention. The evidence reflected that Ratliff had been engaged in working for himself by building batteries and bird boxes. He testified that he was earning between $200.00 and $300.00 per month prior to the injuries complained of, but that he was not able to engage in the battery repair business at the time of trial because of inability to lift a battery; that he had earned approximately $100.00 during the month prior to the trial. Appellant cites authority to the effect that, as a general rule, recovery is not allowed for the loss of business or profits from invested capital or labor of others, irrespective of the prominence of the part in the business taken by the injured person.

There is much conflict in the authorities relative to the right to prove the loss of profits to the business of an injured party occasioned by his inability to give personal attention to the business, but where one is the sole owner of, and laborer in, a business, it appears that evidence of profits is clearly admissible. As far back as 1915, this court, in St. Louis, I. M. & S. Ry. Co. v. Eichelman, 118 Ark. 36, 175 S.W. 388, quoting from a Pennsylvania case, said:

“ ‘Profits derived from capital invested in business can not be considered as earnings, but in many cases profits derived from the management of a business may properly be considered as measuring the earning power. This is especially true where the business is one which requires and receives the personal attention and labor of the owner.’ * * *
“It is permissible always to prove one’s capacity for and disposition to work, and any special qualifications which one has which tends to increase his earning capacity may be shown. And it was, therefore, competent here to show what appellee’s duties were in connection with his business; what his qualifications were for discharging those duties; what the services of one similarly qualified would have been worth to this business; and the extent to which appellee had been rendered unable to discharge his customer duties.”

The court, in the Eichelman case, ruled that certain evidence had been improperly admitted, but the inadmissible evidence related to accumulated profits from invested capital and the labor and services of a co-partner. In Coca-Cola Bottling Co. of Southeast Arkansas v. Jones, 226 Ark. 953, 295 S.W. 2d 321, we said: Various phrases have been used to describe the compensable loss sustained when a self-employed person is disabled. "We have said that ‘profits derived from the management of a business may properly be considered as measuring the earning power. This is especially true where the business is one which requires and receives the personal attention and labor of the owner.’ St. Louis, I. M. & S. Ry. Co. v. Eichelmcm, 118 Ark. 36, 175 S.W. 388. Much to the same effect is the statement that the damages are to be measured by the value of the proprietor’s services during the period of his injury.”

“* * * The plaintiff, who owned and conducted his own business, was incapacitated for several weeks by his injuries. His absence from the grocery store involved a financial loss that the jury were entitled to consider.

The case of Yost v. Studer, 227 Ark. 1000, 302 S.W. 2d 775, related to a dentist who had been injured in a collision and had lost time from his practice. The proof reflected that Yost lost about two weeks from his work, and, on appeal, the appellant contended that the court erred in refusing to submit to the jury the question of whether Yost had been damaged by loss of time from the practice of his profession. As authority for his position, appellant relied upon Coca-Cola Bottling Co. of Southeast Arkansas v. Jones, supra. This court rejected this contention, stating:

“The situation in the case at bar is quite different from the Jones case. Here, when plaintiff finished his case, not a scintilla of evidence had been introduced as to any damages he may have sustained because of loss of time. The jury had the benefit of no evidence whatever to be guided by in determining such alleged damages. Any verdict based on such alleged loss of time would have been pure speculation. There was no inkling as to whether such loss, if any, was $50.00 or $5,000.00. In these circumstances, it would have been utterly impossible for the jury to have reached an intelligent conclusion as to such alleged damages.”

In the instant case, evidence was offered as to earnings before and after the injuries, and was admissible to aid the jury in fixing the value of appellee’s time.

Appellant also objected specifically to that part of the instruction dealing with the market value of Ratliff’s vehicle. Here, appellant’s objection has merit. The only evidence relative to the value of Ratliff’s automobile was testimony to the effect that it was worth $300.00 before the accident. There was absolutely no evidence as to its value after the collision, though it does appear from the testimony that appellee continued to drive the car.

Appellant’s final assertion of error is based on the court’s refusal to instruct the jury that there could be no award of punitive damages. In his opening statement, counsel for appellee told the jury:

“Now the recklessness that is charged against Allen Holland is such that I believe that when the Court instructs you that he will instruct that for wanton conduct that shows disregard to others, you may award punitive damages as punishment. That will be a matter for you to decide. When you have heard all the evidence in this case, I think you will come to the conclusion that a substantial judgment should be awarded merely to compensate Tom Ratliff, and to pay him for the loss he has sustained. You may or may not determine that in addition he ought to be punished by an additional amount. Thank you very much.”

When the presentation of evidence was concluded and the jury instructed, appellee offered an instruction defining punitive damages and permitting a recovery for such damages if the jury found that Holland’s acts were committed willfully or wantonly. The court refused the instruction. Appellant also asked the court to give an instruction telling the jury that appellee was not entitled to punitive damages, but the court refused to do so, and error is asserted. It is contended that Holland was entitled to this instruction to counteract any effect that the opening statement of appellee’s counsel might have had on the jury. We do not agree. Counsel had told the jury that he believed that the court would instruct relative to punitive damages — but this was not done, and we do not see the need for this negative instruction. At any rate, while the request was made, appellant did not offer any instruction in this regard, and therefore, cannot be heard to complain.

As previously stated, there was no evidence to justify a recovery for the damage to appellee’s car, and the judgment should accordingly be reduced by the highest figure used in giving the value of that vehicle. This figure was $300.00, and the judgment should be reduced to $14,700.

The judgment is affirmed on the condition that remittitur is entered as indicated within seventeen calender days; otherwise, the judgment will be reversed, and the cause remanded for a new trial.


author: Ed. F. McFaddin, Associate Justice.

text:
    Hood v. City of Pine Bluff.
    5-3399
    385 S. W. 2d 1
    Opinion delivered December 21, 1964.

      Dich Hood, for appellant.

      George N. Holmes and Stephen A. Matthews, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal is an attack on Ordinance No. 3803 of the City of Pine Bluff. Two suits were filed in the Chancery Court against the City and its officials. Jim Hood was plaintiff in one suit, and John Hestand in the other. The suits were consolidated in the Chancery Court and trial resulted in a decree upholding the Ordinance and this appeal ensued in which the appellants urge only two points, subsequently to be set out and discussed. At the outset, we copy the Ordinance in full:

“ORDINANCE NO. 3803
“AN ORDINANCE GRANTING AN EXCLUSIVE PERMIT FOR THE PLACING OF REST BENCHES BEARING ADVERTISING MATTER UPON PORTIONS OF CERTAIN PUBLIC THOROUGHFARES AND OTHER LOCATIONS.
“BE IT ENACTED BY THE CITY COUNCIL OF THE CITY OF PINE BLUFF, ARKANSAS:
“1. An exclusive permit is hereby granted and awarded to H. L. Jones, his heirs and assigns, for a period of ten (10) years from the effective date hereof, to place artistic benches bearing advertising in the City of Pine Bluff, Arkansas, at such places, points and locations as the permittee selects. The permittee is hereby authorized to locate and place benches along public streets and thoroughfares, shopping centers and other localities which will serve the public convenience and necessity.
“2. The said H. L. Jones, his heirs and assigns, are granted permission to sell advertising space on such benches; provided, however, that no advertisement for any alcoholic beverages will be placed on any portion of any bench.
“3. For and in consideration of such permit, the said H. L. Jones, his heirs and assigns, agree to pay to the City of Pine Bluff the sum of Five and No-100 Dollars ($5.00) per bench per year, said fee being payable in advance annually within thirty (30) days from the effective date or anniversary date of this ordinance, with a minimum of fifty (50) benches guaranteed. Any benches placed in the interim shall be at the rate of Five and No-100 Dollars ($5.00) per bench for any period six (6) months or over, and at the rate of Two and 50-100 Dollars ($2.50 per bench for any period less than six (6) months and shall be due and payable upon the issuance of a permit by the City Engineer. Before the placement of any bench a permit must be issued by the City Engineer and the location of said bench approved by director of traffic.
“4. All rest benches hereafter placed along streets of the City of Pine Bluff shall be constructed of a combination of materials that will be durable and attractive. Each bench shall be approximately seven (7) feet long, two (2) feet wide and fifty (50) inches high, and shall not weigh more than eight hundred (800) pounds. The benches shall be kept in good and safe condition and repair at all times. Permittee further agrees to keep the immediate area around the benches in clean, orderly and sanitary condition and in such maner as not to create a fire hazard or menace to health.
“5. If at any time during the period of the permit granted herein, or any extension thereof, any public property upon which any bench or benches are located is needed for public purposes, permittee, his heirs and assigns, will remove such bench at his own expense upon the request of the Mayor of the City of Pine Bluff or his agents.
“6. If permittee, his heirs and assigns, shall abandon or fail to perfor many of the duties, covenants, or things imposed upon him herein, the City of Pine Bluff may declare this permit breached and terminate same, unless said breach is corrected within thirty (30) days after the breach occurs and notice given by the .City of Pine Bluff to the permittee. In such event the City of Pine Bluff is authorized, at its option, to take possession of said benches, disposing of them to the best advantage in its judgment, and any residue over and above the expenses involved shall be paid to the permittee, his heirs and assigns.
“7. Any assignee of permittee shall be obligated to notify the City Clerk of the City of Pine Blnff of any assignment of all or any part of this permit within thirty (30) days from the date of any such assignment. No assignment will be made or recognized without prior approval of the City Oonncil of the City of Pine Bluff.
“8. There is hereby granted to the permittee, his heirs and assigns, an option to renew this permit for an additional ten (10) year period beyond the original term hereof upon the same terms and conditions as contained herein; provided, however, that the price per bench per year may be renegotiated and a new price agreed upon ; provided further that such renegotiated price shall not exceed Ten and No-100 Dollars ■ ($10.00) per bench per year.
“9. This ordinance shall be in full force and effect thirty (30) days following its passage.
“Passed by the City Council November 18, 1963.”

The evidence disclosed that the plaintiff, Jim Hood, had been the holder of a bus bench franchise in the City of Pine Blnff under an Ordinance somewhat similar to the Ordinance No. 3803. Hood’s franchise had expired in 1959 but he had continued thereafter to place bus benches in the City of Pine Blnff without a-franchise. H. L. Jones made a proposal to the City of Pine Bluff for a franchise for bus benches. His proposal was referred to the City Traffic Committee. Jim Hood also submitted a proposed ordinance that he be given an exclusive franchise. Both the proposed Hood and Jones ordinances were studied by the City Council’s Traffic Committee and the entire Council; and changes were made; and the Ordinance No. 3803 was duly adopted by the City Council of Pine Bluff on November 18, 1963. No advertisement of any nature was published prior to the passage of the Ordinance No. 3803, and no bids were taken prior to the passage of the Ordinance. The City of Pine Blnff has at all times owned parks and recreational facilities.

Now we proceed to consider the two points on which the Ordinance is attacked; and we carefully limit our holding in this case to these two points and do not attempt to consider any other matters.

I.

The appellants’ first point is: “The Ordinance fails to comply with Act 224 of 1959.” A careful study of the said Act convinces us that it has no application to a situation like the one here. This Ordinance only attempts to allow H. L. Jones a permit to erect benches on the sidewalk area of the streets and to have advertising matter on the benches. There is no sale, lease, or other disposition of any recreational area or park property by this Ordinance. The Act 224 of 1959, as amended by Act 25 of 1961, may now be found in Ark. Stat. Ann. § 14-701 (Supp. 1963) et seq. The said Act purports to grant authority to certain agencies, including municipalities, “. . . to sell, lease, grant, exchange or otherwise dispose of any property or interest' therein comprising parks, playgrounds, golf courses, swimming pools, or other property which has been dedicated to a public use for recreational or park purposes ...”

Granting to H. L. Jones a permit to erect benches with advertising material on them is not a sale or other disposition of a park or recreational facility in any way.

II.

Appellants’ second point is: “The Ordinance is void for uncertainty, being unreasonable and an arbitrary delegation of power.” We find no merit in this point; and we cannot do better than to copy the excellent opinion of the learned Chancellor on this point:

“Is Ordinance No. 3803 void for indefiniteness and vagueness1? A portion of Section 1 of the Ordinance when read alone lends weight to this argument of Plaintiff. A portion of Section 1 reads as follows: ‘ The permittee is hereby authorized to locate and place benches along public streets and thoroughfares, shopping centers and other localities which serve the public convenience and necessity(Emphasis added.) As stated, this language standing alone would make the Ordinance rather indefinite. However, when this section is read in conjunction with last sentence of Section 3 and Section 5, it properly protects the public and the governing authority from abuses by the franchise holder. This is a valid delegation of discretionary powers to an administrative officer or officers, see 37 Am. Jur., “Mun. Corp.,” Section 160, and it meets the requirement of certainty and definiteness required by law. See 37 Am. Jur., “Mun. Corp.,” Section 163.
“Did the Mayor and City Council act unreasonably and arbitrarily in passing Ordinance No. 3803? The evidence reflects that two men were seeking the exclusive bench franchise for the City of Pine Bluff. These men are H. L. Jones and Jim Hood. Both men, personally as well as through counsel, were given an opportunity to be heard before a legally constituted meeting of the City Council; both men had authorized an Ordinance to be prepared setting out the terms of their respective bids to the city for the exclusive franchise for the placing of benches within the city. When a final vote was taken, an Ordinance favoring H. L. Jones passed by a vote of 5 to 3. Plaintiff Hood now contends that the Council acted arbitrarily. This argument is without merit. The Council is a legislative body and it was free in this matter to grant an exclusive franchise to one of two individuals. It chose one and, in effect, rejected the other. The loser, as is often the case, doesn’t like the decision, hut the will of the Council prevailed in a fair voice . . .”

Finding no merit in either of the two points urged by the appellants, the decree is affirmed.

Harris, C.J., not participating.


author: Ed. F. McFaddin, Associate Justice. George Rose Smith, J.,

text:
    Kendall v. Henderson.
    5-3442
    384 S. W. 2d 955
    Opinion delivered December 21, 1964.

      Macom é Moorhead, for appellant.

      George E. Pilcé, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question here posed is whether the Quorum Court of Arkansas County has the legal authority to appropriate, and the County Court of Arkansas County has the legal authority to expend, County funds for the erection of a building on County property to house historical relics of particular interest to the County.

The appellee (plaintiff below), J. Y. Henderson, brought this suit as a citizen and taxpayer of the County, to enjoin the appellants (defendants below) from making such expenditures, as previously appropriated by the Quorum Court. The said appellants are: Harold Kendall, County Treasurer; W. B. Norsworthy, County Clerk; and John L. Peterson, County Judge and presiding officer of the Quorum Court. The cause was presented to the Chancery Court on stipulated facts, pertinent portions of which we now copy:

‘ ‘ For more than four years last past there has been located at Arkansas Post State Park in the South end of Arkansas County, Arkansas, a museum containing articles of historical significance and artifacts having historical significance and value to the people of Arkansas County, Arkansas, and to others interested in the history of Arkansas Post and Arkansas County, Arkansas, donated or lent to such museum hy residents of Arkansas County and by others. Among the articles, relics and artifacts contained in said museum are articles which have historical interest and significance to persons visiting said museum applicable to the period when Arkansas Post was territorial capitol of Arkansas and applicable to the period of the Civil War and later dates. Said articles are presently, and at all times herein mentioned prior, to the present have been, housed in a log cabin structure belonging' presently to the State of Arkansas.
“The site of Arkansas Post State Park is in process of being acquired hy the United States of America and in the immediate future will he, and become, a National Monument owned hy the United' States of America, and administered under the juridiction of the National Park Service of the United States Department of Interior . . . Arkansas County . . . will lose all control and jurisdiction over the structure occupied hy said museum upon acquisition of said site by. said National Park Service.
“National Park Service, aforesaid, has announced publicly and has established the policy that in the development of the Arkansas Post National Monument the historical significance of such site from a National Monument standpoint will he the French and Spanish Territorial’period, and that only secondary emphasis will be given to the historical significance of the site as the first territorial capitol of Arkansas and as the site of an important Civil War battleground, and that no museum will be provided for the assembling of relics and artifacts of historical significance to this period of the history of such site.
“Considerable public interest has been developed among the citizens of Arkansas County for the preservation and extension of the museum presently located in Arkansas Post State Park ...”

The stipulation further stated (and we synopsize): that the Quorum Court in 1962 appropriated $2,400.00 for the purchase of suitable grounds for the location of the museum building; and a tract of 2.13 acres was deeded to the County in April 1963. Then at the Quorum Court meeting in November 1963, the sum of $30,000.00 was appropriated for the erection of a building on the acquired land, to be known as the Arkansas Post Museum. Again, we further quote from the stipulation:

“Said museum if constructed, will be owned and maintained by Arkansas County, Arkansas, and will house the historical relics and artifacts presently housed in the Arkansas Post State Park and Museum and such other historical relics and artifacts as may hereafter be made available to it, and will be operated for public use and enjoyment.
“That if such museum be constructed, the lands acquired by the County for the site of said museum and not actually occupied by the structure will be landscaped and' improved into a parking and recreational area in connection with the use of said building.”

The prayer of the complaint was that the defendants be enjoined from expending any of the County funds for the museum building. The Chancery Court was of the opinion that the County had no legal right to expend County funds for the erection of said museum building, and accordingly the injunction was granted. This appeal challenges the correctness of said Chancery decree; and appellants list only one point:

‘ ‘ The Chancery Court erred in finding from the facts set forth in the stipulations, that the construction and operation of the proposed museum would not constitute a ‘county purpose’ as that term is defined and understood under the Laws of Arkansas.”

Learned counsel for each side have thoroughly briefed this case, citing the Arkansas cases as well as those from other jurisdictions, but we conclude that our own cases require reversal of the Chancery decree. We start with these facts: (a) the County already owns the land; (b) the Quorum Court has made the appropriation of $30,000.00 for the erection of the building; (c) the County has that amount available; and (d) the County and its officers will honor the appropriation and expend the money unless restrained. The question is, whether the County has the legal authority to expend County funds for such purpose.

The germane portion of Art. 7., § 28 of the Arkansas Constitution says: ‘ ‘ The County Court shall have original jurisdiction in all matters relating to . . . the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” The appellants insist that this museum building is either a “county purpose,” an “internal improvement,” or a matter of “local concern” to Arkansas County; and appellants insist that if this museum building be either one of the said matters, then the County Court has the legal right to make the said expenditure. Appellants also point out that the 1941 Legislature, by Act No. 291, which is now Ark. Stat. Ann. § 19-3601 (Repl. 1956), provided that: “Any . . . county may . . . acquire, equip, and maintain lands, buildings, or other recreational facilities ; and expend funds for the operation of such program . . .”; and that this museum and grounds will be also a “recreational facility.”

The appellees maintain, and the Chancery Court, in a scholarly Opinion, held, that this museum will be a matter of interest to the State, and not only to the County, and therefore is not a matter of mere local concern. In his Opinion the Chancellor pointed out that other buildings and locations relating to matters of historic interest are financed by the State, and that such .policy of the Legislature clearly indicates that it is for the State and not for the County to finance this enterprise.

We turn now to our own cases. In only one of them —Johnson v. Donham, 191 Ark. 192, 84 S.W. 2d 374— has this Court reached a restrictive result regarding “county purpose.” In that case we held that a lew library for the Prosecuting Attorney of Pulaski County was not a “county purpose.” In other cases before and after the Johnson-Donham case, counties, either under the claim of “county purpose,” “internal improvement,” or “local concern,” have been permitted to expend county funds for such matters as: (a) a local registrar for birth and death certificates (Burgess v. Johnson County, 158 Ark. 218, 250 S.W. 10)(b) agricultural and home demonstration agents (Wilson and Smith v. Union County, 139 Ark. 559, 101 S.W. 2d 791); and (c) county fair buildings (Gordon v. Woodruff County, 217 Ark. 653, 232 S.W. 2d 832).

One of the most enlightening cases is Little Rock Chamber of Commerce v. Pulaski County, 113 Ark. 439, 168 S.W. 848. In that case, Pulaski County owned certain real estate and deeded it to the Little Bock Chamber of Commerce for $1.00. This Court held that the County Court had the authority to sell its real estate and, in the absence of fraud or a grossly inadequate consideration, the conveyance would stand. The consideration for the said deed, there involved, was the fact that the Little Rock Chamber of Commerce had accumulated large sums of money and property by gift from citizens and property owners “and was expending the same for public benefit in inducing the location of factories and other business enterprises in Pulaski County”; that it had thus induced certain large manufacturing plants to locate in the County and thereby increased the population of the said County and the revenues from taxation; and that the benefit to be derived by the County from increased revenues would amount to more than the value pf the property conveyed. If a County can legally deed away its property for such considerations as those stated in the case, then certainly a County can assist in building a museum to attract visitors. Arkansas is trying to attract visitors. It will be recalled that Arkansas Post was probably the first settlement in the State of Arkansas. The Federal Government is directing its energies as regards Arkansas Post State Park toward the French and Spanish period; the people of Arkansas County desire to have something that will direct the attention of visitors toward the early Statehood of Arkansas and one of the battles fought in that vicinity. The fact that the Federal Government is not emphasizinng State and local history does not preclude the County from emphasizing it. Frequently the Federal Government has one aim in mind, and the local community has another.

Another enlightening case is City of Blytheville v. Parks, 221 Ark. 734, 255 S.W. 2d 962, in which we approved a bond issue by the City of Blytheville, with the proceeds to be used for the purpose of acquiring additional lands for an airfield which the City intended to deed immediately to the Federal Government. The question was, whether the City could issue bonds to acquire property to be deeded to the Federal Government and, after quoting Little Rock Chamber of Commerce v. Pulaski County, supra, we held that the City of Blythe-ville had such authority because it would be of benefit to the community in several ways, one of which was increased visitors to the City.

The case of Gordon v. Woodruff County, supra, points unerringly to our conclusion. In that case 32 acres had been deeded to Woodruff County and the Quorum Court appropriated $2,500.00 to aid in the construction of a building for the county fair. The appropriation was challenged on the basis that such expenditure would not be for “county purposes.” We held that the transaction fell within the scope of “county purposes.” The purpose of a building for a county fair was to house exhibits to attract people to the fair. Here, the people of Arkansas County want to construct a building to house historical relics and other matters peculiar to Arkansas County to attract visitors. The same reasoning in Little Bock Chamber of Commerce v. Pulaski County, supra; City of Blytheville v. Parks, supra; and Gordon v. Woodruff County, supra, applies to the case at bar. There is no question of the availability of the funds. The only question is whether Arkansas County can expend the money for the building.' We conclude that such expenditure may he legally made.

The decree of the Chancery Court is reversed and the cause is remanded to enter a decree in accordance with this Opinion.

George Rose Smith, & Ward, J. J., dissent.

George Rose Smith, J.,

(dissenting). Our earlier opinions have drawn a reasonably clear distinction between a State purpose and a county purpose. The most comprehensive discussion appears in Cotham v. Coffman, 111 Ark. 108, 163 S.W. 1183, which involved a statute requiring a county to contribute to the payment of a circuit judge’s- salary. In holding the statute unconstitutional we used this language:

“It is to our minds clear that the ‘county purpose’ referred to in the Constitution means some purpose peculiarly within the province, as distinguished from those. general purposes left to the' State at large- — such, for instance, as for building bridges, courthouses, jails, taking care of the poor, making public roads, etc. ... It is true that some of these county purposes, such as building courthouses and jails inure equally to the benefit of the State, but it is well understood that these things are provided for by the county. We think that the purpose can not, in the sense of the Constitution, be both a State and county purpose. It must be one or the other. . . . A State purpose must be accomplished by State taxation, a county purpose by county taxation, or a public purpose for any inferior district by taxation of such district. This is not only just, but it is essential.”

The Gotham case was followed in Fort Smith Dist. of Sebastian County v. Eberle, 125 Ark. 350, 188 S.W. 821, where an act requiring a county to pay the salary of a State-appointed local registrar was declared to be unconstitutional. Again, in Johnson v. Donham, 191 Ark. 192, 84 S.W. 2d 374, we held that Pulaski county could not on its own initiative purchase a law library for the prosecuting attorney. That case involved a district that embraced only two counties, Pulaski and Perry. Since the population of the former was more than ten times that of the latter, it is evident that Pulaski county would actually have received almost the entire benefit from the proposed library. It was nevertheless our conclusion that the appropriation was not for a county purpose.

In the case at bar the only fact indicating that Arkansas Post is of peculiar interest to Arkansas county is its geographical location. Ever since the enactment of Act 57 of 1929 Arkansas Post has been a State park, maintained at State expense. The museum now in controversy has also been a State-supported facility. Of course it cannot be doubted that a former State capital is of historical importance to the State as a whole. That the park is being converted into a National Monument demonstrates that its preservation is of value to the nation as well.

The proof shows that the acquisition of this museum will cost the county taxpayers $60,000, to be paid for in two years. There is also the matter of maintenance for the indefinite future. -Neither the record nor the briefs indicate that the museum will attract any tourists who would not be brought to the county anyway by the National Monument alone. If, as we have held, a county cannot constitutionally contribute to the support of localized State functions from which the citizens of the county unquestionably derive a direct benefit, it seems to me that the constitution also forbids the use of county taxes for the support of a State park or a National Monument.

       Ark. Stat. Ann. § 17-401 (Repl. 1956) gives the composition of the Quorum Court, and Ark. Stat. Ann. § Í7-409 (Repl. 1956) states the order of making appropriations.

       The making of this 1963 appropriation and its expenditure constitute the cause of this litigation.

       Indicative of such study, we call attention to the following cases, selected from the brief of one side or the other: the English case of
        Atty. Gen. v. Sunderland (1875), Law Reports (Chancery Div.) Vol. 2, p. 634, Law Journal (1876) Vol. 45, p. 839; Vale V. City of San Bernardino (Calif.), 292 P. 689; Board of Trustees of Phila. Museum v. Trustees of U. of Pa., 96 A. 123, Ann. Cas. Vol. 1917D, p. 449; Aquamsi Land Co. v. City of Cape Girardeau (Mo.), 142 S.W. 2d 332; Mc-Clatchey v. Atlanta (Ga.), 101 S.E. 682; Hunter’s Estate v. Colo., 49 p. 2d 1009, 101 A.L.R. 1202; Hogge v. Rowan County (Ky.), 231 S.W. 2d 8; State v. Dickenson (Fla.), 33 S. 514; and Florida Power Corp. v. Pinellas Utility Board (Fla.), 40 S. 2d 350.

       Attention was called to Ark. Stat. Ann. § 8-301 (Repl. 1956) regarding the Arkansas State War Memorial Building in Little Rock; also to Ark. Stat. Ann. § 8-205 (Repl. 1956) regarding the wartime capítol at Washington in Hempstead County, Arkansas; to Ark. Stat. Ann. § 8-201 (Repl. 1956) regarding the Arkansas Commemorative Commission;, to Ark. Stat. Ann. § 8-601 (Repl. 1956) regarding the Prairie Grove Battlefield Commission; to Act No. 164 of 1961 regarding the Marks’ Mills Battleground State Park; to Act 10'of 1961 regarding the Jenkins’ Ferry Battleground State Park; and to Act No. 182 of 1961 regarding the Poison Springs Battleground State Park.

       The holding of that case was largely overcome by Act No. 245 of 1949, as now found in Ark. Stat. Ann. § 24-124 (Repl. 1962), wherein it was enacted that the Prosecuting Attorney could equip the law library out of the amount appropriated for “contingent expenses,” and the legality of that Act has not been before us. Of course, we now have a statute providing for county law libraries (Ark. Stat. Ann. § 25-501 [Repl. 1962]).


author: George Rose Smith, J.

text:
    Reed v. Reed.
    5-3413
    385 S. W. 2d 33
    Opinion delivered December 21, 1964.

      Levine é Williams, for appellant.
    No brief filed for appellee.
   George Rose Smith, J.

This is a divorce suit brought by the appellant. The chancellor granted the appellee a divorce on her counterclaim and also awarded her the custody of the couple’s two, children. It is- contended that the court erred in restricting the plaintiff’s right to testify and in finding that the testimony offered by the defendant was sufficient to establish a ground for divorce.

Upon the first point the record is evidently incomplete. At the trial the chancellor refused to permit the husband to testify about the merits of the case. "We have no doubt that the chancellor had his reasons for this exceptional procedure, but the trouble is that the deficient record prevents us from reviewing the correctness -of his action.

In the absence of any explanation a trial court’s refusal to allow a party to testify is prima facie wrong. It was the appellee’s duty to designate for inclusion in the record any explanatory matter that might be needed to support the court’s action. We cannot indulge the presumption that the omitted portion of the record would sustain what appears to be an error. Ark. Stat. Ann. § 27-2127.6 (Repl. 1962); Southern Farmers Assn. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531. We have no choice except to set aside the decree.

In attempting to prove a ground for divorce the appellee confined herself to a statement, without details, that her husband had deserted her. Her only corroborating witness was her mother, whose testimony was equally deficient. Inasmuch as the case must be retried we merely point out that the proof must go beyond a recitation of conclusions of law and establish the specific facts that are relied upon to justify the party’s demand for relief. Dunn v. Dunn, 114 Ark. 516, 170 S.W.234; Sutherland v. Sutherland, 188 Ark. 955, 68 S.W. 2d 1022. As the ease has not yet been fully developed we do not attempt to review the court’s child custody award.

Reversed.


author: Paul Ward, Associate Justice. George Rose Smith, J.,

text:
    Stephens v. AAA Lumber Co.
    5-3400
    384 S. W. 2d 943
    Opinion delivered December 21, 1964.

      C. B. Starbircl, for appellant.

      Batchelor & Batchelor, for appellee.
   Paul Ward, Associate Justice.

Appellee, The AAA Lumber Company, is a corporation engaged in the retail sale of building supplies. On September 9, 1963 appellee filed a complaint (later amended) against D. L. and Gina Lunsford (husband and wife) alleging they were indebted to it in the sum of $1,670.31 for building materials purchased and used in constructing a house on 20 acres of land owned by Odis and Eula Stephens who are the parents of Gina, and who were later made parties defendants. It was further alleged that the Lunsfords were non-residents and owned no property here except the said building; and that Mr. and Mrs. Stephens were estopped to deny the Lunsfords owned the said building. Appellee prayed for judgment against the Lunsfords for the amount stated above, that the building be subjected to attachment, that it be removed from the land and sold (if necessary), and that the proceeds be applied on the judgment. Ño question is raised as to the procedure for attachment.

Judgment was rendered against the Lunsfords as prayed and they have not appealed.

Mr. and Mrs. Stephens (appellants here) filed an answer to the above complaint, admitting they owned the land, that they helped the Lunsfords build the house, and that appellee furnished the building materials. They alleged the house became a part of the realty. They denied that the Lunsfords were non-residents or that there was any agreement for the Lunsfords to have title to the house. They prayed that the complaint and the attachment be dismissed or, if the attachment be sustained, that their interest be prior to that of appellee.

After testimony was introduced by both sides, appellants offered seven instructions which were refused by the court without objection. Then the issues were submitted to the jury on three general instructions along with the following interrogatory:

“Do you find from a preponderance of the evidence in this case that the defendants, Odis Stephens and Eula Stephens, stood by, observed the buying of lumber from the AAA Lumber Company, and the using of the lumber in the house in question and participated in the picking-up and hauling items from said company to the building-site and actually helped in the building of the house without making protest or advising the plaintiff that said land belonged to them and that they claimed said house Í ’ ’ To the above interrogatory the jury’s answer was “Yes”. The only objection and exception to the above procedure was the following:
“The defendants object to the submission by the Court to the Jury the question of estoppel in this case for the purpose of holding defendants, Odis Stephens and Eula Stephens, liable for the debts of D. L. Lunsford and Gina Lunsford.
“THE COURT: This is overruled.”

The obvious answer to the above objection was stated at the time by the trial court when it said: ‘ ‘ The court never thought of holding them (appellants) personally liable.” Likewise, appellee does not here seek to hold appellants personally liable.

Appellants urge two additional points for a reversal, but we find no reversible error in either.

One. Appellants’ argument is to the effect that the house when built became a part of the realty and therefore could not be detached and sold. Ordinarily this is true, but there are recognized exceptions. See: Soule, Guardian v. First National Bank of Ft. Smith, 202 Ark. 326, 150 S.W. 2d 204, and Hankins v. Luebker, 224 Ark. 425, 274 S.W. 2d 356. In the first case this point arose where machinery was attached to and was a part of the realty in 1934, but where later it was disposed of, and we said: “They were sold separate and apart from the building in which they were stationed, and this, in legal effect, was a severance, which invested them with the character of personality.” In the other cited case this Court was dealing with pumping units installed in a rice field which concededly was ordinarily a part of the realty. This Court there said:

“It is well settled by our own cases and the authorities generally that parties may treat as personal property machinery or improvements which would otherwise be a part of the realty, and, thus convert it into personal property as between themselves.”

Here the record is replete with testimony to show, and to support the finding, that appellants, by their actions, led appellee into thinking the Lunsfords were buying building materials to build their own house and not a house for appellants. Mr. Stephens even admitted that he was paid by the Lunsfords for helping them build the house and that appellee furnished the material. Therefore we think the trial court was right in holding, without objection, appellants were estopped from now claiming the house was a part of the realty and that it belonged to them.

Ttoo. We find no merit in appellants’ contention that the. Lunsfords were not non-residents and that, therefore, there was no legal basis for service by attachment. The pertinent part of the attachment statute, Ark. Stat. Ann. § 31-101 (Eepl. 1962) reads as follows:

“The plaintiff in a civil action may, at or after the commencement thereof, have an attachment against the property of the defendant, in the cases and upon the grounds hereinafter stated, as a security for the satisfaction of such judgment as may be recovered.
“First. In an action for the recovery of money, where the action is against—
1. A defendant, or several defendants who, or some one of whom, is a foreign corporation, or nonresident of the State ...”

The pivotal word, as here connected, in the above section is “non-resident”. The question here therefore is not whether the Lunsfords were domiciliaries of this state but whether they were non-residents. This Court has consistently held that the words “domicile” and “residence” are not synonymous. If the Lunsfords were non-residents at the time this suit was filed, then the attachments must be sustained. See: Krone v. Cooper, 43 Ark. 547, where we said:

‘ ‘ Thus, where a mother left the state of her domicile and accompanied her children into another state, with the intention, however, of returning when their education was completed, she was held liable to the process of attachment in the state of her domicile, as being a nonresident of that state. Alston v. Newcomer, 42 Miss. 186.”

Here it is not disputed that the Lunsfords were not residing in this state though there is some intimation they might someday make this state their domicile. It is not denied that they moved to Dallas in August 1963, and that Mr. Lunsford is now employed in California.

In addition to the above it is conceded that Mrs. Lunsford was present at the trial and that she also testified in the case. By so doing she entered her appearance. Nichols v. Arkansas Trust Company, 207 Ark. 174, 179 S.W. 2d 857; Prosser v. Ark. Baptist Hospital, 237 Ark. 157, 372 S.W. 2d 395.

Affirmed.

George Rose Smith and Robinson, JJ. dissent.

George Rose Smith, J.,

(dissenting). It should be made clear at the outset that this case does not involve a materialman’s lien. Lee Edwards, the appellee’s president and general manager, testified that he refrained from filing a lien because Lunsford asked him not to do so, saying that it would “foul Mr. Stephens up.” Thus the lumber company, with notice that the Lunsfords did not own the land, allowed its remedy against the improvement itself to lapse.

The majority opinion nevertheless creates, on the theory of estoppel, what is in substance a materialman’s lien. Reliance by the adverse party is an essential element in an equitable estoppel. If the complaining party had no knowledge of the conduct that is said to give rise to an estoppel there could have been no reliance and therefore no estoppel. Miller Lbr. Co. v. Wilson, 56 Ark. 380, 19 S.W. 974.

There is no substantial evidence to show that any action on the part of Mr. and Mrs. Stephens misled the appellee either into giving up its lien or into believing that the house was to become the Lunsfords’ separate personal property. Edwards, the head of the lumber company, testified that on about three occasions Stephens picked up small items, such as nails, that D. L. Lunsford had ordered. Stephens said at the time that the material was going into the house being built for Lunsford. It may also be true, though this is not clear, that it was known to the lumber company that Stephens was assisting his son-in-law in building the house.

These facts fall decidedly short of creating an estoppel. Under onr decision in Gunter v. Ludlam, 155 Ark. 201, 244 S.W. 348, and similar cases, one who stands by and permits another to construct a building on his land is not estopped to assert his ownership as against a materialman’s lien. Here the same principle applies to the improvement as well, for the appellee failed to perfect its lien.

Most of the appellee’s argument relates to transactions between the Stephenses and the Lunsfords. Stephens testified that he intended for the house to be a home for his daughter and her husband. He kept track of his own contributions of labor and material so that he could take them into account later on in making a fair division of his property among his three children. The proof does not suggest that Mr. and Mrs. Stephens were under an enforceable duty to convey the house and lot to the Lunsfords.

What happened between the Stephenses and the Lunsfords is immaterial as far as the appellee’s reliance is concerned, for no one at the lumber company knew anything about these matters. If, however, there had been a binding agreement between the Stephenses and the Lunsfords that the house was to become the latters’ severable personal property, then it might be said that the appellee could claim subrogation to the Lunsfords’ rights. The short answer to such a 'suggestion is that no such agreement was established. Mr. and Mrs. Stephens and their daughter all testified, but none of them intimated that the dwelling was to become personal property. Any such suggestion is in fact wholly unreasonable. An agreement that an improvement is tb remain personal property means that its owner intends to have the power to remove it from the land. Otherwise the agreement could have no purpose. This house was built upon a concrete foundation and could not have been moved without its being damaged. There was obviously no thought in the minds of any of the parties that the house would ever be moved. The jury did not find, and on the proof could not have found, that the dwelling was personal property. The judgment should he reversed.

Robinson, J., joins in this dissent.