text:
    Smith v. May.
    5-1793
    323 S. W. 2d 551
    Opinion delivered April 6, 1959.
    [Rehearing denied May 25,1959]

      Paul K. Roberts, for appellant.

      Max M. Smith, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves a controversy over 16.10 acres of land located in Cleveland County. Appellees instituted suit against appellants on November 24, 1956, alleging actual possession of the aforementioned acreage and other lands for more than 50 years, the payments of taxes, and asserted that they had received the rents and profits therefrom. The complaint alleged that appellants were claiming some interest in said property, based upon a certain deed held by appellants, and the prayer was that title to the property be vested and confirmed in appellees. Appellants answered, denying the allegations, asserting their ownership of the property by virtue of a deed dated May 17, 1921, and asked that title to the property be quieted in them. Subsequently, the Smiths filed a motion to dismiss the suit “because all parties with an interest in the property involved in this suit have not been made parties to this suit, as plaintiffs, or defendants,” and later filed another motion to dismiss, alleging that the statute providing for the quieting and confirmation of titles had not been complied with. On hearing, the court denied the motions to dismiss, finding actual service on appellants, found that the lands in controversy were not wild and unimproved, that appellees had acquired title by adverse possession, and quieted title in appellees “subject to the rights of any parties who may not have become a party to this action to assert such rights as may exist.” From such decree, comes this appeal.

Appellants’ claim to the 16.10 acres is based upon a quitclaim deed to them from R. J. May and Dora May (parents of appellee May herein), dated May 17, 1921, and also by clerk’s tax deed dated November 20, 1956. Appellees Moore, Glover and Attwood claim their interest through Victor Moore, who on December 31, 1935, under a partition deed in the I. E. Moore estate, was deeded, among other lands “southwest Quarter (SW%) the Southeast Quarter (8®%) of the Northwest Quarter (NWi/4) all in Section Twenty (20) Township Nine (9) South, Range Ten (10) West.” These appellees have continued in possession and paid taxes through 1956. Appellee May received a deed from his mother in 1955, but all appellees claim by adverse possession. The land herein involved in this litigation, and claimed by the Moore heirs is known as tract No. 2. May, who claims what is known as tract No. 1 in this litigation, testified that “I farmed this north part of tract No. 1 ever since I can remember, and had an old fence around it near the road. This is an old road outside the fence, and farmed it until the tornado in 1927 and it laid out one year. In 1928 I continued to farm it, and built another little house on the edge of it. Tenants were in there and farmed it along with this other land up until 1935. In 1937 I rented this farm out to Victor Moore and he farmed his own farm and this one, and I have a photograph to show it was farmed, and I have witnesses out here to show it was farmed.” May is presently in possession of the premises claimed by him, and he had no knowledge of appellants making any claim to the land until 1957. He testified that tract No. 2 was farmed originally by Mr. I. E. Moore; that the land was terraced in the ‘30’s, and that Mr. Leon Moore subsequently farmed the land. May stated that he had seen crops on it, and there had been fences around both tracts. He further testified that the tracts were last in cultivation “in the ‘40’s.” Don Ashcraft, a neighbor, testified that the lands had not been farmed in five or six years; that there was formerly a sawmill on tract No. 2 and it was common knowledge in the neighborhood that timber was being cut off the land; that he had never seen Smith on the premises. Larry Barton, an employee for the Soil Conservation Service, examined some aerial photographs showing the property in 1938, and testified that the photographs showed terrace lines and cleared land. Tom Rushing testified that he farmed and lived on the May land from 1936 to 1942, and that all the land was fenced; that he worked tract No. 1 involved in the law suit. He stated that Smith never came on the place, nor did he attempt to collect rents or occupy the property. Don Adams stated that he farmed the May place in 1941 and ’42, and that the “old Kern place ’ ’ was also being farmed by his brother-in-law; that he had all of his dealings with Victor Moore, and never did see or hear of Smith claiming any interest in the land. I. E. Moore (grandson of the I. E. Moore heretofore referred to) testified that his father, Leon Moore, worked the Kern place through 1936, and “we run cattle in there up to last year.” Mark S. Clover, son-in-law of the deceased Victor Moore, testified that he had been in charge of the Victor Moore estate since 1946, and had been in possession of the Kern place; that it was farmed until 1951 or ’52, and had since been converted to timber; that he sold timber off the premises, and had collected rents and paid the taxes; that it had recently been placed “in the soil bank.” As previously stated, appellant, A. E. Smith, received a deed to the property on May 17, 1921; however, he testified that he had never cultivated any of the land (nor seen it in cultivation), had never cut any timber off of it, and had only been on the lands three or four times since 1921. In fact, appellant’s deed was not recorded until January 12, 1952, a period of nearly 31 years. No explanation is given for the failure to record the deed for that period of time, except that ‘ ‘ I thought I would find the land every time I could get a surveyor. I couldn’t get nobody to do nothing.” He stated that he had 1,500 acres of land, and “I can’t keep up with all of it.” Smith started paying taxes in 1951 on the lands in litigation under a different description, and accordingly, both appellants and appellees were paying taxes on the property. The record does not reflect who was responsible for the double assessment. Smith paid from 1951 through 1957, except for the year 1953, and the property was sold for that year’s taxes to Mayme McMurtrey, who subquently assigned her certificate of sale to this appellant. In November, 1956, Smith received the Clerk’s Tax Deed to the property.

It is difficult to understand why one claiming property in his own county of residence, would not record his deed for over 30 years, did not pay taxes for 30 years, and only visited the premises four times during that period. The evidence clearly shows that the lands were farmed, off and on, and it would certainly seem that appellants would have known that others were making use of the lands and claiming same.

Appellants contend that if the lands were once improved, they reverted back to an unimproved state, and Smith’s tax payments entitled him to the property. In Bratton v. Union Sawmill Company, 168 Ark. 637, 271 S. W. 32, this Court said:

“It may be that, when fields, once cleared and cultivated, have been abandoned and permitted to go to waste and grow up in briars and brush and the fences become dilapidated and destroyed, the lands will be regarded as unimproved and uninclosed, as though they had never been, but we think this condition must be shown before the title to lands , once improved and inclosed, can be acquired by the payment of taxes in accordance with said law. In other words, if the lands are shown to have been improved or inclosed during any of the seven years, the successive payment of taxes for which would have conferred title upon the person paying the taxes if they had been unimproved and uninclosed, it would defeat the claimant’s title thereto.”

The record does not clearly reflect that these lands have been permitted to go to waste, and have reverted to their original unimproved state; in fact, the preponderance of the evidence is to the contrary. Subsequent to the conclusion of the testimony, the Chancellor filed a written opinion in which he, inter alia, stated:

“ * * * The plaintiff’s tax receipts show payment for well over 7 years. Defendant Smith also showed payment of taxes for 7 years. It seems that the lands in controversy have been on the assessment rolls under differing descriptions.

Does the payment of taxes by Defendant Smith under color of title interrupt the 7 years adverse possession of plaintiffs?

“The record doesn’t show who was responsible for the double assessment.

If the Assessor be at fault, it would not be equitable to permit the payment of additional taxes by defendant, Smith, with no notice to the plaintiffs, to redound to the benefit of the defendant. If the Assessor, on Ms own motion changed the description, he should have taken the other description off the assessment roll. On the other hand, if defendant Smith assessed the land in controversy under a different description than under which they -were already assessed, and if defendant Smith paid taxes under the differing descriptions, then it would be inequitable to permit him to take the advantage of Ms own erroneous act.

The defendant relies upon the Quitclaim Deed executed in 1921 and recorded in 1952. At the time of its execution the deed was color of title. No explanation is offered for the 30-odd years delay in recording the instrument. Defendant made no effort to secure actual possession during the time his deed remained off of record. The plaintiffs and their predecessors in title exercised all of the attributes of possession and claimed ownership which vested title to them by adverse possession. * * * ”

We are unable to say that the Chancellor’s findings are against the preponderance of the testimony.

Affirmed.

       Victor Moore was the son of I. E. Moore, the latter receiving a deed on May 27, 1912 to “part of SE1^, NW%, Sec. 20, 9-10” from Charles and Lucy Kerns.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Drennen v. Bennett, Atty. General.
    5-1817
    322 S. W. 2d 585
    Opinion delivered April 6, 1959.

      Macom £ Moorehead, for appellant.

      Bruce Bennett, Atty. General, By Ben J. Harrison, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

From a judgment sustaining a demurrer to the complaint and dismissing the cause of action, the plaintiffs bring this appeal. The issue presented to us is whether the complaint stated a cause of action for mandamus against Hon. Bruce Bennett, Attorney General of Arkansas.

Drennen and others, as citizens, taxpayers, and sportsmen residing in the present 6th Congressional District, alleged in their complaint:

(1) That Arkansas Constitutional Amendment No. 35 (adopted by the people in 1944) provided that the Arkansas State Game and Fish Commission (hereinafter called “Commission”) should consist of seven members to be appointed by the Governor; and that the Amendment stated in § 2 thereof: “Each Congressional District must be represented on the Commission”.

(2) That F. H. McCormack of Stuttgart (in the 6th Congressional District) was a member of the Commission until his term expired in 1956; and that the Governor then appointed Riley M. Donoho of Fort Smith (in the 3rd Congressional District) as a “member at large” on the Commission; and that since 1956 there has been no one on the Commission “. . . appointed to represent the 6th Congressional District of the State of Arkansas”.

(3) That Dr. J. H. Burge of Lake Village (in the present 6th Congressional District) was appointed in 1953 as a “member at large” and is still serving on the Commission; but that Dr. Burge is a “member at large”' and does not “represent the 6th Congressional District”.

(4) That the plaintiffs had requested Hon. Bruce Bennett, Attorney General of Arkansas, to institute quo warranto proceedings to oust Riley M. Donoho as a usurper, since he resides in the 3rd Congressional District, but the Attorney General had refused to institute such proceedings against Donoho.

(5) That the Attorney General should be compelled by mandamus to institute and prosecute such ouster proceedings against Donolio.

Bennett, as Attorney General, filed a general demurrer to the complaint, which was sustained; the plaintiffs refused to plead further; and now appeal from the dismissal of their complaint. At the outset, it is clear that the plaintiffs selected the correct procedure for presenting the issue for judicial determination. In Vanhoose v. Yingling, 172 Ark. 1009, 291 S. W. 420, we held that, since private citizens could not directly prosecute usurpation proceedings, the remedy of such citizens was to apply to the proper official to institute such usurpation proceedings; and that if such official refused to act, then the private citizens could proceed against him by mandamus. See also Scott v. McCoy, 212 Ark. 574, 206 S. W. 2d 440. Since a State Commission is involved in the case at bar, the Attorney General would be the proper person to institute such proceedings, if they should be instituted. See § 34-2201, § 34-2203, and § 34-2205 Ark. Stats.

The real issue is: have the plaintiffs alleged facts which show, at all events, a violation of the language of Amendment No. 35, which says: “Every Congressional District must be represented on the Commission”1? We conclude that the plaintiffs have failed. The complaint recited that Dr. J. H. Burge of Lake Village, in the present 6th Congressional District, was at all times herein involved a member of the Commission: so the present 6th Congressional District has at all times had on the Commission a resident from that district. The fact that Dr. Bnrge was and is designated as “member at large” does not gainsay the fact that he resides in the present 6th Congressional District. Adding the words, “member at large ’ ’, did not change his residence any more than placing “Dr.” in front of his name limited him to the representation of his profession. The words in the Amendment No. 35 are, “Each Congressional District must he represented on the Commission”. When read in context with the entire amendment, these words do not mean that the voters of each Congressional District elect a representative, because the Amendment says that the Governor shall appoint. So the quoted words in the Amendment really mean that in appointing the members of the Commission, the Governor must make sure that at all times there is a resident of each and every Congressional District on the Commission.

We know — as we may in the exercise of the power of judicial notice — that when the Amendment No. 35 was adopted in 1944, Arkansas had seven Congressional Districts; that by reason of the 1950 census Arkansas was reduced to six Congressional Districts. Thus, since Act No. 297 of 1951 reapportioned the Counties in the various Congressional Districts, there have been more members on the Commission than there have been Congressional Districts. The custom has grown up that the extra member would be called “member at large”, as long as there was already another resident from that District on the Commission. But the words, “member at large”, do not change the residence of the appointee. Dr. Burge resides in Chicot County, which is in the present 6th Congressional District, so that District is “represented on the Commission” within the spirit and intent of the Amendment No. 35.

In the oral argument before this Court, appellant made the contention — not contained in the pleadings — that when Amendment No. 35 was adopted in 1944 it “froze”, the Congressional Districts insofar as the Amendment No. 35 was concerned. That is to say, appellant argued that the words, “Each Congressional District must be represented on the Commission”, meant that each Congressional District as Congressional Districts were constituted in 1945 must be represented on the Commission. We think such contention is unsound for at least two good reasons of statutory construction.

In the first place: constitutional provisions operate prospectively and do not operate retrospectively unless the language used or the purpose of the provision indicates that such operation was intended (16 C. J. S. 121). If the framers of Amendment No. 35 had intended to say what the appellants now claim, then the framers of the Amendment would have said, “Each Congressional District as now constituted must be represented on the Commission”. The failure to place the italicized words in the Amendment shows the fallacy of the appellants’ argument.

Secondly: we know that when the Amendment No. 35 was adopted, there had been, theretofore, a series of Acts changing the Congressional Districts in Arkansas; and if the framers of the Amendment had intended that the Congressional Districts could not be changed, insofar as Amendment No. 35 was concerned, they would have been obliged to say so. By the Act of January 3, 1853, Arkansas was divided into two Congressional Districts: by the Act of April 24, 1873, there were four Congressional Districts: by the Act of March 23,1883, there were five Congressional Districts: by the Act of April 9, 1891, there were six Congressional Districts: and by the Act of May 23, 1901, there were seven Congressional Districts. So, with a long history of changes in Congressional Districts, it was certainly clear that Congressional Districts would continue to be changed as population requirements rendered such changes necessary or advisable. So the Amendment No. 35 did not “freeze” the Counties comprising the various Congressional Districts.

We reach the conclusion that the Attorney General was correct in refusing to institute usurpation proceedings, as requested by the plaintiffs; and that the demurrer to the complaint was properly sustained.

Affirmed.

       In Vanhoose v. Yingling, supra, Mr. Justice Frank G. Smith stated the limits of a mandamus proceeding such as is the one in the case at bar: “A general statement of the law as applied to the facts of this case is as follows: The prosecuting attorney has the discretion to determine for himself whether a county officer is usurping the office, and, if he concludes that there is no usurpation under the facts as he finds them to be, he is under no duty to act because some citizen, on the same state of the facts, has reached a different conclusion as to the eligibility of the officer. But, where an honest judgment, intelligently exercised, can lead to only one conclusion, and that conclusion is that the officer is not eligible to hold the office, then there is no discretion, because the officer whose duty it is to act can then only determine whether he will obey the law and perform his duty, or will ignore the law and leave his duty unperformed. No such discretion as this is vested in any officer, and under such circumstances, the prosecuting attorney may be compelled to act.” Substituting “Attorney General” for “Prosecuting Attorney” in the paragraph quoted, gives us the governing rule in the case at bar.

       Arkansas Statutes § 3-501, in the volume published in 1947, listed the Counties that composed the various Congressional Districts until the reapportionment under Act No. 297 of 1951. The 1956 Replacement Volume of Ark. Stats, contains §§ 3-509 et sea., which list the Counties composing the various Congressional Districts, as determined by Act No. 297 of 1951.


author: George Bose Smith, J.

text:
    Anderson v. Parker.
    5-1825
    323 S. W. 2d 414
    Opinion delivered April 6, 1959.
    [Rehearing denied May 18, 1959]

      B. Ball and Spencer & Spencer, for appellant.
    No brief filed for appellee.
   George Bose Smith, J.

In 1947 Nettie Hatridge executed a will leaving all her property to the appellant, Barney Anderson. In 1953 Mrs. Hatridge married the appellee, Doyle E. Parker. Upon the testatrix’s death in 1957 Parker elected to take against the will, as it had been executed before his marriage to the decedent. Ark. Stats. 1947, § 60-501. In an appeal from the probate court we upheld Parker’s claim to a curtesy interest in the estate. Anderson v. Parker, 229 Ark. 683, 317 S. W. 2d 721.

Parker’s right to an allowance of curtesy is again the issue in this case, which began as a suit by Parker to obtain an accounting with reference to a partnership that formerly existed between Anderson and the late Mrs. Parker. By a cross-complaint Anderson asserted that in about 1944 he and Mrs. Parker, who was then Mrs. Hat-ridge, entered into an oral contract by which she agreed to make a will leaving all her property to Anderson. It is Anderson’s contention that Mrs. Hatridge was bound by this contract when she married Parker in 1953, and consequently Parker’s claim to curtesy is subordinate to Anderson’s right to specific performance of the asserted contract. The chancellor held that the proof fell short of establishing the existence of the contract, and the correctness of that finding is the only issue now presented.

The weight of the evidence supports the trial court’s conclusion. It is true that the law recognizes the validity of an oral contract to make a will, but the proof of such an agreement must be clear and convincing. Offord v. Agnew, 214 Ark. 822, 218 S. W. 2d 370. We observed in that case that the plaintiff who succeeds in establishing such a contract has usually performed his part of the bargain at a sacrifice to himself and has usually rendered services not easily compensated in money. In many instances, probably in most instances, the consideration for the contract is the promisee’s obligation to support his benefactor for the rest of his or her life.

In the case at bar the evidence does not leave us with an abiding conviction that the parties entered into a binding agreement. Anderson first met Mrs. Hatridge in 1944, when he rented a room in her home for a few months. It is quite evident that a warm friendship developed between Mrs. Hatridge, who had been recently widowed, and Mr. and Mrs. Anderson. The Andersons were quite attentive to Mrs. Hatridge for the rest of her life and especially during her last illness in 1957, which was long after her marriage to Parker. It is fair to add, however, that the evidence indicates that Mrs. Hatridge’s substantial gifts of money to the Andersons exceeded the value of their gifts and services to her.

The only testimony about the terms of the supposed agreement comes from Anderson himself, whose statements cannot be regarded as undisputed. Anderson states that in 1944 or 1945 Mrs. Hatridge said that if the Andersons would “stand by her” and help her with her affairs she would leave them everything she had at her death. This vague description of the agreement is not materially strengthened by the testimony of Mrs. Anderson, who merely quotes Mrs. Hatridge as having often said, “If you stay with me it’s yours.”

That the Andersons stood by Mrs. Hatridge and helped her with, her affairs is shown clearly enough, but we are not convinced that they were under a binding contractual duty to do so. Mrs. Hatridge undoubtedly told the Andersons about the provisions of her will, by which everything was left to Anderson, and it is understandable that the Andersons were genuinely grateful and felt a strong moral obligation to reciprocate in any way they could. But it is quite another thing to say that Mrs. Hat-ridge irrevocably agreed to leave her entire estate to the Andersons, in return for their nebulous promise to stand by her in the future, and we are not persuaded that the proof clearly and convincingly establishes such a contract.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Aluminum Company of America v. Walden.
    5-1788
    322 S. W. 2d 696
    Opinion delivered April 6, 1959.

      Rose, Meek, House, Barron <& Nash, O. Wendell Hall, Jr. and Wright, Harrison, Lindsey $ Upton, for appellant.

      McMath, Leatherman <& Woods, for appellee.
   Paul Ward, Associate Justice.

This litigation was initiated by appellees, the widow and children of Ed Walden, to recover damages for his death which, as they allege, was caused by the negligence of appellant, Aluminum Company of America (hereafter referred to as Alcoa). The alleged acts of negligence on the part of Alcoa relied on by appellees will be set out later in this opinion. We deem it sufficient to set out only a brief summary of the facts and events preceding Walden’s death and bearing upon the issues involved for the reason that they have twice been recounted in recent decisions of this court. See: Walden v. Automobile Owners Safety Insurance Company, decided March 31, 1958, 228 Ark. 983, 311 S. W. 2d 780, and United Steelworkers v. Walden, decided April 7, 1958, 228 Ark. 1024, 311 S. W. 2d 787. We will hereafter refer to the deceased as Walden.

Alcoa has for many years been extensively engaged, among other things, in mining bauxite in Saline County. Incident to these operations they have opened numerous mines or quarries and have built private roads thereto leading from the public roads nearest by. It is necessary that these private roads be substantially constructed because they are used by heavily loaded trucks in carrying the bauxite ore from the mines. When the ore is exhausted in a mine or quarry it is abandoned and another is opened at a different site. Walden was an employee of Alcoa from 1935 until March 1946, in the capacity of an Oiler Foreman. As such, it was his duty to visit the several mines in order to oil the mining equipment. From 1946 to 1948 or 1949, Walden worked for Reynolds Metals Company as an operator in one of their chemical plants in which capacity he made frequent trips in the general area of Alcoa’s operations. Then Walden went with United Steelworkers of America as an International Staff Representative and served in that capacity until his death. When a labor dispute arose between a member of the union and the employer (in this instance Reynolds Metals Co.) and preliminary efforts at settlement failed, it was Walden’s duty to help conduct what is called a Fourth Step hearing. It appears that Walden’s job was to make the necessary preparations for the Fourth Step hearing by securing the attendance of desired witnesses. Herbert Jarrett of Louisville, Kentucky, is employed by Reynolds as a Director of Labor Relations serving nine states including Arkansas and, representing management, he worked with Walden representing labor in conducting such hearings. Guy Bass, who lives at Benton, is Chairman of Local 333 of United Steelworkers which has jurisdiction over one of Reynold’s plants.

It seems that a Fourth Step hearing had been set for Friday, March 2, 1956, requiring witnesses who lived in the general area of the operations conducted by Alcoa and Reynolds, but on Tuesday morning, February 28,1956 Jarrett (who had arrived in Little Rock the day before) called Walden at his office in Benton. Pursuant to this call Jarrett met Walden at his office and discussed the advisability of setting the hearing up one day, i.e. for Thursday, March 1st. However it was deemed necessary to consult Bass about any such change, but he could not be contacted until about 7:30 that evening, when the three of them drove to Little Rock. There they discussed the meeting until about midnight and decided to have it on Thursday. Bass and Walden then drove to Bass’ home in Benton where they sat in Walden’s car and discussed matters until about 3:00 a.m., Wednesday, February 29th. Walden then left and was not seen again until his body was found submerged in the water in Pit No. 14, one of the abandoned mines belonging to Alcoa, about 8:00 p.m. that same day. His car had been found in the water of the pit about 1:30 p.m.

Location of Pit No. 14. The public road runs east from Benton about 7 miles to Bauxite, thence it continues easterly through the area of Alcoa’s mines to small settlements in various parts of Saline County. About two and one-half miles east from Bauxite there is a private road built by Alcoa which leaves the public road and runs north some 1880 feet to Pit No. 14 where Walden’s body was found.

For convenient reference hereafter we will use the following designations: The letter A represents a portion of the public road near Bauxite; B represents the intersection where the private road leaves the public road; C represents a place on the public road east of B, and; P designates the location of Pit No. 14.

Appellees’ complaint predicated liability on the following allegations, in substance: (a) Alcoa failed to erect a sign at B warning travelers that a deep water-filled pit was only a short distance away, in view of the fact that the road from B to P appeared to be a public road; (b) Alcoa failed to place the sign at B reading “Private Road”, in a conspicuous spot; (c) Alcoa failed to erect a barricade where the private road led directly into the water-filled pit; (d) Alcoa failed to drain the water from Pit No. 14, and; Alcoa failed to erect a sign at B advising travelers that the private road led directly into a water-filled pit. Alcoa’s answer was a general denial and that Walden’s death resulted from his own negligence or that he assumed the risk.

After the introduction of testimony and numerous exhibits, the cause was submitted to the jury which returned a verdict in favor of appellees. On appeal, appellant relies on only one point for a reversal. This point, as stated by appellant, is as follows: “Appellants only point is that its request for an instructed verdict should have been granted because there is no substantial evidence that appellant was guilty of negligence. ’ ’

Appellant’s principal argument is that Walden was a trespasser, or at least only a licensee, and that it owed Walden no duty except not to injure him after becoming aware of his presence on the private road. There was no contention that appellant knew of Walden’s presence on the private road on the occasion in question. We agree with appellant that if Walden was a trespasser or a licensee then no liability has been shown against Alcoa in this case and the judgment should be reversed and the cause dismissed. In the above connection the law in this state appears to be settled beyond any question. In Garrett v. Arkansas Power & Light Company, 218 Ark. 575, 237 S. W. 2d 895, we quoted from Knight v. Farmers & Merchants Gin Co., 159 Ark. 423, 252 S. W. 30, the following statement:

“In all our decisions on the subject — and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes his license with its concomitant perils, and that the owner owes him no duty of protection except to do no áct to cause his injury after his presence there is discovered.”

It is the contention of appellees, however, that Walden, under the facts and circumstances of this particular case, was not a trespasser when he drove upon the private road and into Pit No. 14, but that he was an implied invitee.

An array of authority leads us to agree, in principle, with the above contention of appellees. Section 367 of Restatement of the Law, Torts, states the applicable rule this way:

“Dangerous conditions upon Land Appearing To Be A Highway. A possesor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway, is subject to liability for bodily harm caused to them while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.”

Under the above section appear these pertinent comments :

“a. One whom a possessor of land intentionally or negligently misleads into believing that part of his land is a public highway, is entitled to expect that the possessor will afford him a security similar to that which he would be entitled to expect were the land actually a highway.” (Emphasis added).
‘ ‘ c. The rule stated in this Section applies not only where the possessor of land has paved a strip of his land adjoining the highway or has otherwise dealt with it so as to make it appear to be part of the highway, but also where he has so constructed a private road branching off from a public highway that he should realise that persons traveling on the highioay tvould reasonably regard it as a continuance thereof.” (Emphasis added)
“ d. In addition, the possessor, having misled others into believing that part of his premises is a public highway, is under the same duty to them in respect to the maintenance of the rest of his land adjacent thereto and in respect to the activities conducted thereon as though such part were actually a public highway.” (Emphasis added).

The same rule of law is stated by Prosser on Torts, 2nd edition at page 429 this way:

“Likewise, if he so maintains a part of his land that it appears to be a highway, as where he paves a strip next to the street, or gives a private way the appearance of a public one, he must use reasonable care to see that there is no danger to those who are misled into using it. It is often said in such cases that there is an implied ‘invitation’ to enter, but the true basis of liability seems to be the misrepresentation as to the character of the property.” (Emphasis added.)

In the case of Southern v. Cowan Stone Co., 188 Tenn. 576, 221 S. W. 2d 809, where the factual situation was similar to that of this case, the Court, after quoting from said Section 367 and from Prosser, used this approving language :

“The rule above set forth clearly seems the fair, reasonable and humane view to take. Why should one be allowed to mislead either intentionally or through negligence, another to his harm and not be answerable therefor?” (Emphasis added).

Sustaining the same principle are: Barlow v. Los Angeles County Flood Control List., 96 Cal. App. 2d 979, 216 P. 2d 903; Concho Const. Co. v. Oklahoma Natural Gas Co., 201 F. 2d 673, and; Mo. Pac. Ry. Co. v. Riley, 185 Ark. 699, 49 S. W. 2d 397.

As we understand appellant’s position it agrees with the principle of law above set forth, but ably contends that the facts and circumstances of the case under consideration do not bring it within that principle. Ordinarily of course such an issue would be for a jury to decide but appellant says, and necessarily must say, the evidence in this record is such that the issue becomes one of law. In other words appellant, as before noted, takes the position that there is no substantial evidence upon which to submit the issue to a jury. If the question was properly presented to the jury, then of course appellant cannot prevail because no objection has been raised as to any instructions. The principal question remaining for consideration then is whether a jury question is presented by the record.

After careful consideration and deliberation we have concluded that the record discloses substantial evidence upon which the jury could find Walden was an implied invitee on the private road in question or, to the same effect, that he was misled into believing, acting as a reasonable person under the circumstances, the private road was a continuation of the public road. In pointing out portions of the evidence in support of the conclusion we have reached we feel that a complete detailed disclosure would unduly extend this opinion and add little to its worth as a precedent. This is particularly true since, as heretofore stated, most of the facts are contained in two former opinions.

Many different phases of the primary issue were presented to the jury under the numerous instructions given by the court. Viewing the evidence, as we must, in the light most favorable to appellees, there is, we think, substantial evidence from which the jury could find: (a) That Walden drove over the private road at night; (b) That he was not under the influence of liquor; (c) That he was misled into believing he was on the public road; (d) That he did not assume the risk by reason of his familiarity with the private road, and: (e) That his death was the result of appellant’s negligence.

(a) As recognized by both sides, appellees would be cast into a more favorable position if Walden was traveling at night when he ran his car into Pit No. 14. Several facts and circumstances indicate such was the case. He left Benton about 3:00 a.m., his watch was stopped at 4:30, his car was found at 1:30 p.m., and there is no evidence anyone saw him in the meantime. There is evidence from which it could be reasonably concluded that he was engaged in contacting individuals in the vicinity before they went to work preparatory to the meeting the next day.

(b) If Walden was under the influence of liquor it would indicate he ivas not acting as a reasonable man, or it could be considered as contributory negligence on his part. The evidence, however, does not necessarily indicate such was the case. The weight of the testimony indicates, we think that he was not under the influence of liquor, and certainly there is substantial evidence to that effect.

(c) It is undisputed that the public road from A to B is approximately 40 feet wide, is gravel surfaced, and well defined. Likewise it is undisputed that the private road, where it leaves the public road, is of the same formation, description, and width as the public road. It is significant also that the continuation of the public road from B to C is of inferior construction and very narrow. It is referred to by both sides as an “almost one-way road. ’ ’ At point B there was, at the time of Walden’s death, a relatively small sign reading “Private Road” located at the left side of the public road at the point where it was intersected by the private road. There is, however, evidence that the sign was not readily visible to one approaching from the west on the right (proper) side of the public road. The road at the intersection is about 50 feet wide. Due to the width of the road and the location and size of the sign it could he reasonably inferred that it might not he revealed by the headlights of a car at night in making a turn to the left.

(d) We are unable to say, as a matter of law, that Walden assumed the risk involved in traveling on the private road. Appellant feels otherwise for they think the evidence shows conclusively he was familiar with this road. It is true that Walden did have numerous occasions to and did visit Pit No. 14 while he was working for Alcoa from 1935 to 1946. However that was 10 years before his death and there is no positive evidence that he had visited it since, or that the road and the mine were in the same condition in 1956 that they were in 1946. The evidence shows that the mine was flooded in 1954 or the early part of 1955, and it was not shown that Walden was aware of that fact.

Considerable importance is attached to the fact that the moon was shining on the night in question, but that was a circumstance which could properly be argued to the jury to show Walden was himself guilty of contributory negligence.

(e) Assuming, as we must, that the jury resolved all the above matters favorably to appellees, and assuming as we may that the jury found Walden to be an implied invitee, it appears to us that the jury was justified in finding appellant was guilty of negligence which led to Walden’s death in failing to erect proper warning signs on the private road which had the appearance of a public road, and in allowing Pit No. 14 to remain flooded for several months without some kind of a barricade or warning sign at the entrance to the mine. It is conceded that the private road ran directly into the water-filled pit on a decided downgrade for the last 80 feet. The case of Helena Gas Co. v. Rogers, 98 Ark. 413, 135 S. W. 904, involved a disputed question of fact whether appellant had exercised the care required by law in warning against the hazards of an excavation, and this court said it was a question for the jury.

Although appellant makes no serious contention that Walden committee suicide yet considerable testimony was introduced tending to create the impression that he might have extricated himself from the water had he walked .in the direction of the bank instead of away from it into deeper water. This again, was a matter which addressed itself to the jury under proper instructions of the court.

We have carefully considered the numerous decisions referred to in appellant’s excellent briefs in apparent conflict with the conclusion which we have reached herein, but they are, we find, distinguishable on the facts, and it would serve no useful purpose to discuss them. As we have said many times, where questions of fact are involved, each case must be decided on its own set of facts and circumstances. There is one case, however, cited by appellant which gave us the most concern. In Harris v. McClintock, 164 Ark. 145, 261 S. W. 29, this Court held as a matter of law that a ferry boat operator was guilty of no negligence in failing to put up ropes, chains, lights, or other obstruction across the front of the boat while it was moored to the bank of the river at night to warn or protect prospective users. There the court said:

“We do not think appellee could have reasonably-anticipated that a man or men would drive an automobile onto and over the ferryboat into the river in the belief that it was a bridge. It was a contingency that could not have been reasonably anticipated. The death of appellant’s intestate was the result of the wholly unexpected act of the driver and his companions. It did not occur in the natural course of things, but was the result of exceptional circumstances.”

Without indicating our agreement with that decision, we think it also differs materially from the case under consideration in that the boat itself constituted an efficient warning to a traveler that danger lay immediately ahead which could hardly be ignored by a reasonable person. The court could have taken the view that a reasonable person could not ignore such a warning without himself being guilty of some slight degree of contributory negligence which would have barred recovery under the law as it then existed. The case under consideration however was tried under Act 191 of 1955 (later repealed by Act 296 of 1957) whereby any degree of contributory negligence, however great, was not a bar to recovery.

Appellant, pursuant to the chief contention that there is no substantial evidence to support the verdict of the jury, makes the argument that to sustain the judgment it is necessary to base it on a pyramid of inferences. In this connection it points out there is no positive proof that Walden entered the private road and the water-filled pit during the nighttime, that he was traveling from the direction of Bauxite when he entered the private road, that he died at the time his watch stopped, or that he did not commit suicide. The answer to this argument is that it is within the province of the jury to draw certain inferences from facts and circumstances, as we have frequently held. See: Purifoy v. Lester Mill Company, 99 Ark. 490, 138 S. W. 995, and Phillips Cooperative Gin Co. v. Dewey Goshen, 230 Ark. 270, 322 S. W. 2d 68, and the cases cited therein.

It is therefore our opinion that the judgment of the trial court must be, and it is hereby affirmed.

Affirmed.

McF addin, J., concurs.

George Rose Smith, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    Payton v. Payton.
    5-1835
    322 S. W. 2d 588
    Opinion delivered April 6, 1959.

      Richard W. Hobbs, for appellant.

      R. Julian Glover, for appellee.
   Sam Robinson, Associate Justice.

On January 4, 1946, the appellee herein, Elbert E. Payton, sued Yoncile I). Payton for a divorce. After considerable preliminary skirmishing with regard to alimony pendente lite and for support of the couple’s minor son, then 14 months of age, the parties finally reached a property settlement agreement on June 24, 1947. Elbert agreed to pay Yoncile $500, of which $150 was to be paid in cash on the day the divorce was granted and the balance to be paid in installments over a period of 12 months with 6 per cent interest. It was also agreed that Elbert would convey to Yoncile certain real estate and household furniture and appliances and that Voncile should have the custody and care of the minor child, with the right of Elbert to visit the child at reasonable times. The agreement provides: “Yoncile Payton hereby agrees to accept the above settlement as a full settlement of all property rights, both real and personal, and in lieu of all alimony, maintenance and support and in lieu of all other claims which may be predicated upon the marital relationship, contract and status of herself and Elbert Pay-ton”. And on her part Yoncile agreed to execute to Elbert a deed to certain property.

On the same day the aforesaid agreement was executed, Elbert was granted a divorce on the ground of indignities ; Yoncile was granted custody of the child; nothing was said in the decree about support for the child. It was mentioned, however, that the parties had made an amicable property settlement. Later, Yoncile married again and moved to California, but she separated from her second husband about seven years ago.

On January 22, 1958, Voncile filed a “Motion to Amend Decree”. In this motion she alleges that since the divorce was granted in June, 1947, she has expended about $5,000 in support of the child and she asked the court to grant her a judgment against Elbert for that amount. Elbert responded and alleges that the property settlement he made at the time of the granting of the divorce was to take care of the child support; that there has been no change in circumstances that would require him to pay anything additional. The parties entered into a stipulation that whether Elbert was indebted to Yoncile for a sum to reimburse her for support she had given to the child was a question of law and that in the event the court should find that he was so indebted for the support of the child, the amount of such indebtedness should be $1,500.

Voncile testified that she had supported the child since 1947 and that Elbert had paid nothing toward the support except the original $500 and, on rare occasions, had given the child articles of clothing. It was the decree of the trial court that Yoncile should recover nothing by way of reimbursement for money she had expended for the support of the child, but henceforth Elbert should pay $20 per month support. On appeal Yoncile does not complain of the amount of $20 per month to be paid in the future, but contends that as a matter of law she is entitled to be reimbursed in the stipulated sum of $1,500 for money that she has expended in support of the child.

We do not think that when all the facts and circumstances of this case are considered appellant is entitled to be reimbursed for money she expended as child support. In the first place, Elbert has paid everything the decree required him to pay. Although the divorce was granted in 1947, it was not until 11 years later that appellant saw fit to go into court to ask for an order requiring appellee to pay anything for the child. Of course, during all this period of time the child has been supported, and anything the appellee would now be required to pay for support the child received prior to January, 1958, would be by way of reimbursing appellant for money that she had spent. Actually, such payment would not inure to the benefit of the child at all, but it would be reimbursing appellant for what she has expended. So, in this appeal appellant is not asking for child support, but is asking that she be repaid money that she has expended, and contends that as a matter of law she is entitled to such reimbursement.

In McCall v. McCall, 205 Ark. 1123, 172 S. W. 2d 677, there was a court order directing the father to make certain payments as support for the two minor daughters. Later, due to adverse circumstances encountered by the father, the court ordered a suspension of the monthly payments. Later, the father made considei-able money and the court ordered him to make the payments that had been suspended during the time the father was in financial distress. This Court points out that it is the duty of the father to support his children and ordinarily he will be required to do so regardless of whether there is a court order to that effect, and that under broad general principles of equity the father should be required to pay to the mother such sums as would fairly reimburse her for the expenditures she had made for the support of the minor children during all the time when appellee failed to make provision therefor. But we do not believe the effect of that case is to say that as a matter of law, under any and all circumstances, the father must reimburse the mother for any money she has spent in support of the children. In the case at bar it was undoubtedly considered by the parties that the property settlement at the time of the divorce was to take care of the child’s support, because nothing whatever is said in the decree about support for the child. Both parties were represented by counsel, they had engaged in considerable controversy about the payment of support prior to the granting of the divorce, and it cannot be concluded that a provision in the decree for child support was inadvertently omitted. But, notwithstanding the fact that the parties may have agreed that the father would be relieved of any further payments for child support, such agreement would not be binding on the child. And if the mother had come into court at any time as she did in January, 1958, and asked for child support, very likely her request would have been granted; but she waited 11 years before taking any such action, and any payment that the father would now make for support of the child for any period before January, 1958, would be to reimburse the mother and not for actual support of the child. The mother accepted the property settlement; she got the personal property and the real estate according to the agreement; she remarried, went to California with the child, and took no action to obtain support for the child for 11 long years. In these circumstances we cannot say that as a matter of law she is entitled to reimbursement.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Miller & Groffo v. State.
    4921
    322 S. W. 2d 685
    Opinion delivered April 6, 1959.
    [Rehearing denied May 4, 1959]

      Robert Raster and Jeff Duty, for appellant.

      Bruce Bennett, Atty. General, By Bill J. Davis, Asst. Atty. General, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a conviction of the offense of robbery. On March 5. 1958, appellants, Robert Miller and Tommy Groffo, drove to the home of Mr. and Mrs. Jim Sizemore, and there proposed to them that they would repair their cook stove at no cost. Mr. Jim Sizemore is 77 years old and his wife is 71 years old. Their home is on a farm three miles east of Springdale on State Highway 68. Mr. and Mrs. Sizemore are the recipients of a monthly check from the State Welfare Department in the amount of $44.00 per month each. '

On the pretext of repairing the Sizemores’ cook stove, appellants attempted to close some cracks in this second hand wood stove by inserting some type of liquid cement into the seams, joints and cracks. After doing this alleged repair work, appellants then told the Sizemores that they owed them $78.60. They further told the Sizemores that they “had to pay it”, that they “will have to take the old man to the boss if you don’t pay”, and “we will stay here until we get our money, we’ve got to have it.” Mrs. Sizemore then gave the appellants two $20 bills and Mr. Sizemore gave them $9.00. As this was not the amount appellants told them they must have, appellants then insisted that Mr. Sizemore go with them and cash the two welfare checks that had been received that day. Appellants then took Mr. Sizemore into Springdale and there the two checks were cashed totaling $88.00. After taking the $88.00 from his hand, they then returned to the Sizemores’ home. There Mr. Sizemore got out of the truck, and Robert Miller gave him $2.00 back. The total amount taken from the Sizemores was $135.00. Approximately 20 minutes after Mr. Size-more got home, he reported the robbery to his son when he came from work. Shortly thereafter, the appellants were apprehended at a road block by the State Police, then returned to Washington County, and custody of the appellants was placed in the Washington County Sheriff’s Department.

Appellants were charged by information on March 10, 1958, with the crime of robbery as defined by Ark. Stats. (1947) Section 41-3601. A trial was had on April 17, 1958, and appellants were convicted of the crime of robbery and sentenced to 10 years in the State Penitentiary. From such conviction comes this appeal.

For reversal the following three points were relied upon:

I.

The defendants cannot be guilty of robbery.

II.

The verdict and judgment is excessive.

III.

The testimony of Mrs. Sizemore as to her impression, without threats to base it upon, was inadmissible.

The points will be treated in the order in which they are urged.

I.

Ark. Stats. (1947) Section 41-3601 provides:

“Bobbery is the felonious and violent taking of any goods, money or other valuable thing from the person of another by force or intimidation; the manner of the force or the mode of intimidation is not material, further than it may show the intent of the offender.”

The only question before this Court concerning the sufficiency of the evidence is whether intimidation or force was used in the offense that the appellants committed. If either force or intimidation was employed to obtain the money from the Sizemore couple, the requisites of the statute are met. "We have held many times that if either force of intimidation is used to obtain money or other valuable goods, robbery has been committed; and both are not necessary to complete the offense. The testimony shows that the Sizemores were afraid and scared of the appellants, and the testimony -was not contradicted. Taking into consideration the-age of this couple, the intimidation necessary to complete the offense is not nearly so great as would be necessary to complete the offense if the victims -were younger people.

We said in a similar case, Sutton v. State, 162 Ark. 438, where the argument was advanced that no intimidation was employed:

“Whenever the element of force or putting in fear enters into taking of the property and is the cause that induces the owner to part with it, the taking is robbery, no matter how slight the act of force or the cause creating the fear may be, nor by what other circumstances the taking may be accompanied. It is sufficient that the putting in fear overcomes the resistance on the part of the person from whom the property is taken, and is the moving cause inducing him to part unwillingly with his property. (Emphasis supplied.)

A careful review of the record shows, we think, substantial evidence to support the jury’s finding that this couple parted unwillingly with their money as the result of intimidation and fear. The statements made by the appellants that they had to have the money, threatening to take Mr. Sizemore to their boss, and other statements of a similar nature, satisfy the requirements of the statute and our prior decisions concerning the amount of intimidation necessary — especially in view of the age and physical condition of this couple — and none of the State’s evidence was controverted by the appellants.

II.

Point No. II gave us a great deal of concern. However, we are bound by the rule stated in Hall v. State, 113 Ark. 454, 168 S. W. 1122, wherein we said:

“It was the peculiar province of the jury to weigh the testimony of the witnesses, and this court is not at liberty to reduce the punishment, even though we might think it too severe.”

We cannot say, in the absence of other error, that there was not any substantial evidence to support the verdict.

III.

In order to properly discuss Point III, it is necessary that we set out additional parts of Mrs. Sizemore’s testimony. She stated in substance:

Miller stated he fixed stoves; he said he would fix her stove and it would not cost a penny; Groffo then came in after he was called by Miller; he was neat and clean and did not look like a stove repair man; Miller stated that the cement would cost 12 cents an inch; the appellants then told them that they owed them $78.60; she gave them two $20.00 bills; the reason she gave the bills to them was because the appellants told her they were going to take her husband off; they were going to take him to the boss man; the statement of the appellants scared her; she was already scared when she saw the big one come in because she did not think they were stove fixers; the appellants said that we had to get the money; that the appellants were going to stay there until they got it; she was afraid that she and her husband would make them mad; she was afraid they would hurt them in some way; they forced Jim to go with them to cash the checks; she was frightened and scared, and: the reason she gave them the $44.00 check was because she was scared not to.

In addition to the testimony as set out above, the Prosecuting Attorney asked the following questions:

“Q. Now, what did you think, if anything, Mrs.
A
“A. "Well, I’ll tell you, I just thought . . .
“Q. What was your state of mind at that time!
“A. Well, I’ll tell you . . .
‘ ‘ Q. What impression, if any, did that make on you, what they said!
“A. I was afraid they’d kill him.”

Objections were strenuously made by the defendants to these questions. The objections were overruled and exceptions were saved. Mrs. Sizemore was permitted to answer the questions.

Ordinarily, such questions as to the state of mind of a prosecuting witness would be improper. However, in this case where the statutes make intimidation or putting in fear the person robbed an element of the offense of robbery, it is proper that the state of the mind of the person robbed be proved in order to show that all the elements of the offense were present. 20 Am. Jur., Evidence, Section 335, has this to say on the question:

“The state of mind of a person, like the state or condition of the body, is a fact to be proved like any other fact when it is relevant to the issue in the case, and the person himself may testify directly thereto.”

After a careful review of the points argued in the excellent briefs of the parties, and a diligent search of the record, we are unable to find error. Therefore, the judgment is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Shaver v. Parsons Feed & Farm Supply, Inc.
    5-1798
    322 S. W. 2d 690
    Opinion delivered April 13, 1959

      Bex W. Perltins and E. J. Ball, for appellant.

      Crouch, Jones & Blair, for appellee.
   Carleton Harris, Chief Justice.

Appellants instituted suit against appellee and Thurman Parsons and G-len Parsons, seeking judgment for $2,732, alleging that amount of damage to have occurred because of the failure of appellee to deliver a load of grapes to a designated point in proper condition. The complaint alleged that appellee is a common carrier of goods for hire, is engaged in shipping produce in interstate commerce, and that on August 16, 1957, appellants delivered to appellee 5,400 four quart baskets of Fredonia grapes, U.S. No. 1 table grade, at Springdale, Arkansas, for immediate shipment to Super Yalu Stores, Inc., near Minneapolis, Minnesota. Further allegations relate that the grapes were placed in a refrigerated trailer, which departed from Springdale about 11 p.m. on said date; that at the time the grapes were accepted, the fair market value of same was $3,132, but at the time of arrival at the destination, the grapes had spoiled, and had a value of only $600. It is then alleged “That the goods were spoiled because of the negligence of the defendants, their agents and employees in failing to maintain the refrigerated trailer in a working condition, and in failing to re-ice said trailer at the proper time, and in failing to repair said refrigeration equipment in said trailer when said defendants, their agents, servants and employees knew or had reason to know that said equipment was not operating properly, and that if said equipment was not operating properly that said grapes would be spoiled and unfit for human consumption. ’ ’ The driver of the truck was Johnny Freeman, alleged to be the agent, servant, and employee of appellee. The Shavers alleged that they had incurred expenses in the sum of $200 in selling the grapes for salvage only, and then prayed judgment as set out above. Appellee answered, denying any negligence, and asserted that if the goods were spoiled “such spoilage was due to the negligence of the plaintiffs themselves in overloading and improperly loading the trailer unit described in plaintiffs’ amended and substituted complaint in such a manner as to prevent the proper functioning of the refrigeration system in said trailer unit, and if the grapes described in plaintiffs’ amended and substituted complaint were spoiled or damaged in any manner, that said spoilage or damage is directly attributed to the negligence of the plaintiffs themselves and is a complete bar to their right of recovery.” Appellee filed a counterclaim in the amount of $1,000, based on the assertion that Freeman, after the shipment was refused by Super Yalu, was directed by appellants to deliver the grapes to a winery near Morrilton, Arkansas, and that appellants had refused to pay for such service. The cause proceeded to trial on August 11, 1958, and the jury returned a verdict for appellee as against appellants’ complaint, and found for appellee on its counterclaim against appellants in the amount of $250. Judgment was accordingly entered, and from such judgment, comes this appeal.

A reversal of the court’s judgment is urged solely upon one point, vis, “The trial court erred in admitting into evidence certain hypothetical questions and the answers thereto by witnesses Forrest Hazel and Joe Robinson. ’ ’

Appellants first assert that neither Robinson nor Hazel qualified as experts, not being engineers, and the court erred in permitting them to testify to any facts concerning refrigeration. We do not agree. It is true that the witnesses were not engineers, but both had long years of experience in the field of wholesale produce, and had shipped all types of fruits produced in the area, including Fredonia grapes, to points over the entire United States. Robinson has been engaged in such business for 20 years, and Hazel about 43 years, and both have made shipments in the same size trailer used in the shipment under discussion. Each appears qualified on the basis of experience to answer the questions propounded to them, and to render the opinions complained of.

The proof reflects that 5,400 baskets of Fredonia grapes were loaded in a thirty-three foot Trailmobile refrigerated trailer on a rather warm day in Springdale, and that at the time of the loading there was no refrigeration. The evidence further reflects that appellants began loading the grapes around 5 o’clock in the evening of August 16, 1957, and completed the loading around 1 o’clock the following morning. The trailer left Spring-dale at that time with a bunker full of ice, and proceeded on toward its destination. The blower' fan was in operation at all times except for short periods occasioned by the gasoline motor that operated the fan running out of gas. This would be filled at the next station, and after several such occurrences, Freeman purchased a gasoline can and took enough gas with him to fill the motor when it would become empty. At Osceola, Iowa, Freeman put more ice in the truck, though not filling it. “I lacked a little bit of filling it up. They had — the ice plant had to haul their ice from Des Moines, and they didn’t have enough to let me fill up.” The bunker was filled completely at Albert Lea, Minnesota, and then the trailer proceeded on to Hopkins, Minnesota, a suburb of Minneapolis, where Freeman was to deliver the grapes at 8 o’clock the next morning. Freeman testified that he went to sleep in the truck around 11:30 or 12 o’clock (Sunday night, August 18th). On awakening around 5 a.m., he discovered that the motor on the “Thermo King” was not working, and the refrigeration had gone off. After trying unsuccessfully for some time to start it, he proceeded on to the dock where he was to unload. From his testimony:

“Well, after I seen I couldn’t get it started, why, I knowed I couldn’t get nothing done before eight o’clock, because they just don’t open up till eight o’clock, so I said, ‘Well, I’ll just pull around here and see if I can find the dock where I’m supposed to unload.’ So, I started on out to find my dock. ’ ’

About 8:30 or 9 o’clock, representatives of the Super Yalu Store came and inspected the grapes, and refused to accept the shipment. At this time where was still about 500 pounds of ice in the bunker. These representatives of the company testified that the pulp temperature was far in excess, throughout the load, of what the normal temperature should have been. These witnesses also testified that many of the grapes were crushed and loose from the stems, as well as moldy. The testimony revealed that the ‘ ‘ Thermo King ’ ’ was broken and not in operating condition. The evidence also reflected that the grapes were loaded to within about a foot and a half of the nose of the trailer, and within four inches of the ceiling from there to the back. Freeman testified that the grapes were within three inches of the blower.

Counsel for appellee propounded to witness Robinson a hypothetical question, which was objected to by appellants’ counsel. After tkrae objections to the question had been sustained, the following question was asked on the fourth attempt.

“Taking a fact of the situation, where a thirty-three foot refrigerated trailer was loaded in Springdale, Arkansas, on Friday evening and early Saturday morning, and left Springdale approximately one o’clock Saturday morning' with a bunker full of ice; that the weather at that time, or had been the preceding day, was quite warm; that as the trailer proceeded, the blower fan was in op-eration constantly, except for short periods when the gasoline fan would run out of gas and would be filled at the next filling station; where the trucker almost completely refilled its bunker in Osceola, Iowa; where the tracker refilled its bunker completely at Albert Lea, Minnesota; and where the truck was parked in a small town near Minneapolis, Minnesota, on Sunday night, and the weather was described as a bit chilly as dawn came ; and that the blower fan unit -went out of operation some time between the hours of 11:30 and dawn and stayed out of operation until the grapes were inspected around 8:00 o ’clock Monday morning. Based on that fact of the situation, and there was approximately five hundred pounds of ice when this was cheeked after the grapes were inspected on Monday morning, this ice being in the bunker; and that the grapes-?
Appellants’ Counsel: Excuse me, I thought you were through.
Q. -the grapes had been stacked on a loading dock and were not under refrigeration before they — for some hours before they were put in the truck, based on this fact of the situation, would you tell the jury whether or not the fact that the blower fan was out of operation for the period of time stated, would have any effect on the grapes in terms of molding or in any other terms of their condition?
The Court: I’ll let him answer it.”

No actual objection was made to this question, though appellants' counsel made the statement: “I hate to keep objecting to it.” The witness started to answer, “I’ll answer it this way: If the grapes were in good shape at midnight on Sunday night-.” Appellants’ counsel then objected on the grounds that the answer was not responsive to the question, but thereafter, the following-colloquy took place:

“Appellants’ counsel: If Mr. Robinson thinks he can answer it fairly or squarely, let him answer it yes or no.
The court: Do you think you can answer it fairly and squarely?
A. I can answer it as it would concern my own business, if that would be fair and square.
The court: All right.”

The witness then answered the question as follows:

“A. If the grapes were in good condition midnight Sunday night, they would have been all right Monday morning when they opened the trailer, and the fact that they were iced at Albert Lea, if the bunker was filled there, it would indicate that the fan would have had to have been in operation somewhere between there and Minneapolis, to use up that much ice. You just don’t use the ice unless the fan is running. It’s just like being in an ice box, and it just lays there. If the fan runs, it’s using- up the ice; so if there was only 500 pounds left, that would indicate to me, based on my experience, that the fan had been in operation somewhere between Albert Lea and Minneapolis.”

No objection was made by appellants’ counsel to this answer; however, even if the objection had again been made that the answer was not responsive to the question, we would not consider such objection well taken. See Wilson & Co. v. Smith, 169 Ark. 1054, 278 S. W. 31.

Appellants first complain that this question was, in the main, propounded to the witness in the presence of the jury four different times, and this repetition resulted in prejudice to them; however, the earlier questions were objected to by counsel, and tbe objection being sustained, some repetition was necessary if tbe question were to be asked. Certainly, it does not appear tbat tbe question was indiscriminately or purposely repeated. Appellants complain tbat tbe hypothetical query was improper and prejudicial for tbe reason tbat tbe following facts-were not included:

“1. Tbe width, height and length of a ‘thirty-three' foot’ trailer.
2. Tbe storage capacity of tbe ice bunker in a ‘ thirty-three foot’ trailer.
3. Tbe kind and condition of grapes in tbe ‘thirty-three foot’ trailer.
4. Tbe distance and time to travel to Minneapolis,. Minnesota, from Springdale, Arkansas, and tbe distance- and time between re-icing stations.
5. Tbe temperature in Minneapolis on tbe morning-of August 19, 1957, at 9:00 o’clock a.m.
6. Tbe temperature of tbe grapes inside tbe truck-at Minneapolis on tbe morning of August 19, 1957, at 9:00 o’clock a.m.
7. Tbe size of tbe baskets of grapes placed in tbe trailer.
8. Tbe number of baskets of grapes that were in tbe stack inside of tbe trailer.
9'. Tbe correct time of inspection of tbe grapes on tbe morning of August 19, 1957, which was 9:00 a.m.
10. Tbe condition of tbe grapes at tbe time of departure from Springdale, and tbe outside temperature.” As to tbe first two points, there was no proof. As to point three, tbe witness bad already testified tbat be was familiar with Fredonia grapes. As to points four and five, there is no evidence. As to point seven, tbe witness bad already indicated bis knowledge of tbe size of tbe baskets (four quart), which evidence was beard by the jury. Relative to point eight, tbe witness bad already been advised tbat 5,400 baskets bad been placed in the trailer, and his answer was evidently based on that knowledge. There was no proof as to the condition of the grapes at the time of departure from Spring-dale (10), nor the outside temperature, except that it was warm. As to point nine, the evidence reflected that the grapes were inspected at approximately 8:30 or 9:00 a.m.

While it would appear that the storage capacity of the ice bunker, and the distance and time between re-icing stations, as well as the number and length of times that the gasoline motor was not functioning during the trip, would be particularly pertinent information — these matters were not included in the evidence, though the witness himself was apparently familiar with the size of the bunker. However, if appellants considered that the question did not include all pertinent information, such deficiencies could have been supplied through cross-examination. By this means, appellants could have interrogated the witness as to each condition, or each particular point raised herein, that they considered would vary or change the witness’ answer. In fact, appellants’ counsel, on cross-examination, asked the question, “Would it make any difference in your answer to the jury here, had the fan been out for a period of time, because he didn’t have gasoline to operate it?” Over objection, the trial court directed that the witness answer, but counsel withdrew the question. In Wigmore on Evidence, Yol. II, Sec. 683, page 811, we find:

“For the mode of stating the assumed premises, there is no fixed rule. Where the facts have not yet been testified to at all, there is only one way — the oral statement of the premises by counsel. But where testimony already offered is taken as the basis, either the testimony of a given witness may be read aloud, an assumption of its truth being then made, or an oral statement by counsel, in impersonal form, of such assumed premises may be used; the judge’s discretion determining the choice. ■# # #
Just as the cross-examination of an ordinary witness may involve questions which test his memory, observation, and bias, so in cross-examining one who takes the stand as a skilled witness, his judgment upon germane matters may be tested by assuming premises and asking his conclusions.”

As stated in our own case of Missouri-Pacific Railroad Company v. Hampton, 195 Ark. 335, 112 S. W. 2d 428:

“Appellants next contend that the court erred in permitting Dr. McGrill to testify to the hypothetical question that in his opinion the death of deceased was caused by the injury. The appellants’ attorney objected to the question and the court asked him on what ground. He stated: ‘ On the ground that he hasn’t given the statement that the man never claimed to be injured or given any history of the injury to the doctors who treated him or made any complaint of that kind at all.’ * # *, if appellants’ counsel thought there were any facts omitted from the question which were essential to forming a conclusion, his remedy is to put those additional facts before the ivitness on cross-examination.”

This, unquestionably, is the general rule.

The questions asked Mr. Hazel by appellee were predicated on appellee’s defense that the trailer was overloaded, and its contention that this fact was responsible for the condition of the grapes upon the arrival of the shipment in Minneapolis. Hazel testified that he had loaded grapes in the same size trailer as the one used by appellee, usually loaded from 3,300 to 3,700 boxes, that to load more fully would prevent circulation of air for the refrigeration; and that the higher the baskets of grapes were stacked, the more weight there would be on the bottom baskets. In answer to a hypothetical question, he testified that the heavy loading of the grapes in the instant case would have had an effect upon the circulation of air in the refrigeration system on the truck. We find no error. As heretofore pointed out, Hazel had over 40 years experience in shipping produce, and would appear entirely qualified to express an opinion as to the proper load to be placed in the trailer. Appellants could have exercised the same privilege with this witness as herein pointed out with reference to the witness Robinson, i.e., if the hypothetical question was incomplete, appellants’ theory could have been presented through cr o s s-examination.

Finding no reversible error, the judgment is affirmed.

       At the conclusion of the taking of testimony, appellants took a non-suit as to Thurman Parsons and Glen Parsons individually.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Childs v. Lambert.
    5-1804
    323 S. W. 2d 564
    Opinion delivered April 13, 1959.
    [Rehearing denied May 18, 1959]

      Norton Jb Norton, for appellant.

      John L. Anderson, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action by Mrs. Elnora Childs, as the wife of Gr. C. Childs, to establish and claim her homestead right in a forty acre tract of land. On November 15, 1946, Lambrook Corporation executed a contract of sale of the Northwest Quarter (NW^/i) Southeast Quarter (SE14) Section Twenty-three (23) Township Four (4) South, Range One (1) East, Phillips County, Arkansas being the North Half (N%) Tract No. 22 of the Lambrook Plantation Map and containing 40 acres more or less, to George Gillespie for a consideration of $1,700.00 payable $170.00 in cash, and nine (9) annual payments of $170.00 each, on November 15, 1947 to November 1955 inclusive, with six percent (6%) interest at the due date of each installment. Thereafter, on December 11, 1950, G. C. Childs (husband of Elnora) bought Gillespie’s interest in the contract in question for a consideration of $500.00 in cash and executed three notes to Gillespie. The assignment-of this contract to Childs was typed on the contract at Lambert’s dictation and signed in his office. Appellants, Childs and his wife, with their children immediately (December 11, 1950) moved onto the forty acres where they remained continuously from that time until they were evicted by Lambert in December 1955. The record reflects that between December 1950 and the time of the eviction of Childs and his wife, there were other transfers of the contract of sale from G. C. Childs to a Mr. Barron, from Barron to the Helena National Bank, and from the Bank to Lambert. It appears undisputed that Elnora Childs was not a party to any of the transactions between her husband and the Gillespies, or Barron, or the Bank. She was present and appears to have acquiesced in the negotiations by her husband with the Gillespies, (George and Lulu) for the purchase of the forty acre tract in December 1950. The present suit was filed December 6, 1955, one day following her eviction from the house by Lambert. She sought, as the wife of G. C. Childs, to establish her rights which attached to his equitable estate under the homestead law, sought an accounting from Lambert under the contract of sale of the forty acres and that, <£He be charged with the rental value of the said farm land for the year 1955 and the rental value of the dwelling thereon situated, with interest, etcuntil possession should be restored to her and that she be allowed a reasonable time to redeem the property by payment of any balance due Lambert thereon”. Upon a hearing, the trial court dismissed her complaint for want of equity and quieted title to the property in J. B. Lambert. From this decree both Elnora Childs and her husband have appealed.

As indicated above, Lambert in 1946 under a sales contract sold this forty acre tract to the Gillespies and they in turn, on December 11, 1950, sold and assigned, for a valuable consideration, all their interest in the tract of land to G. C. Childs, Elnora’s husband. The Childs, on December 18, 1950, moved on the property, took possession and remained on it until they were evicted by Lambert in December 1955. It further appears that on December 15, 1954, Childs went to Lambert and agreed to cancel the sales contract and release the property in effect for a consideration of $110.35 which Childs was then due Lambert. His (Childs’) wife was not present and did not agree to this release in any manner. The sales contract in question contained these provisions:

“Transfer of Contract. It is agreed that this contract shall not be transferred or assigned unless all amounts due at that time shall have been paid and unless the seller consents to such transfer in writing.
“Default. If default be made in payment of general or special taxes or any installment of the purchase price or the interest thereon, then, in that event or either of them, the whole of said purchase price shall at the option of the seller become immediately due and payable and this contract may be terminated at the option of the seller. If this contract is cancelled because of default all payments shall be forfeited as liquidated damages.” The contract has no provision that “time shall be of the essence” of the undertakings of either party.

It appears to be no longer questioned that an equitable estate will support the right of homestead and form a sufficient basis under the law for the claim of homestead, hence the Childs had a homestead in the land they were buying from Lambert (the Lambrook Company). We said in Watson v. Poindexter, 176 Ark. 1065, 5 S. W. 2d 299, “. . . It is no longer questioned that an equitable estate will support the homestead right and form a sufficient basis under the law for the claim of homestead. Spaulding v. Haley, 101 Ark. 296, 142 S. W. 172; Kirby v. Vantrece, 26 Ark. 370.

“It is also true that a married man cannot make a valid conveyance of the homestead if his wife fails to join in the execution of the deed, and that he cannot even make a contract to convey the homestead which would be obligatory upon the wife or of any validity, without her joining in the execution of such instrument. Section 5542, C. & M. Digest”. Section 5542 is now Section 50-415 Ark. Stats, and provides: “No conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.”

We said in the case of Spaulding v. Haley, 101 Ark. 296, 142 S. W. 172, “. . . The next question for our consideration is, whether the widow and minor children can claim homestead in lands occupied by the deceased husband or father under a contract for the purchase thereof, a portion only of the purchase money being paid. The decisions in other States are somewhat conflicting as to whether an equitable estate will support the homestead right, hut we consider the question settled by decisions of this court (Rockafellow v. Peay, 40 Ark. 69; Robson v. Hough, 56 Ark. 621; Stull v. Graham, 60 Ark. 461) holding that an equitable estate is sufficient as a basis of the homestead claim. The right of the widow or children, being derivative, finds a like support in an equitable estate held as a homestead by the husband or father.”

We hold, therefore, that Childs could not permit a forfeiture of the purchase contract and abandon it without his wife’s joinder. Especially is this so when as here, Mrs. Childs did not agree to the forfeiture by not signing the contract in the first place. Southern v. Linville, 139 Kan. 850, 33 Pac. 2d 123; Perry v. Ross, 104 Cal. 15, 37 Pac. 757; Ter Keurst v. Zinkewics, 253 Mich. 383, 235 N. W. 191. We think, therefore, that Mrs. Childs, in the circumstances here, was entitled to perform for her husband the purchase contract made by him in order to save her interest in the homestead. McKee v. Wilcox, 11 Mich. 358, 83 Am. Dec. 743.

In Lessell v. Goodman, 97 Iowa 681, 66 N. W. 917, the husband was buying a homestead under a contract that made time of the essence and provided for a forfeiture in case of default. The husband (as here) fell down on his payments and signed a written statement acknowledging that the contract was forfeited. The court held that the forfeiture was not binding on the wife, who was entitled to complete the purchase despite the default. After reviewing the record, we are convinced that the preponderance of the testimony shows that Mrs. Childs is not estopped to assert her claim to homestead rights in the property.

Accordingly, the decree is reversed and the cause remanded with directions to grant Mrs. Childs a reasonable time in which to redeem and for further proceedings consistent with this opinion.

Harris, C. J. and MoFaddin, J., dissent.

Ed. F. McFaddin, Associate Justice

(Dissenting).

The fault in the majority opinion is, that it is giving the wife — Eluora Childs — a homestead right in a non-existent estate, because G-. C. Childs’ rights under the contract were forfeited when he defaulted. We held in Collum v. Hercey, 176 Ark. 714, 3 S. W. 2d 993, that a judgment against the husband was binding on the wife, even though she was not a party to the litigation. The rationale of that holding; is applicable here: when Lambert declared the contract forfeited — as he had a right to do —■ then all interest of Q-. C. Childs was forfeited, and left nothing for his wife to claim as homestead.

It is my view that the case at bar is ruled by such cases as Souter v. Witt, 87 Ark. 593, 113 S. W. 800; and White v. Page, 216 Ark. 632, 226 S. W. 2d 973; and cases therein cited. This was a simple sale and rent contract whereby Childs could have acquired the title if he had performed the condition precedent. He did not perform. In Souter v. Witt (supra), this Court said of a contract like the one here: “It is also equally certain that, when the contract is made to depend on a condition precedent —in other words, when no right shall vest until certain acts have been done, as, for example, until the vendee has paid certain sums at certain specified times — then also a court of equity will not relieve the vendee against the forfeiture incurred by a breach of such condition precedent. ” In White v. Page (supra), we said: “The contract in the case at bar did not state in express words, ‘time is of the essence’; but our cases hold that evidence may establish such fact in the absence of a specific statement in the contract.” The evidence in the case at bar in this regard is just as strong as that in White v. Page, where we held that there had been a default and a forfeiture.

In Hanson v. Brown, 139 Ark. 60, 213 S. W. 12, the Court considered a contract of sale and rent in which there was a default and a forfeiture, just as here; and this Court said: ‘ ‘ For the reasons already given, it is apparent that Mrs. Hanson had no homestead interest in the lands ...” I maintain that Elnora Childs had no homestead right in a nonexistent estate; and it was certainly nonexistent when G. C. Childs defaulted and Lambert declared the forfeiture.

For these reasons, I respectfully dissent; and the Chief Justice joins mo in this dissent.


text:
    Credit Industrial Co. v. Blankinship.
    5-1801
    323 S. W. 2d 198
    Opinion delivered April 13, 1959.

      J. R. Wilson and Paul K. Roberts, for appellant.

      G. G. Hollensworth, B. Ball and Glint Huey, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellants, Credit Industrial Company (hereinafter called “Credit”) and Equitable Discount Corporation (hereinafter called “Equitable”), filed claims against the Estate of Garland R. Blankinship, deceased; the Bradley Probate Court disallowed the claims; and this appeal ensued. We will sometimes also refer to Credit and Equitable as ‘ ‘ Claimants ’ ’.

Garland P. Blankinship was engaged in business in Warren under the name of Farmers Supply Company; and his son, Fred Blankinship, was associated with him in the business. On July 14,1950, Farmers Supply Company purchased certain roofing materials from Sterling Materials Company of New York City; and in payment for said purchased items Farmers Supply Company, acting by Fred Blankinship, executed six trade acceptances to Sterling Materials Company. These six trade acceptances were for amounts and due as follows:

No. 1 $245.00 due September 1, 1950
No. 2 $245.00 due October 1, 1950
No. 3 $245.00 due November 1, 1950
No. 4 $490.20 due December 1, 1950
No. 5 $490.20 due January 1, 1951
No. 6 $490.20 due February 1, 1951

Trade acceptances numbered 1, 2, and 3, were sold, endorsed, and delivered by Sterling Materials Company to Credit for value received on July 18, 1950; trade acceptance No. 1 was paid by Farmers Supply Company when due; but trade acceptances numbered 2 and 3 have never been paid, and are the basis of Credit’s claim in this litigation. Certain credits were allowed by Sterling Materials Company on trade acceptances numbered 4, 5, and 6, so that the net balance due on these three trade acceptances on August 16, 1950 was $1,029.42, for which amount the said three trade acceptances (numbered 4, 5, and 6) were sold, endorsed, and delivered to Equitable on August 16, 1950. Farmers Supply Company never paid any of tire said three acceptances held by Equitable; and they are the basis of Equitable’s claim in this litigation.

Garland II. Blankinship departed this life testate on November 28, 1955, and Curtis Blankinship and R. A. Lile were appointed executors of his estate on December 10, 1955. The claims of Credit and Equitable were duly filed with the executors; and finally disallowed by judgment of the Bradley Probate Court on May 23, 1958. The Probate Court held: (1) that the original trade acceptances were lost; and (2) that there was no proof that the photostatic copies offered in evidence were copies of the trade acceptances that had been signed by Fred Blankinship. From the judgment of disallowance there is this appeal, which we review de novo on the record, just as we do chancery appeals. Campbell, Admr. v. Hammond, 203 Ark. 130, 156 S. W. 2d 75; Morris v. Arrington, 215 Ark. 564, 221 S. W. 2d 406; Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495.

In so reviewing, we reach the conclusion that, under the facts and circumstances here shown, the claims of Credit and Equitable should be allowed. The original trade acceptances were lost while in custody of the law; and the claimants have made due proof of the original instruments. The fact, that there were trade acceptances in amounts and in all respects like those involved in this case, has never been denied; nor has it been claimed that such trade acceptances, as executed, have ever been paid. If the lost trade acceptances should ever be found, they would now be barred by limitations: so the estate of Blankinship cannot suffer unjustly by paying these just claims. German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401. A summary of the two earlier cases, involving these same trade acceptances, is enlightening:

FIRST CIRCUIT COURT CASE: on December 22, 1951 claimants filed action in the Bradley Circuit Court against Garland R. Blankinship, doing business as Farmers Supply Company. This was Case No. 1774. The depositions of the officers of Credit and Equitable were taken in New York City as to the ownership and nonpayment of the trade acceptances. Photostatic copies of the trade acceptances were attached to the depositions and the original trade acceptances were sent to Mr. Roberts, the Arkansas attorney for the claimants. When the case No. 1774 came for trial in the Bradley Circuit Court on September 8, 1953, Mr. Blankinship’s attorney objected to the introduction of the photostatic copies as not being the best evidence, which objection was sustained. The original trade acceptances were offered by Mr. Roberts. When objections were made, Mr. Roberts took a non-suit; and that ended Case No. 1774.

SECOND CIRCUIT COURT CASE: On August 12, 1954, well within one year after taking the nonsuit (§ 37-222 Ark. Stats.), claimants filed, in the Bradley Circuit Court, Case No. 1854 against Garland R. Blankinship, doing business as Farmers Supply Company. This action was on the same trade acceptances as those involved in Case No. 1774. In Case No. 1854 the depositions of the officers of Credit and Equitable were taken in New York, and the original trade acceptances were attached to the depositions, and sent to the Clerk of the Bradley Circuit Court and received by him. This fact is not denied by the splendid gentleman who was the Clerk; and is positively sworn to by Mr. Roberts, who testified in the present case:

“That suit was filed some time in 1954. Later on, the plaintiff took some more depositions in New York and at that time attached the original Trade Acceptances to the depositions and they were mailed to the Clerk of Bradley County Circuit Court. Those depositions were received by the Clerk and the Clerk put those depositions — to my own knowledge he put those depositions in a certain Vault — in the Big Vault downstairs.”

After the death of Mr. Garland R. Blankinship, the claimants filed their claim with the executors, based on the then pending Case No. 1854 in the Bradley Circuit Court; and in the affidavit it was stated that the claim was “. . . based upon certain trade acceptances, which acceptances are held by the Clerk of the Circuit Court, and are subject to the inspection of the Court”. A non-suit was taken in Circuit Court Case No. 1854; and when the claim was prosecuted in the present Probate proceedings, it was discovered that all the Court files, depositions, and exhibits in Circuit Court Case No. 1854 had been lost. No explanation of the loss has ever been made; but we hasten to state that nothing herein is a reflection on the integrity of any attorney or court official.

So much for the Circuit Court cases: now, we revert to the present Probate proceedings. When the claimants discovered that the original trade acceptances and depositions had been lost while in the custody of the Circuit Court, the claimants then took, in the present case, the deposition of the officers of Credit and Equitable. They had photostatic copies of the original trade acceptances ; and these photostatic copies were made exhibits to the depositions in the present case. The claimants filed requests for admissions (§ 28-358 Ark. Stats.), which requests were not denied; and when the case came for trial in the Probate Court, the executors offered no evidence to disprove that offered by the claimants.

We hold that the claimants sufficiently established the loss of the original trade acceptances so as to make the photostatic copies admissible as lost instruments. There is no need for us to go into a detailed discussion of a suit on lost instruments. (See § 27-207 Ark. Stats.) In C.J.S. Yol. 26A, page 432 “Depositions” § 87, the text reads:

“Where a deposition has been lost or destroyed, the contents thereof may be proved as in the case of other lost or destroyed papers, or a properly identified or authenticated copy may be substituted and read, provided the original deposition had been duly returned and filed. ” There are several legal maxims that are worthy of consideration as applicable here, since the original trade acceptances were lost while in custody of the law: “An act of the Court shall prejudice no man” and again, “An act in law shall prejudice no man”. The claimants should not suffer because the loss of the original trade acceptances occurred while the instruments were in the custody of the law.

The judgment of the Probate Court is reversed and the cause is remanded, with directions to allow the claims of the claimants, together with interest and costs.

       In disallowing the claims of Credit and Equitable in this case, the learned Judge wrote a 14-page opinion, filed on May 23, 1958, which is in the transcript and which has proved helpful to this Court for a better understanding of some of the facts involving the trade acceptances, and the loss of the originals. The Chancellor said in part: “The claimants purchased the trade acceptances for a valuable consideration, before maturity, in the usual course of trade, in good faith, without any notice of any infirmity . . . There was introduced into the record in this proceeding photostatic copies of the original trade acceptances which were purchased by the claimants from the Steiling Materials Company, Inc. There was no proof offered that these photostatic copies of the original trade acceptances so purchased by the claimants from the Sterling Materials Company, Inc., were the identical trade acceptances which were made, executed and delivered by Fred Blankinship on behalf of the Farmers Supply Company on July 14, 1950, to the Sterling Materials Company, Inc.: that is to state, there was no proof of execution . . . The original trade acceptances which the claimants had purchased from Sterling were lost. Copies or photostatic copies of these were allowed introduced into the record as copies of the originals which claimants had purchased from Sterling. There was no proof by Sterling or by any of the witnesses for the claimants that these were the trade acceptances which were executed by Farmers Supply Company to Sterling in 1950. It is admitted that certain trade acceptances were executed and delivered by Farmers Supply to Sterling in July 1950, but there is no effort made to connect these with the proffered trade acceptances except by dates, amounts, name of payee, due dates, name of instrument, name of payor.”

       Here is the wording of the objections: “The defendant objects to the introduction of the alleged original five trade acceptances for the reason that the testimony of Joseph Goodwin and Samuel Salitan taken by deposition on behalf of the plaintiff clearly indicates that the original instruments on which they were basing their claim were in their possession, were before them, and they had opportunity at the time the depositions were taken to introduce the originals if they so desired and had ample opportunity to identify the originals if they so desired, but without any explanation for it plaintiffs withheld the alleged original instruments and have introduced secondary evidence, that is, photostatic copies, and they have not conformed to the best evidence rule in taking the depositions, and that at the trial of the case they are too late to introduce the originals if they are originals, that tliey have not been identified as originals, that in fact by the evidence of the plaintiff they have been discredited . . . No one has claimed that these are the original instruments. It is not in the record. There is no where in this record that these instruments are the ones being sued on.” These objections are copied from an exhibit that was certified by the Court Reporter on July 23,1954, and preserved by the claimant’s attorney. This exhibit is the only portion of Case No. 1774 that has not been lost.

       Broom’s Legal Maxims 9th Ed. page 85.

         id. page 87. See also “Maxims” in Bouvier’s Law Dictionary.