author: George Rose Smith, Justice.

text:
    GREINER MOTOR COMPANY v. K. S. SUMPTER et ux
    5-4547
    427 S. W. 2d 8
    Opinion delivered April 29, 1968

      Shaw & Bedwell, for appellant.

      Sam Sexton, Jr. and Bill B. Wiggins, for appellees.
   George Rose Smith, Justice.

On September 1, 1966, K. S. Sumpter and his wife, the appellees, bought a supposedly new Pontiac Tempest car from the appellant. A number of repairs to the motor and transmission soon became necessary. Eventually the Sumpters learned that the car had not been a brand-new vehicle when they bought it. They elected to keep the car and bring .this action for damages resulting from the seller’s misrepresentations. This appeal is from a verdict and judgment awarding the plaintiffs $1,497 in damages.

Greiner contends primarily that it was entitled to a directed verdict, because it insists that the car really was new at the time of the sale. That argument is based upon proof that the Sumpters received a new-car .warranty and that title to the vehicle had not been transferred to any other buyer .before the sale to the Sump-ters. The seller argues that those facts show that the car was actually new, so that its salesmen’s statements to that effect were true.

It may be that automobile dealers regard such a vehicle as new, but the jury were entitled to take a more realistic view. Greiner bought the car in December of 1965, more than eight months before the sale to the Sumpters. In that interval the car was used by Greiner both as a rental vehicle and as a demonstrator. Moreover, according to the undisputed proof, the car was stolen and kept by the thief for some six weeks, eventually being recovered in Arizona. The odometer then showed more than 7,000 miles of travel. The seller turned that reading back to about 150 miles, put new tires on the car, cleaned it up in other respects, and represented it to be a new vehicle. In view of that proof it was evidently for the jury to say whether there were fraudulent misrepresentations in the sale.

Secondly, Greiner, citing Union Motor Co. v. Turbiville; 223 Ark. 92, 264 S. W. 2d 592 (1954), insists that the court should have instructed the jury that the measure of the plaintiffs’ damages was the difference between the recited contract price of $2,400 and the actual value of the car at the time of the sale. Instead the court submitted to the jury the measure of damages that we approved in Union Motors v. Phillips, 241 Ark. 857, 410 S. W. 2d 747 (.1967), being the difference between the market value of the car as warranted and its market value in its condition at the time of the sale.

The Turbiville measure of damages has the merit of simplicity, but the rule of the Phillips case often achieves complete justice by disregarding the contract price, thereby preserving to the purchaser the advantage he may have gained by driving what would have been a bargain if the car or other chattel had been all that the seller represented it to be. Both rules have been applied in Arkansas. See Casenote, 1 Ark. L. Rev. 308 (1947).

In the case at bar the court properly adopted the Phillips standard, because the recited contract price of $2,400 was not the real price paid by the Sumpters. The president of the appellant company testified that he paid $2,647.30 for the car and that the suggested list price was $3,267.63. That list price was noted by the salesman on the Sumpters’ invoice, which also recited a cash price of $2,400. The witnesses accounted for the discrepancy by explaining that, as a means of reducing the sales tax due the State, both the recited price of the Pontiac Tempest and the recited eredit allowed for the Sumpters’ trade-in had been reduced by the seller in the preparation of the contract documents. Hence the court was right, in fairness to the purchasers, in disregarding what was a fictitious contract price and submitting instead a measure of damages based upon actual values.

What we have just said pretty well answers Grei-ner's third contention, that the verdict is excessive. According to Greiner’s own witnesses the car should have been worth more than the $2,647.30 that Greiner paid for it. Mr. Greiner testified that he would have tried to get $2,950 for the car. An expert witness appearing for the buyers fixed the value of the car on the. sale date at between $1,250 and $1,300. Even though the appellant’s brief refers to that testimony as “patently unbelievable, ’ ’ we see no reason why the jury were not justified in accepting it — the issue being one of opinion.

Finally, it is argued that the court erred in answering a juror’s inquiry about whether it is a criminal offense “to roll back a speedometer.” We find no error, not only because the court did not give a positive answer to the question, but also because there was no objection to the court’s statement.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Raymond Henry ATWELL v. STATE of Arkansas
    5341
    427 S. W. 2d 1
    Opinion delivered April 29, 1968

      Garner & Parker, for appellant.

      Joe Purcell, Attorney, General; Don Langston, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged' with the crime of sodomy, found guilty, and sentenced to ten years imprisonment. He argues five points for reversal.

I. On complaint of the prosecuting witness, Atwell was arrested within a few moments after the commission of the offense, taken to police headquarters, and interrogated in the presence of several officers. He insists that the court erred in allowing the State to introduce an admission of guilt that was assertedly made in the course of the questioning.

We find no error. The trial judge, in compliance with the rules announced in Jackson v. Denno, 378 U. S. 368 (1964), first heard the witnesses in chambers and made a finding that the confession was voluntary. There is ample evidence to support that conclusion. One of the police officers present during the interrogation was the accused’s brother. That officer’s failure to testify at the trial is a persuasive indication that the accused’s constitutional rights were not infringed. Moreover, the defendant admitted on cross-examination that he was informed of his rights and that thereafter he did make an admission of guilt.

II. There is no merit in the contention that the prosecuting witness should not have been permitted to testify that Atwell had served a term in the penitentiary upon a conviction for rape. Atwell’s counsel had already told the. jury during their voir dire examination that his client had been in the penitentiary. The testimony was competent, as it tended to show that the prosecuting witness participated in the crime from fear and therefore was not an accomplice. Finally, the correctness of the court’s ruling is not in issue on appeal, because no exceptions were noted. Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382 (1965).

III. We cannot sustain the contention that the ten-year sentence fixed by the jury is excessive. The statute provides a maximum penalty of twenty-one years. Ark. Stat. Ann. § 41-813 (Repl. 1964). With respect to the argument now being made we have said: “If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.” Osborne v. State, 237 Ark. 5, 170, 371 S. W. 2d 518 (1963).

IV. It is asserted that after the jury had returned its verdict the trial judge made remarks derogatory to the accused. Perhaps so, hut whatever the court may have said was not made a part of the record on appeal and is therefore not before us. We have, however, examined the trial proceedings with care and find nothing to indicate any lack of fairness or impartiality on the part of the presiding judge.

V. In a motion for a new trial on the ground of newly discovered evidence counsel merely stated that four named witnesses “will he in a position to testify as to the circumstances existing” at the time and place of the offense. Since the motion does not state the substance of the witnesses’ expected testimony it fails to meet the requirement that the newly discovered proof be of such a nature that it probably would change the result reached at the first trial. Bixby v. State, 15 Ark. 395 (1854). Hence the motion was properly denied.

Affirmed.


author: Paul Ward, Justice.

text:
    Jimmy CHERRY and Motors Insurance Corporation v. Danny VINSON
    5-4590
    427 S. W. 2d 17
    Opinion delivered April 29, 1968

      Shaver, Tackett & Jones and Terral, Rawlings, Matthews & Purtle, for appellants.

      George E. Steel and McMillan, Teague, Bramhall & Davis, for appellee.
   Paul Ward, Justice.

This litigation arises out of an automobile collision.

Jimmy Cherry, appellant, filed a complaint against Danny Vinson, appellee, alleging, in material parts: The collision occurred on Hospital Road in Nashville; that appellee was negligent in failing to keep a proper lookout; in stopping his car in such manner as to create "a danger to motorists, and in refusing to abide by traffic laws. He alleged and asked for the following damages: $2,414 for damage to his car; $546 for medical and hospital expenses; and, $23,000 for loss of earnings. A few days later Motors Insurance Corporation also filed a complaint (in the same court) against appellee, alleging that it had issued its policy to appellant covering his damaged car, that it had already paid him $2,371.50 in full settlement, and that it was subrogated to the rights 'of appellant. Its prayer was for judgment in the said amount against appellee.

To the above complaints appellee alleged that the alleged injuries and damages were caused by the negligence of appellant.

A jury trial resulted in a verdict in favor of Cherry for $800 against appellee. The jury made no finding in favor of Motors Insurance. Both parties now prosecute this appeal, alleging two points for a reversal: One, the trial court erred in refusing to admit certain testimony. Two, the verdict of the jury was contrary to the court’s instruction.

One. It is our conclusion that the case must be reversed on this point. One of the specific acts of negligence with which appellee was charged was that he improperly parked oh the street in violation of traffic rules and regulations. After the collision a traffic officer made an investigation. Appellants offered to introduce testimony to show appellee pleaded guilty in the Nashville City Court to a charge of “improper parking”, and it was refused by the trial court. We think the jury had a right to consider this testimony for what it was worth on the issue of comparative negligence as between appellee and appellant, Cherry. In Harbor v. Campbell, 235 Ark. 492, 360 S. W. 2d 758, the applicable rule was announced as follows:

“A plea of guilty for traffic violation for the identical traffic mishap is certainly a declaration against interest; and such plea of guilty is as admissible as any other declaration against interest in any other case.”

Two. Since the case must be reversed on point One the cause of action must be retried as to all parties. In view of that situation we merely point out [as was pointed out by the trial court] that if the jury finds against appellee for any amount in favor of Cherry it must also find against appellee in some amount in favor of Motors Insurance Corporation under the admitted facts in the record before us.

Reversed and rémanded.


author: Lyle Brown, Justice.

text:
    Eddie James BOOKER v. The STATE of Arkansas
    5331
    427 S. W. 2d 177
    Opinion delivered April 29, 1968
    [Rehearing denied May 27, 1968.]

      George Howard Jr., for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Eddie James Booker was convicted of robbery. He asserts error by the trial court (1) in denying bis motion for severance, (2) failing to direct a verdict in Ms favor, and (3) refusing to grant a new trial on newly discovered evidence.

Three teenage boys, residents of Pine Bluff, were on their way to a basketball game. It was December and the hour was approximately 7:15 p.m. They were accosted on a street in Pine Bluff by two young men armed with a gun and a knife. (There was a third confederate but he was never identified.) Under threat of violence the teenagers were relieved of a watch,, tvk) coats, and one dollar. As each of the three victims left the scene, one by one, they heard shots coming in their direction. One of the victims, a recent high school graduate, testified he was able to see Booker’s face and to note also that he wore a cap and a blue shirt. On the following.morning the same boy also identified Booker at the jail. The other two victims could not identify Booker.

(1) Denial of motion for severance.. The basis, of the motion was that Booker was being tried jointly with a convicted felon who had been returned from the penitentiary for the trial. There is not an iota of evidence in the record that the jury had any knoAvledge of the co-defendant’s status as a felon. They were charged jointly. Ark. Stat. Ann. § 43-1801 (Jtepl. 1964). There is no showing of abuse of the trial court’s discretion and we do not disturb the ruling. Nolan v. State, 205 Ark. 103, 167 S. W. 2d 503 (1943).

(2) Court’s failure to direct a verdict. The robbery was established and one of the three victims identified Booker. The latter testified he was not in the vicinity of the robbery. We hold the State’s evidence was substantial and that it was for the jury to resolve the facts.

(3) Court’s refusal to grant a new trial on netoly discovered evidence. The motion was bottomed on the testimony of a witness who testified he was told by one Thomas Miller that Miller in fact committed the robbery with which Booker was charged. The testimony was conflicting; in fact, the State’s evidence raised substantial doubt as to Miller’s veracity. It would border on facetiousness to say that the trial court did not act in sound discretion.

To recount the testimony in detail would be of no importance to the bench and bar; suffice it to say that the record has been carefully examined and we find no merit in appellant’s contentions.

Affirmed.


author: John A. Fogleman, Justice. Conley Byrd, Justice,

text:
    Ralph Burk SHADDOX v. STATE of Arkansas
    5338
    427 S. W. 2d 198
    Opinion delivered April 29, 1968
    [Rehearing denied May 27, 1968.]

      Robert O. Brackman, Donald J'. Adams, for appellant.

      Joe Purcell, Attorney General; Lon Langston, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This is the second appeal of this case. On the first appeal, the conviction of Shaddox of the offense of assault with intent to kill was reversed because of the refusal of the trial court to grant a mistrial for impropriety in the cross-examination of appellant by a special prosecutor. On the first trial, appellant’s punishment was fixed by the jury at five years imprisonment. Upon retrial, appellant was again found guilty of assault with intent to kill, hut the jury was unable to agree upon the punishment. The trial judge then sentenced appellant to three years in the State Penitentiary. Appellant asserts as reversible error: (1) the court’s instruction and form of verdict stating the applicable sentence to be not less than 1 nor more than 21 years; (2) refusal of a mistrial because of a statement by a special prosecutor in closing argument; (3) denial of a directed verdict or, in the alternative, reduction of the charge to a misdemeanor. We will discuss these points in the order listed.

I

Appellant argues that the fixing of his punishment on the -first trial amounted to an acquittal of any and all punishment over and above 5 years imprisonment and that subjecting him to the possibility of punishment in excess of that term amounts to double jeopardy. Since the length of the sentence imposed was actually 2 years less than that imposed by the jury on the first trial, appellant was not prejudiced, even if appellant should be right in his contention. Error in the giving of an instruction on a higher degree of an offense than is justified is rendered moot when the jury convicts a defendant of a lower degree. Willis v. State, 221 Ark. 162, 252 S. W. 2d 618. The analogy is so close that the same rule is properly applicable to both cases.

II

Not only did appellant elect not to testify in his own behalf on the new trial, but he offered no admissible evidence whatever. In the closing argument, the special prosecutor made the following statement with reference to the intent of appellant:

* * Now, how could even, how could these fine attorneys for the. defense reasonably argue to you that he did not intend to inflict serious harm upon Younes, he said he did. He said ‘Johnny, Blankety-blank I’ll kill you.’ And nobody has attempted to explain that away, in fact, I guess they couldn’t.”

Objection and motion for a mistrial were based on the contention that this amounted to a comment on the appellant’s failure to take the witness stand.

This court has held many times that such remarks as were made here do not constitute a comment on the defendant’s failure to testify. In Davis v. State, 96 Ark. 7, 130 S. W. 547, a prosecutor’s remarks that the defendant had told two witnesses how he had administered medicine to produce an abortion, followed by the statement that, “* * * it is undisputed and undenied and he cannot deny it,” were expressions of opinion as to the weight of the testimony of the witness which could not be construed as a reference to the fact that the defendant had not testified. In Culbreath v. State, 96 Ark. 177, 131 S. W. 676, a statement that a defendant had never seen fit to say where he was on the day of a murder and that he had not shown by anyone where he was at the time, was held not to be a comment on the defendant’s failure to testify. A statement by a prosecuting attorney asserting that a conversation by a defendant was unexplained and undenied by anyone and calling on “them” to explain it, if untrue, was held to be an expression of opinion that the testimony, not being rebutted, should be accepted as true and not a comment on the failure of the defendant to testify. Davidson v. State, 108 Ark. 191, 158 S. W. 1103. When a prosecuting attorney referred to a coat of an alleged accomplice which had been found in a defendant’s car and asked, “What explanation have they made of that?”, this Court said that this argument was not a comment on the defendant’s failüre to testify. Cascio v. State, 213 Ark. 418, 210 S. W. 2d 897. In Edens v. State, 235 Ark. 996, 363 S. W. 2d 923, also a case where the defendant offered no proof, a statement by a prosecuting attorney in closing argument that the State’s evidence was undenied was said to be a contention that the testimony should he believed because it was uncontradicted.

¡

These Remarks called to the jury’s attention the impact of appellant’s statement as evidence of intent and as contravention of the theory of self-defense raised'by him. Clyde Loftin, who was present during .the entire encounter, told of this statement by appellant. No witness, other than Younes and Loftin, testified relative to appellant’s remarks. The argument in question relates, to appellant’s statement and the argument of his attorneys, which would have inevitably presented the facts and inferences which they thought would justify the theory of self-defensfe and indicate a lack of the element of intent on the part of appellant. We find no error on this point. Perry v. State, 188 Ark. 133, 64 S. W. 2d 328, Bridgman v. State, 170 Ark. 709, 280 S. W. 982, Starnes v. State, 128 Ark. 302, 194 S. W. 506, Lee v. State, 73 Ark. 148, 83 S. W. 916, and Evans v. State, 221 Ark. 793, 255 S. W. 2d 967, cited by appellant, are distinguishable. In some of these cases the attorney for ¡the prosecution had stated that the defendant himself had failed to deny certain testimony. In others the prosecutor stated that the defendant had failed to give certain testimony. In others the prosecuting attorney, in argument, had addressed to the jury or to the de-

III

No useful purpose would be served by outlining the evidence in this case. It is substantially the same as we found sufficient to sustain a conviction on the previous appeal. We again find it sufficient. Appellant’s alternate request that the court reduce the charge to a misdemeanor was also properly refused. The trial judge instructed the jury thoroughly as to the elements necessary to constitute the crime nf assault with intent to kill. He also defined and distinguished the crime of aggravated assault or assault with a deadly weapon. The determination of appellant’s intent was a question of fact for the jury. The principal argument advanced by appellant on this point is that on this trial Younes admitted not only that he was willing to do whatever was necessary to take the money appellant owed him even if that included doing Shaddox bodily harm, hut that he thought that Shaddox thought that he so intended. Of course, it was the province of the jury to determine under all the facts and circumstances of this case whether appellant intended to kill Younes, or only inflict bodily injury; whether any considerable provocation for his action appeared; whether appellant acted in a sudden heat of passion upon sufficient provocation; whether Shaddox was acting without fault or carelessness in defending himself from assault by Younes; whether it appeared to Shaddox that the degree of force used by him was reasonably necessary in repelling such an assault; whether he was justified in believing that the danger of bodily harm at the hands of Younes was imminent and impending; whether he acted under the influence of reasonable fears, or in a spirit of revenge; and whether appellant acted with due care and circumspection. All these matters were submitted to the jury under proper instructions and have been resolved against appellant.

Finding no prejudicial error, the judgment is affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I disagree with the majority view because in my opinion Mr. Shouse, the special prosecutor, commented upon the defendant’s failure to take the witness stand.

At the scene when the shooting occurred were only three people: the defendant Ralph Shaddox, the prosecuting witness Johnny Younes, and Clyde Loftin, owner of the service station. Witnesses Younes and Loftin were called- and testified in behalf of the prosecution. Defendant Shaddox did not take the witness stand. In this setting Mr. Shouse, in his argument to the jury, stated:

“And there is another thing, and to me it is very significant, most all that this Johnny Younes did was took hold of his shirt, of course, intending to pull him out of the car; Shaddox pulled back knd his shirt was torn and that is all that was done, up to the time of the shooting; then, Shaddox comes up with a gun and shoots him and he shot him in a vital part, the lung, which shows intent to kill, of course, and what did. he say, he says, ‘God-damn,’ I believe he used an oath, ‘Johnny, I’ll kill you’ which shows that he had kill, kill in his mind. Now, how could even, how could these fine attorneys for the defense reasonably argue to you that he did not intend to inflict serious harm upon Younes, he said he did. He said ‘Johnny, blankety-blank I’ll kill you.’ And nobody has attempted to explain that away, in fact, I guess they couldn’t.”

When the special prosecutor, Mr. Shouse, said, “AND NOBODY HAS ATTEMPTED TO EXPLAIN THAT AWAY, IN FACT I GUESS THEY COULDN’T,” he could have been referring to “nobody” but the defendant Shaddox, who did not take the witness stand. Everybody else had already explained the shooting.

What the jury may infer on its own from the defendant’s failure to take the witness stand is one thing, but what it may infer when the prosecutor argues his silence as evidence is quite another. The former is a necessary evil following from the accused’s presence at the trial, but the latter is forbidden by the Fifth Amendment to the United States Constitution. Griffin v. California, 380 U. S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965).

Therefore I respectfully dissent.


author: J. Fred Jones, Justice.

text:
    STATE of Arkansas v. Eugene JARVIS and Noble Jarvis
    5318
    427 S. W. 2d 531
    Opinion delivered April 29, 1968
    [Rehearing denied May 27, 1968.]

      Joe Purcell, Attorney General; David Hodges*, Asst. Atty. Gen., for appellant.

      Pickens, Pickens & Boyce and Kenneth H. Castle-berry, for appellees.
   J. Fred Jones, Justice.

Eugene and Noble Jarvis were separately found guilty in the Municipal Court of Newport in Jackson County, Arkansas, on two separate charges of selling or giving intoxicants to minors. They each were fined $150.00 and costs in the Municipal Court and appealed to the Jackson County Circuit Court where the cases were consolidated by agreement. When the case came on for trial in the circuit court, the defendants filed a motion to dismiss because “there is no such crime ‘as selling to minors.’ ” The trial court granted the motion and dismissed the charges. The state has appealed and relies on a single point for reversal:

“Arkansas statute 48-903 did not repeal Arkansas statute 41-1117.”

Arkansas Statutes Annotated § 41-1117 (Repl. 1964) is digested under chapter 11 having to do with criminal offenses pertaining to children. This section was enacted on March 8, 1879, amended in 1889, and having survived the 18th amendment to the Federal Constitution, it remains as follows:

“Any person who shall sell or give away, either for himself or another, or be interested in the sale or giving away of any ardent, vinous, malt or fermented liquors, or any compound or preparation thereof called tonics, bitters or medicate^ whiskey, to any minor, without the written consent or order of the parent or guardian, shall be deemed guilty of a misdemeanor, and on conviction "thereof shall be fined in any sum not less than fifty [$50.00] nor more than one hundred dollars [$100].”

In 1935 the Arkansas legislature enacted “The Arkansas Alcoholic Control Act” (Act 108 of 1935). Article VI of this act insofar as it relates to the question here presented, is as follows:

“Section 1. It shall be unlawful to sell intoxicating alcoholic liquors at the places, on the day, during the hours, to the persons or under the circumstances set out below, and the penalties herein prescribed shall be in addition to any other penalty prescribed by law on account of sale of intoxicating liqnor:
“ (a) .Any person who shall sell, give away, or dispose of intoxicating liqnor to a minor or habitual drunkard or an intoxicated person shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ($250.00) Dollars, and for the second and subsequent offenses, he shall be guilty of a misdemean- or and punishable by a fine of not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars or by imprisonment in the county jail for not less than six (6) months nor more than (1) year, or both so fined and imprisoned in the discretion of the jury.”

By Act 356 of the Acts of 1941, Act 108 of 1935 was amended as follows:

“Section 1. That Section 1 of Article 6 of Act 108 of the Acts of the General Assembly of the State of Arkansas for 1935 shall be amended to read as follows:
“It shall be unlawful to sell intoxicating alcoholic liquors at the places, on the day, during the hours, to the persons, or under the circumstances set out below, and the penalties herein prescribed shall be in addition to any other penalties prescribed by law on account of the sale of intoxicating liquors:
“(a) Any person who sell, give away, or dispose of intoxicating liquor to a minor, or habitual drunkard or an intoxicated person shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than $500.00 nor more than $1,000,00 or confinement for not more than one year in the Arkansas State Penitentiary, or both. ’ ’

Act 218 of the Acts of Arkansas for 1943 was entitled “An Act to Amend Act 356 of the Laws of 1941,” and provides as follows:

“ Section 1. That Section 1 of Act 356 of the laws of 1941 is hereby expressly repealed and there is . substituted in lieu thereof the following:
“It shall be unlawful to sell intoxicating alcoholic liquors at the places, on the day, during the hours, .to the persons or under the circumstances set out below, and the penalties herein prescribed shall be in addition to any other penalty prescribed by law on account of sale of intoxicating liquor:
“ (a) Any person who shall sell, give away, or dispose of intoxicating liquor to a minor or habitual drunkard or an intoxicated person shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ,($250.00) Dollars, and for the second and subsequent offenses, he shall be guilty of a misdemean- or and punishable by a fine of not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars, or by imprisonment in the county jail for not less than six (6) months nor more than one (1) year, or both so fined and imprisoned in the discretion of the court or jury.”

At the same session of the legislature in 1943, Act 257 was also enacted by the General Assembly, and except for the enacting and emergency clauses, this entire act is as follows:

“AN ACT to Make the Sale of Intoxicating Liquor to a Minor or on Sunday Misdemeanors, and Fixing the Punishment Therefor.
“Section 1. The sale, giving away or other disposition of intoxicating liqnor to a minor is declared to he a misdemeanor, and any person who shall sell, give away, or otherwise dispose of intoxicating liq-nor to a minor shall he punished hy a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ($250.00) Dollars for the first offense; and for the second and subsequent offenses he shall he punished hy a fine or [sic] not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars or hy imprisonment in the county jail for not more than one year, or both such fine and imprisonment in the discretion of the jury or court.
“Section 2. The sale of intoxicating liquor on Sunday is declared to he a misdemeanor, and any person who shall sell intoxicating liquor on Sunday shall be punished by a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ($250.00) Dollars for the first offense; and for the second and subsequent offenses he shall be punished hy a fine of not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars or by imprisonment in the county jail for not more than one year, or both such fine and imprisonment in the discretion of the jury or court.
“Section 3. This Act shall not be construed to repeal any law with respect to the sale of intoxicating liquors except to minors and on Sundays; and all laws and parts of laws in conflict herewith are repealed.
“Section 4. The Legislature finds as a matter of fact that there are a great many violations of the law with respect to the sale of intoxicating liquor to minors and on Sundays, which, on account of present provisions of the law making such acts felonies, cannot in many cases be enforced; that the practice of selling intoxicating liqnor to minors and on Sundays should be stopped and can best be prevented by making such acts misdemeanors.” (Emphasis supplied).

Act 218 of 1943 is digested as Ark. Stat. Ann. § 48-901 (a) (Repl. 1964), and the only difference in amend-atory Act 218 of 1943 and Act 257 of 1943, insofar as the sale of - intoxicating liquor is concerned, is that Act 218 (Ark. Stat. Ann. § 48-901 [a]) carries an optional minimum jail sentence of six months, whereas Act 257 merely limits the jail sentence to not more than one year, and Act 257 provides “this act shall not be construed to repeal any law with respect to the sale of intoxicating liquors except to minors and on Sundays; and all laws and parts of laws in conflict herewith, are repealed.” (Emphasis added).

It would appear, therefore, that Act 257 of the Acts of 1943 is the last word from the legislature on the sale of intoxicating liquor to minors where knowledge of minority is not an element, and we are of the opinion, that the legislative intent in enacting this legislation is clearly apparent from sections 3 and 4, supra.

We therefore hold, that Act 257 did repeal so much of Ark. Stat. Ann. § 41-1117 as is in conflict with Act 257 pertaining to the sale of intoxicating liquors to minors. The written consent or order of the parent or guardian as provided in § 41-1117 is no longer available as a defense under Act 257, and the penalty provision under $ 41-1117 has been increased as set out in Act 257, supra.

Apparently Act 257 of 1943, did not fully accomplish the purpose of its enactment, as expressed in § 4 of the act, so in 1961 the General Assembly saw fit to strengthen the laws against selling intoxicants to minors by the enactment of entirely new and separate legislation.

Act No. 180 of 1961 (Ark. Stat. Ann. § 48-903 [Repl. 1964]) with the exception of the enacting clause, is as follows:

“AN ACT to Make It Unlawful for Any Person to Knowingly Sell, Give or Otherwise Furnish Any Alcoholic Beverage to Any. Person Under the Age of Twenty-One Years; to Prescribe Penalties for the First and Subsequent Convictions for Violations of This Act; and for Other Purposes.
“SECTION 1. It shall he unlawful for any person knowingly to sell, give, procure, or otherwise furnish any alcoholic beverage to any person under twenty-one (21) years of age.
“SECTION 2. Any person violating this Act shall upon a first conviction therefor be deemed guilty of a misdemeanor and shall be fined One Hundred Dollars ($100.00); upon a second conviction within three (3) years, such person shall be deemed guilty of a felony and shall be imprisoned in the State penitentiary not less than one (1) year nor more than five (5) years and shall be fined Five Hundred Dollars ($500.00); upon a third or subsequent conviction within five (5) years, such person shall be deemed guilty of a felony and shall be imprisoned in the State Penitentiary not less than twenty-one (21) years nor more than fifty (50) years.” (Emphasis supplied).

By Act 120 of the Acts of Arkansas for 1967, the General Assembly re-enacted the provisions of Act 180 of 1961 with the addition of an optional ten day jail sentence as additional penalty on first offense. This act became law without the signature of the Governor on June 30, 1967, and at the same session of the General Assembly, Act 277 of the Acts of 1967, was enacted which, with the exception of the enacting clause, is as follows:

"“■AN ACT to Make It Unlawful for Any Person to Knowingly Sell, Give or Otherwise Furnish Any Alcoholic Beverage to Any Person Under the Age of Twenty-One Years; to Prescribe Penalties for the First and Subsequent Convictions for Violations of This Act; and for Other Purposes.
“SECTION 1. It shall be unlawful for any person knowingly to sell, give, procure, or otherwise furnish any alcoholic beverage to any person under twenty-one (21) years of age. Provided, however, that this Act shall not apply to the serving of such to one’s family or to the use of wine in any religious ceremony or rite in any established church or religion.
“SECTION 2. Any person violating this Act shall upon a first conviction wherefor be deemed guilty of a misdemeanor and shall be fined not more than Five Hundred Dollars ($500.00) or by imprisonment for not more than ten (10) days, or by both such fine and imprisonment; upon a second conviction within three (3) years, such person shall be deemed guilty of a felony and may be imprisoned in the State Penitentiary not less than one (1) year nor more than five (5) years and shall be fined not more than Five Hundred Dollars ($500.00) or both.
“SECTION 3. All laws and parts of laws in conflict with this Act are hereby repealed.”

This Act was approved by the Governor on March 10, 1967.

It is clear to us that the General Assembly intended to enact, and did enact, two separate and nonconflicting statutes pertaining to the sale of intoxicants to minors. By Act 257 of 1943 the sale, giving away or other disposition of intoxicating liquor to a minor is made a misdemeanor with punishment for violation fixed at a fine of not less than $100.00 nor more than $250.00 for the first offense, and not less than $250.00 nor more than $500.00 or imprisonment in the county jail fox not more than one year or both snch fine and imprisonment as provided in the act. This act repeals all laws in conflict with it and the consent of a parent or guardian is no defense to the enforcement of its provisions.

By Act 180 of 1961 (Ark. Stat. Ann. § 48-903 [Repl. 1964]) to knowingly sell, give, procure, or otherwise furnish any alcoholic beverage to any person under 21 years of age is made a misdemeanor for the first offense and a felony upon a second and subsequent conviction, with penalties as amended by Act 277 of the Acts of 1967.

We conclude, therefore, that the legislative intent is clearly spelled out in the acts, supra, and is supported by public policy. We conclude that to unknowingly sell, give away, or dispose of intoxicating liquor to minors is a misdemeanor with attending penalty for violation as provided in Ark. Stat. Ann. § 48-901 (except that the jail sentence may be imposed for any time up to one year), and to knowingly do so is a misdemeanor for the first offense and a felony for subsequent offenses with penalties as provided in Ark. Stat. Ann. § 48-903, as amended by Act 277 of 1967, supra.

Error declared.

Byrd, J., dissents.


author: Conley Byrd, Justice.

text:
    James Robert McCOLLUM v. JONES TRUCK LINES, INC., et al
    5-4571
    427 S. W. 2d 18
    Opinion delivered April 29, 1968

      Shelby R. Blaclcmon, for appellant.

      Wright, Lindsey & Jennings and Philip S. Anderson, Jr., for appellees.
   Conley Byrd, Justice.

Workmen’s Compensation claimant James Robert McCollum appeals from a circuit court order upholding the Commission’s finding against him.

Appellant had been employed by appellee Jones Truck Lines since 1962, first loading and unloading trucks, then driving bob trucks, and during the latter three years or more driving trailer trucks. About one in five of the trailer trucks was refrigerated and appellant averaged driving three refrigerator trucks a week. Appellant has a long medical history with various Little Rock orthopedists. His present orthopedist, Dr. Richard Logue, testified that appellant had been a patient since a toe injury in 1959. His medical history reflects that in 1953 torn cartilage was removed from his left knee and in 1957 from his right knee. Dr. Logue had treated appellant’s right knee “numerous times” for chronic swelling. This claim relates to appellant’s left knee.

On September 2, 1966, appellant, suffering from a swelling knee, left work early. After rest didn’t help, appellant went to St. Vincent’s' emergency room where he saw Dr. Logue early September 3. Dr. Logue was surprised to find appellant had a “hugely swollen hot left knee,” and subsequently diagnosed it as a staphylococcus infection in the knee, apparently from staph within appellant’s own body.

After hearing, the referee found that “the duties of claimant’s employment aggravated a pre-existing 'condition. . . . which aggravation of a pre-existing condition is an accidental injury within the meaning of the Arkansas Workmen’s Compensation Act.” The majority of the full Commission found that there was no “convincing or substantial medical evidence that the staphylococcus infection in claimant’s left knee resulted from his employment either as an accidental injury or as ap occupational disease” and denied his claim, which denial was affirmed by the Circuit court.

The gist of appellant’s argument is that working in and out of the cold in refrigerated trailer trucks had aggravated his knee; that he had complained about being assigned so many refrigerated trucks; and that the cold air hurt his knees and apparently caused the staph to lodge in that knee. The deposition of Dr. Logue introduced before the full Commission does not substantiate appellant’s claim of aggravation of a pre-existing-injury. Dr. Logue pretty well summarized his own testimony as follows:

“I do not know whether the swelling was caused by the staph infection or whether the staph infection lodged in Ms knee because there was a swelling that was there as a result of aggravation, work and lifting. I certainly do not know without equivocation.” Appellant’s brief states the point concisely:
“The point here is whether that pre-existing condition of claimant’s was aggravated by the employment. There is no issue here of occupational disease. . . . The real and only issue here is the ‘aggravation of a pre-existing condition,’ whatever the cause of the pre-existing condition.”

On appeal from circuit court, the point here is whether the judgment of the Commission is supported by substantial evidence. During oral arguments, the parties admitted that the matter here is purely a fact question. It is apparent that the credibility of appellant’s testimony about his complaints and the detrimental effects of working in and around refrigerated trucks during the preceding three years was undermined by his record of bidding each year to drive trailer trucks, when he could have bid for non-refrigerated bob trucks without loss of pay. (Appellee’s employees bid each February for the shift and type of truck they will drive from March to March.)

“. . . (I)t is not our province to decide contested issues of fact in compensation cases, ... it is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, and . . the Commission’s findings have the force of a jury verdict. These principles demand that the Commission’s decision in the case at hand be upheld.” Bradley County v. Adams, 243 Ark. 487, 420 S. W. 2d 900 (1967).

Affirmed.

JoNes, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    EAGLE MORTGAGE CORP. et al v. J. L. JOHNSON et al
    5-4533
    427 S. W. 2d 550
    Opinion delivered May 6, 1968

      Hall & Tucker and Fred E. Briner, for appellants.

      Butler & Dishongh, for appellees.
   Carleton Harris, Chief Justice.

The appellees herein are all owners of property in Hollywood Heights Subdivision, Saline County, Arkansas. On November 13, 1962, one of the appellants, Land Development, Inc., being the sole owner of a 120-acre tract of land in Saline County, executed and recorded a plat and Bill of Assurance, carving the land into streets, a proposed park, and 248 lots. Various restrictions were listed in the bill of assurance on the use of, and improvements to, the property. The issue in this litigation arises because of the provisions of Paragraph 7 and Paragraph 12 of the bill.

Paragraph 7 provides:

“Temporary structure. No structure of a temporary character, trailer, basement, tent or shack, garage, barn, or other out building other than servant’s quarters, shall be erected on a building site covered by these covenants for human habitation, temporarily or permanently, nor shall any temporary type residence be erected thereon for human habitation.”

Paragraph 12 provides:

“The AMENDMENTS. Any and all of the covenants, provisions, or restrictions set forth in this Bill of Assurance may be amended, modified, extended, changed, or cancelled, in whole or in part by a written instrument signed and acknowledged by the owner or owners of at least 50% in the area of the land in this subdivision, and the provisions of such instrument so executed shall be binding from and after the date it is duly filed for record in Saline County, Arkansas, and these covenants, restrictions, and provisions of this instrument shall be deemed covenants running with the land and shall remain in full force and effect unless and until amended or cancelled as authorized hereinabove.”

Land Development, Inc., sold these 33 appellees (16 couples and 1 individual) lots in the subdivision, the contracts of sale containing the following provision:

“In addition to the foregoing restrictions and stipulations, no dwelling shall be constructed on any lot purchased under this contract, nor shall any dwelling of less than 1,000 sq. ft. of floor space, excepting porches and porticos. There shall be no shed roofs and all buildings will be finished and painted on the outside. No houses will be moved in (or house trailers) on said property.
“The foregoing stipulations, restrictions and conditions are imposed for the benefit of each and every other parcel of land in this addition, and shall constitute covenants running with the land; and the vendor, its successors and assigns, and any person owning property in said addition may prosecute proceedings at law or in equity to prevent or remedy the violation of such restrictions and covenants, and secure redress for damages on account of such violation.”

Subsequently, Land Development, Inc., conveyed its interest in Hollywood Heights to Eagle Mortgage Corporation (hereafter called Eagle) and Western Realty, Inc. (hereafter called Western). At the time of trial Eagle owned approximately 75 lots, of which 59 were subject to contracts of sale, and Western owned 130 lots, of which 2 were subject to contracts of sale. All of the lots owned by Western are encumbered by a mortgage to Eagle.

Accordingly, on March 20, 1967, Western and Eagle were the owners of more than 50% of the area of land in this subdivision, and on that date, they executed an amended bill of assurance for Hollywood Heights Subdivision, which was filed for record on March 21, 1967. This amendment to the 1962 bill permitted mobile homes in an undeveloped portion, and very close to the center, inclusive of Lots 171 through 190, of the original subdivision; these lots were replatted into “Western Park Subdivision,” mobile homes in this new subdivision being permitted. Appellants sold some of the lots in Western Park for this type home, and were in the process of selling other lots, when the appellees instituted suit to enjoin them from making' these sales on the ground that Paragraph 7 of the original bill was being violated. After the filing of answers, appellants contending their action was authorized by Paragraph 12, and the taking of interrogatories, the case proceeded to trial; at the conclusion thereof, the court held that Paragraph 12 of the original bill of assurance “constitutes abuse of law and is ambiguous and against public policy. That said Paragraph 12 should be interpreted to read that the bill of assurance could be changed at such time that fifty per cent (50%) of the homeowners physically living in the subdivision vote to change the provisions.” Appellants were enjoined from selling property for the purpose of placing house trailers or mobile homes in the subdivision, and the court further directed that all trailers previously placed thereon should be removed; the amended bill of assurance was voided. From the decree so entered, appellants bring this appeal.

Junior L. Johnson, one of the appellees, testified that he had owned one of the lots since January, 1965, and had just completed building a house. He valued his house and lot at approximately $15,000.00. Johnson had purchased two lots from Land Development, Inc., and he testified that he was aware of the restrictions in the contract, though he did not read the bill of assurance. The witness said that, upon inquiring if the same restrictions held true to the other lots in Hollywood Heights, he was assured by Charlie Miller, President of Land Development, Inc., that this was correct. Johnson stated that he was familiar with the provision in his deed, heretofore set out, and because of that provision, and the assurance by Miller, purchased the property. The parties stipulated that the testimony of this witness would be representative of the other appellees, except as to the value of their respective properties.

G-eorge F. Fleischauer, salesman and property manager of -Block Realty Company, testified that he had not been in Hollywood Heights Subdivision, but that he had had experience with trailers being placed on property. He was of the opinion that Dots that had been set up as a residential subdivision would be depreciated by as much as 50% if the trailers w'ere then put in the center (of the subdivision). This statement had reference! to ground value, and the witness stated that if homes were placed on the property, such improvements would be depreciated by 25% if trailers were moved in.

Miller testified that, in addition to Hollywood Heights, he had developed about 7 other subdivisions, all with similar bills of assurance. The witness said that he and his salesmen, in selling lots, would give prospective purchasers a brief resume of the restrictions, and that these restrictions were placed in the contracts so that the individual who purchased his lot would know exactly what he could do. He testified that the provision for amending a bill of assurance (referring to Section 12) is customary, and that the power to amend is essential :

“* * * You want to protect everyone as near as possible. At the same time you have to leave an opening somewhere because nobody knows what the future holds and.if the majority of the land owners so desire to change it for some other purpose, I believe it would be a standard practice. I have never seen any that wasn’t. * * * Any man, owner or owners who own 50% of the land or more would have the right to change the Bill of Assurance.”

The witness said that at the time the bill was amended, there were only about 13 houses in the entire area, and that about 96% of the subdivision was uninhabited. He stated that a 6-foot redwood fence was being built surrounding the mobile home area.

Maurice Mitchell, Chairman of the Board of Eagle Mortgage Corporation and Vice-President of Western Realty, testified that, after examining the bill of assur-' anee, his company made a development loan to Miller in the amount of $60,000.00 and subsequently provided additional investment. The sale of lots came to a halt, and Miller, unable to meet his obligations to the mortgagee, executed a deed to the property. According to Mitchell, the subdivision contained 248 lots and only 7 had been improved (other than mobile homes). Under the provisions of Section 12, Eagle and Western, being the owners of more than 50% of the lots, replatted a portion of the area to permit the location of mobile homes. The witness referred to a number of subdivisions which Eagle had developed, and he said that language similar to Paragraph 12 was contained in every modern hill of assurance that he had ever seen. Mitchell held the view that the development of the mobile home area would increase the market value of the other lots by encouraging activity in the area. He said that no permanent dwelling would be erected next door or across the street from any mobile home.

C. V. Barnes, a real estate counselor of Little Rock, testified that all of the developments, with which he had been associated, had included a provision similar to Section 12, and he was actually of the opinion that the sale of mobile homes would aid in stabilization of the neighborhood. James Larrison, a professional appraiser of Little Rock, agreed with Mr. Barnes.

The sole question presented to us is the meaning of Paragraph 12, or to be more specific, that portion of the language which provides that the bill of assurance may be amended by a written instrument “signed and acknowledged by the owner or owners of at least 50% in the area of the land in this subdivision. ’ ’ The court held that this language was ambiguous, and constituted an abuse of law; that it should be interpreted to read that the bill could be changed “at such time that fifty per cent (50%) of the homeowners physically living in the subdivision vote to change the provisions.”

Appellants simply contend that the meaning is that the owners of 50% of the land in the subdivision can amend the bill.

We are of the opinion that a provision in a bill of assurance giving the power to subsequently amend or modify the provisions of the original bill, is valid. In Matthews v. Kernewood, 40 A. 2d 522, the Maryland Court of Appeals held that one who conveys part of a tract of land by deed containing restrictive covenants may reserve to himself the power to modify those restrictions in future sales. The same conclusion was reached by the Supreme Court of Georgia in the case of Davis v. Miller, 96 S. E. 2d 498.

Here, Paragraph 12 gave notice that the restrictions set forth in the bill could be amended or cancelled in whole or in part.

Appellees’ principal argument is that the paragraph under discussion is ambiguous, and that the provision in question should be construed most strongly against the one who created it. We agree with that declaration of the law, but we do not agree that Paragraph 12 is so ambiguous as to be susceptible to two meanings. To be sure, the pertinent phrase is not perfectly written, but we think the language obviously means that the bill may be changed by “the owner or owners of at least 50% of the area of the land in this subdivision,” rather than “in the area of the land,” etc. The contrary construction, as pointed out hy appellants, is not very logical. Appellants say:

“A reverse construction, ‘by 50% of the owner or owners in the area of the land in this subdivision’ simply does not make sense. There is no such thing as 50% of an owner, in this context.”

Of course, the interpretation rendered by the court, viz., the “Bill of Assurance could be changed at such time that fifty per cent (50%) of the homeowners physically living in the subdivision [our emphasis] vote to change the provisions,” is not supported by any language in. the bill; nor do we find any evidence that would imply such a construction. In fact, this version could well lead to a preposterous situation. The proof reflected that, at the most, thirteen people had built homes in the entire area. It would appear that, under the finding of the Chancellor, seven homeowners conld change the hill of assurance for the entire subdivision composed of 248 lots. To go a step further, let us suppose that only two people had built homes in the original subdivision; again, according to the holding of the trial court, one homeowner could likewise change the bill of assurance for the whole subdivision. We think it evident that the questioned provision simply means that the bill may be modified by a written instrument executed by the owner or owners of 50% of the land in the subdivision.

Certainly, we can understand the position of the ap-pellees, and the desire of those who have built their homes, to maintain the original restrictions; however, Paragraph 12 was a part of the bill of assurance when the lots were purchased, and therefore, all lot purchasers were on notice that the restrictions could be modified, or cancelled, in whole or in part.

Reversed.

Byrd, J., disqualified.

       Five have built homes.

       Other evidence indicated that only seven had built homes.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Sammy CLARK v. STATE of Arkansas
    5290
    427 S. W. 2d 172
    Opinion delivered May 6, 1968

      E. V. Trimble and Charles E, Scales, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Sammy Clark, appellant herein, was charged with the rape of a nine-year-old girl, and on trial, was found guilty, and his punishment fixed a,t imprisonment in the State Penitentiary for life. From the judgment so entered, Clark brings this appeal. For reversal, only one point is argued, vis., the court erred in failing to grant a mistrial on the motion of appellant when the state offered to call appellant’s wife to testify during the presentation of the state’s evidence. However, the motion for new trial also asserts that error was committed by the court in failing to give three requested instructions by appellant, and it is also alleged that the verdict was contrary to the law and evidence. We proceed to a discussion of these contentions, hut in reverse order.

The state’s evidence reflected that Clark requested a friend to drive him to the home of Anna Marsenburg for the purpose of picking up his stepchildren. This was done, and Clark got his stepdaughter, a child then nine years of age, who lived with her grandmother, Anna Marsenburg, together with her sisters, and the friend drove them to the home where Clark lived with the children’s mother, to whom he was married. On arriving at the house, Clark told the sisters to go outside, but directed the little nine-vear-old girl to stay inside. He then asked her to take her clothes off, but upon her refusal, appellant took them off. He then took his own clothes off, and-, according to the witness, choked her, and raped her. The little girl stated that she tried to push him off, and tried to got away, and that he hurt her; further, that she did not tell anybody, because she was afraid he would kill her.

The grandmother testified that she found her granddaughter’s bloody panties on a Tuesday (the alleged rape having occurred on the previous Sunday); that she questioned and examined the little girl, and observed that she was swollen and bleeding. A subsequent examination was made by a physician, Dr. Bill Floyd.

Dr. Floyd testified that the hymen had been ruptured and torn; that the child’s condition had originated probably from one to four days earlier, and that, in his opinion, a forceful penetration was the cause of the injury.

Clark admitted getting the children from the grandmother’s house, and taking them to his house, but he denied that he bothered the girl in any way. The evidence obviously, if believed by the jury, was more than ample to sustain the conviction.

It is asserted that the court erred in refusing to give an instruction, at appellant’s request, on assault with intent to rape. We do not agree. The evidence on the part of the state was that the act of intercourse was forcibly committed, and the evidence on the part of the defendant was simply that he did not molest the little g'irl in any way. It was not error to refuse the instruction. Whittaker v. State, 171 Ark. 762, 286 S. W. 937.

We think, however, that appellant’s requested instruction No. 1 should have been given. This was an instruction defining the offense of carnal abuse, the instruction telling the jury that, if there was reasonable doubt that Clark was guilty of rape, he could still be found guilty of the crime of carnal abuse. The difference in the two offenses is that rape is the carnal knowledge of a female, forcibly and against her will (or without her consent), while carnal abuse is the carnal knowledge of a female under the age of sixteen years. It is immaterial in the latter case whether consent is given or not. While the little girl testified- as to acts constituting rape, the jury could possibly have found, since she did not report it, that she consented. The offense of carnal abuse is included in a charge of rape where the female is under sixteen years of age. Warford and Clift v. State, 214 Ark. 423, 216 S. W. 2d 781. See also Willis v. State, 221 Ark. 162, 252 S. W. 2d 618.

Instruction No. 2, offered by appellant, was not proper; since counsel for Clark ánnounced at the beginning of the trial that he was waiving his plea of not guilty by reason of insanity; nor was there any evidence offered that appellant was insane.

The principal point relied upon by Clark for reversal relates to the trial court’s refusal to grant appellant’s motion for a mistrial when the Prosecuting Attorney offered to call Clark’s wife to testify during the presentation of the state’s evidence. The record reflects the following:

“Mr. Howard:
If your Honor please, I would offer to call this little girl’s mother who is married to this defendant, if the defense counsel would allow her to testify.
Mr. Trimble:
I move for a mistrial, Your Honor. That’s a prejudicial offer.
The Court:
Overruled. Save his exceptions. You can call her if you like, hut I won’t let her testify.
Mr. Howard:
I can’t use her if you won’t let her testify.”

"We think the motion for a mistrial should have been granted. Ark. Stat. Ann. § 43-2019 (Repl. 1964) provides :

“In any criminal action in the courts of this state a husband or wife may testify as a witness in behalf of the other when called as such witness by the other spouse, but cannot be called as a witness by the opposite party.

The state argues that Clark was not prejudiced by the act of the Prosecuting Attorney in attempting to call appellant’s wife as a witness against the defendant, and mentions the case of McDonald, v. State, 225 Ark. 38-279 S. W. 2d 44. There, the defendant’s wife was called by the state, Avas sworn, and seated in the witness chair. The record then reflects that the court asked defense counsel if he had a motion, but the record does not reflect what motion, if any, was made. The opinion recites :

“* * * (Discussion off the record.) By the Court: The Court will hold that Mrs. McDonald is incompetent to testify. By Mr. Lookadoo: I want to make an objection to this later. By the Court: Mrs. McDonald, you may stand aside and go hack to the witness room. Gentlemen of the Jury, the witness who is leaving the stand is the wife of the defendant, and the Court has held that a wife cannot testify against her husband except where she has been personally injured; the Supreme Court has held that this does not include children. All right, call your next witness.”

In holding that no prejudicial error occurred, we said:

“It appears that appellant made no objection to the court’s action and he is, therefore, in no position to complain for the first time here.”

It is thus clear that we did not hold that the action of the attorney for the state was not prejudicial, being unable to pass upon the point under the state of the record.

In the case before us, we think the act of the Prosecuting Attorney was prejudicial. It will be noted that our statute, heretofore quoted, goes a good bit farther than prohibiting a spojise from testifying against the other in a criminal action; it provides that the spouse “cannot be called [our emphasis] as a witness by the opposite party.” Of course, when an effort is made by the state to call one spouse to testify against the other, it would immediately appear to the jury that the called spouse considered the defendant guilty, held no sympathy for the accused, and would like to see the one on trial convicted. This could be particularly damaging where the offense was allegedly committed by a present husband against the wife’s child by a previous marriage. While the crime with which the appellant is charged is heinous and revolting, we think the offer to call the wife, mother of the alleged victim, the prosecution knowing that the statute prohibited her testimony, exceeded the bounds of fairness, so essential to an unprejudiced trial.

Because of the errors herein set forth, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.

FoglemaN, J., concurs.

John A. Fogleman, Justice,

concurring. I agree that the conviction of appellant must be reversed for failure to give defendant’s requested instruction No. 1 on carnal abuse. I do not agree with the majority that there was any prejudicial error in the trial court’s refusal to grant a mistrial. I take the majority opinion to state that a wife cannot ever be used as a witness by the State when the offense charged is not against her or her property. If this is the position of the majority, I am certainly in disagreement. In the first place, I cannot agree that we did not hold such an action to be nonprejudicial in McDonald v. State, 225 Ark. 38, 279 S. W. 2d 44. It is true that the court bolstered its holding by stating that no objection was made by the appellant there to the court’s action. The trial court’s action .there was to hold the wife called by the prosecuting attorney incompetent and to advise the jury of her incompetence. The really pertinent holding was that the offer was not prejudicial. In opening the discussion of this alleged error, this court said:

“Appellant in Assignment 2 argues that the State erred in offering as a witness appellant’s wife knowing that she could not be compelled to testify against her husband (by virtue of 43-2019, 43-2020), and that this offer prejudiced the jury against him. We do not agree.”

In the next place, I think that the courts’ holding in the McDonald case was correct. It is true that our opinions almost universally refer to both the common law and statutory rules pertaining to testimony of a wife either for or against a husband as going to the competency of the witness. Inman v. State, 65 Ark. 508, 47 S. W. 558; Woodard v. State, 84 Ark. 119, 104 S. W. 1109; Padgett v. State, 125 Ark. 471, 188 S. W. 1158; Dean v. State, 139 Ark. 433, 214 S. W. 38; Satterwhite v. State, 139 Ark. 605, 214 S. W. 44; Witham v. State, 149 Ark. 324, 232 S. W. 437; Lighter v. State, 157 Ark. 261, 247 S. W. 1065; Conley v. State, 176 Ark. 654, 3 S. W. 2d 980; Robison v. State, 191 Ark. 455, 86 S. W. 2d 927; Reed v. State, 222 Ark. 119, 257 S. W. 2d 362. Actually, however, the rule that one spouse may not testify against the other should be considered as a privilege. Matthews, Evidentiary Privileges & Incompetencies of Husband & Wife, 4 Ark. Law Eev. 426; 8 Wigmore, Evidence § 2227 et seq. ((McNaughton rev. 1961). I find nothing in our cases which actually treats this rule other than as a privilege, even though the terms “incompetency” and “incompetent” are used. Our General Assembly has specifically referred to the rule as stated in Ark. Stat. Ann. § 43-2019 as the husband-wife privilege. It seems to me that the privilege is that of both the party and the witness, and that either could claim it. 8 Wigmore, Evidence § 2241, p. 254 (MclS[aughton rev. 1961). This court has recognized that one spouse has a right not to assist in the prosecution of the other when the offense is not against the former. Taylor v. State, 220 Ark. 953, 251 S. W. 2d 588.

Regardless of whether the rule is treated as creating an incompetency or a privilege, its application may be waived. An objection to the incompetency of a witness must be made as soon as it appears. Thrash v. State, 146 Ark. 547, 226 S. W. 130. A specific objection is necessary to raise the question of incompetency. Mosley v. Mowhawk Lbr. Co., 122 Ark. 227, 183 S. W. 187; Mahoney v. Roberts, 86 Ark. 130, 110 S. W. 225. Failure to make timely objection constitutes waiver. Sanders v. State, 175 Ark. 61, 296 S. W. 70. This seems to be in keeping with the majority rule. See, e. g., the following cases where the husband and wife status is involved. Olender v. United States, 210 F. 2d 795, 42 ALR 2d 736 (1954); People v. Wilkins, 135 Cal. App. 2d 371, 287 P. 2d 555 (1955); Hembree v. Commonwealth, 210 Ky. 333, 275 S. W. 812 (1925); Huff v. State, 176 Miss. 443, 169 So. 839 (1936); State v. Hill, 76 S. W. 2d 1092 (Mo. 1934); State v. Palen, 119 Mont. 600, 178 P. 2d 862 (1947); Parrish v. State, 167 Tex. Crim. 404, 320 S. W. 2d 853 (1959); State v. Bledsoe, 325 S. W. 2d 762 (Mo. 1959). If the rule accords a privilege, it is certainly subject to waiver by one in whose favor it exists. National Annuity Ass’n v. McCall, 103 Ark. 201, 146 S. W. 125; Wooten v. Wooten, 176 Ark. 1174, 5 S. W. 2d 340; Schirmer v. Baldwin, 182 Ark. 581, 32 S. W. 2d 162; 8 Wigmore, Evidence (MeNaughton rev. 1961) § 2242, p. 256. Either spouse may claim the privilege, so waiver would have to be by both.

The statute [Ark. Stat. Ann. § 43-2019 (Repl. 1964) ] is in derogation of the common law and must be strictly construed. Jenkins v. State, 191 Ark. 625, 87 S. W. 2d 78. This construction is to be taken most strongly against change in the common law and the intent to change the common law must be clear. Crawford, Statutory Construction, § 228, p. 422. See Thompson v. Treller,. 82 Ark. 247, 101 S. W. 174; Hackney v. Southwest Hotels, 210 Ark. 234, 195 S. W. 2d 55; Raney v. Gunn, 221 Ark. 10, 253 S. W. 2d 559; Thompson v. Chadwick, 221 Ark. 720, 255 S. W. 2d 687. It appears from an examination of § 43-2019 (Act 14 of 1943) that there was no intention to change the common law so as to make absolute the exclusion of one spouse as a witness on trial of the other in a criminal action. If there is doubt from reading the statute, resort to the title of the act will dispel it. The title reads: “An Act To Permit A Husband Or Wife To Testify For The Other In Criminal Actions.” Obviously, this was the only change of the common law intended.

This court has already recognized that there may be a waiver of the rule. In Dillon v. State, 222 Ark. 435, 261 S. W. 2d 269, a defendant’s wife was called as a witness by him. On cross-examination most of the questions propounded were outside the scope of the direct examination, but no objection was made until the examination had been pursued rather extensively. The court said that this interrogation was improper but that the rule did not help the appellant there because his objection was tardy and not specific.

There is a very close analogy to the application of the husband-wife rule as declared by statute and the Dead Man’s Statute set out in Schedule Sec. 2. Section 43-2019 says that in a criminal action a husband or wife cannot be called by the opposite party. Schedule 2 says that in actions by or against executors, administrators or guardians, neither party shall be allowed to testify as to transactions with or statements of the testator, intestate or ward, unless called by the opposite party. The language seems just as prohibitory in one statute as the other. The Dead Man’s Statute has also been treated as relating to the incompetency of the witness. Park v. Lock, 48 Ark. 133, 2 S. W. 696; Bush v. Prescott & Northwestern Ry. Co., 83 Ark. 210, 103 S. W. 176; Bradford v. Reid, 202 Ark. 108, 149 S. W. 2d 51; Harris v. Whitworth, 213 Ark. 480, 211 S. W. 2d 101; Bush v. Evans, 218 Ark. 470, 236 S. W. 2d 1013. On the other hand, it, too, has been considered to recognize or establish a privilege. Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9. But it is now clearly established that both the incompetency and the privilege may be waived. Lisko v. Hicks, supra; Harris v. Harris, 225 Ark. 958, 286 S. W. 2d 849; Smith v. Clark, 219 Ark. 751, 244 S. W. 2d 776. Failure to make timely objection constitutes waiver. Lisko, v. Hicks, supra; Brickey v. Sullivan, 208 Ark. 590, 187 S. W. 2d 1; Carlson v. Carlson, 224 Ark. 284, 273 S. W. 2d 542; Starbird v. Cheatham, 243 Ark. 181, 419 S. W. 2d 114.

Since the State proposed to call the wife, in this case, it seems obvious that she waived the privilege. Until a timely objection was made by appellant, he had not claimed any privilege or raised a question of competency of the witness. Here, as in the McDonald case, the trial judge promptly sustained the objection. While appellant made his objection in the form of a motion for mistrial, he did not request any admonition to the jury.

I agree that it would have been better to have taken the matter up out of the presence of the jury as suggested by the Supreme Court of South Dakota in holding that just such a procedure as was followed here did not constitute reversible error. State v. Damm, 62 S. D. 123, 252 N. W. 7 (1933). Certainly we should hesitate to call this action prejudicial error when eminent authority, 8 Wigmore, Evidence § 2243, p. 261 (McNaughton rev. 1961), states:

“. . . Furthermore, in any event, upon the same principle as under the privilege against self-incrimination (§ 2272 infra), the party desiring to compel the spouse to testify should be able at least to call for the testimony and should not be deprived of it until the party spouse formally objects and claims the privilege.”

Some courts have held this to be the proper procedure. See, e. g., People v. Wilkins, 135 Cal. App. 2d 371, 287 P. 2d 555.

While disagreement of the courts is acknowledged, it seems to me that the majority of courts to which the question has been presented have held that there is no prejudicial error. See People v. Chand, 116 Cal. App. 2d 242, 253 P. 2d 499 (1953); People v. Ward, 50 Cal. 2d 702, 328 P. 2d 777 (1958); State v. Roby, 128 Minn. 187, 150 N. W. 793 ,(1915); State v. Dennis, 177 Ore. 73, 159 P. 2d 838 (1945); Commonwealth v. Weber, 167 Pa. 153, 21 Atl. 481 (1895).

       The child testified that she was raped on the couch in the living room. Prom the record:
      “Q.. Was he hurting you all the time that you were on this couch ?
      A. Yes, sir.
      Q. And all the time he was on this couch, was his private part in you?
      A. Yes, sir."

       The exception is found in the following section, 43-2020, which reads: “In any criminal prosecution a husha-nd and wife may testify against each other in all cases in which an injury has been done by either against the person or property of either.”


text:
    HOUSING AUTHORITY of The City of Camden v. John R. REEVES, Jr. et al
    5-4557
    427 S. W. 2d 196
    Opinion delivered May 6, 1968

      Streett & Plunkett, for appellant.

      Oaughan & Lcmey, for appellees.
   George Rose Smith, Justice.

This is an action brought by the Camden Housing Authority to condemn 6.236 acres of a 73-acre tract owned by the Reeves fam-. ily, in Camden. The jury fixed the value of the property being' taken at $38,000. The Authority’s single point for reversal is the court’s asserted error in allowing the landowners to introduce an unrecorded plat showing the 73-acre tract as a residential subdivision consisting of public streets and blocks divided into lots.

In recent years we have had several cases involving the admissibility of similar plats, some of which depicted subdivisions that existed only on paper. The cases are not out of harmony with one another; the difficulty is that of applying the law to varying fact situations.

We have consistently held that such a lot-and-block plat is not admissible when the subdivision has really not yet come into existence. The reason for the exclusionary rule is that such an exhibit is apt to mislead the jury into valuing the property as consisting of so many lots, without adequately considering necessary development expenses such as the construction of streets and utility lines, which could not be properly explained to the jury without bringing a host of collateral issues into the case. Arkansas State Highway Comm. v. Parks, 240 Ark. 719, 401 S. W. 2d 732 (1966). In several of the cases relied upon by the Housing Authority, the subdivision portrayed by the plat was not beyond the panning stage, so that the admission of the plat was fairly sure to mislead the jury. That point was discussed in detail in Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86 (1958), where it was admitted that the land had not been developed at all as a subdivision. Similar non-exister^t subdivisions were involved in Arkansas Louisiana Gas Co. v. Honrard, 240 Ark. 511, 400 S. W. 2d 488 (1966), and Arkansas Arkansas Louisiana Gas Co. v. Lawrence, 239 Ark. 365, 389 S. W. 2d 431. (1965). Such an exhibit is especially misleading when, as in the Watkins case, it is accompanied by testimony about the value of the fictitious lots.

On the other hand, an unrecorded plat may be admissible when the subdivision is not merely imaginary. In Arkansas State Highway Comm. v. O. & B., 227 Ark. 739, 301 S. W. 2d 5 (1957), the land had, not been dedicated as a subdivision, but it was surrounded by well developed sections of the city of Jacksonville. The testimony proved that its best use was for the development of residential lots. We upheld the admission of a plat showing the land divided into lots and blocks. There the court appropriately cautioned the jury against trying to determine how the land might best be divided into building lots or at what price the lots might be sold. In the case at bar a similar cautionary instruction would have been proper, but the Housing Authority made no clear-cut request for such an admonition to the jury.

The facts in Arkansas State Highway Comm. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309 (1963), were very much like those now before us. There the subdivision was not shown to have yet been dedicated, but its proprietors had succeeded in bringing in improvements such as a road and gas and water lines. In sustaining the admissibility of two exhibits that showed the tracts subdivided into lots and blocks we used language that seems to have been used as a guide by these appellees:

“It is undisputed that the highest and best use of the property in question is for residential purposes. These exhibits were offered and admitted in evidence only for the limited purpose of showing the highest and best use of the property as being for residential purposes and for the further purpose of showing the improvements existing thereon [gas and water lines and gravel road] some several months before the taking by the appellant. This evidence could not result in conjecture or speculation by the jury as to market value to the prejudice of appellant. Ark. State Highway Comm. v. O. & B. Inc., 227 Ark. 739, 301 S. W. 2d 5.
“Appellant urges that the exhibits are inadmissible as evidence in view of our ruling in Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86. The facts in that case, on this point, are quite different. There testimony was admitted as to the number and value per lot of the property. It is true that witnesses in the case at bar testified they considered the value of other lots in the area; however, there was no testimony as to the value per lot of the subject property. The testimony, as to value, was on a raw acreage, basis of the tract. Thus, we hold that the court was correct in admitting-ap-pellees’ Exhibits A and B under the facts in this case. ’ ’

In the case at bar the 73-acre tract has been owned by the Reeveses for more than fifty years. In 1952 or 1953 Bob Reeves, a graduate engineer, surveyed the land, laid it out in lots and blocks, and built a home on one lot. Later on two more homes were constructed on lots sold to others. The Reeveses, pursuant to a plan to develop the subdivision over a period of years, had paved, curbed, and guttered two streets and had laid about 1,900 feet of water lines, 1,500 feet of sewer mains, and almost 3,000 feet of gas lines before the Housing Authority brought this action. By that time about a third of the property had access to streets and utilities.

The plat that was introduced in evidence showed the improvements we have mentioned, the contours of the land, the streets not yet developed, and the proposed division of the tract into lots and blocks. It also showed how the whole tract was almost cut in two by the Housing Authority’s condemnation of the 6.236 acres now in question. The landowners confined their proof to the value of the tract as a whole, carefully avoiding any reference to the value of individual lots. Thus it will be seen that the facts are so similar to those in the Witkowski case that it would be hard to draw a logically controlling distinction between the two.

The Housing Authority’s principal argument is that the paved streets, houses, and utility lines could have been shown without the inclusion of the lots and blocks. No doubt that statement is true, but it does not follow that the plat in dispute was therefore inadmissible. The same argument could certainly have been made in the O. & B. and Witkowski cases, supra. Here the Beeves subdivision had progressed beyond the planning stage and into the process of actual physical development on the land. The question is, Had that development progressed to such a point that a lot-and-block plat of the area could be shown to the jury without being misleading? When it is borne in mind that every pertinent fact could have been brought out on cross-examination of the landowners’ witnesses and that the court might have been asked to give cautionary instructions like those in the O. & B. case, we are not willing to say that the court committed reversible error in allowing the introduction of an exhibit that was unquestionably of value both to counsel and to the jury in the interpretation of the testimony.

Affirmed.


text:
    Mrs. Frank THOMAS v. Bill D. STOBAUGH et ux
    5-4558
    427 S. W. 2d 170
    Opinion delivered May 6, 1968

      Felver A. Rowell Jr., for appellant.

      Gordon & Gordon, for appellees.
   Paul Ward, Justice.

This litigation is over the ownership of a city lot. Appellant sued to quiet title on the ground of adverse possession. The trial court held in favor of appellees who held the record title. The background facts, set out below, are not in dispute.

On July 30, 1947 appellee, Bill D. Stobaugh, received a warranty deed to lots 94, 95, and 96 in Park-dale Addition to the City of Morrilton, Arkansas. On March 7, 1949 he sold lots 94 and 95 to I. E. Halbrook. On June 7, 1954 Halbrook sold lots 94 and 95 to Mr. and Mrs. Frank G. Thomas. There was a dwelling on lots 94 and 95 which abutted lot 96 to the south. While Hal-brook lived on lots 94 and 95 he had permission from Stobaugh to make use of lot 96. Mr. Thomas died in 1956.

On May 1, 1967 Mrs. Thomas, appellant, filed a pe^-tition in chancery court to quiet title to lot 96, alleging : She acquired title to said lot by proper conveyance, and by adverse possession for more than ten years during which time she paid taxes on the lot. In answer to the petition appellee alleged he was the owner of lot 96, and that appellant was not in possession of said lot.

After presentation of testimony on the issues joined, the trial court found and held: The defendants ('Sto-baugh and wife) hold record title to lot 96; plaintiff had permissive use of said lot but did not give appel-lees notice of adverse holding, and; plaintiff “did not have possession sufficient to constitute notice to defendants of adverse possession”.

On appeal, for a reversal, appellant relies on one point: “The findings of the trial court are against the preponderance of the evidence.” For reasons hereafter mentioned, we are unable to agree with appellant.

Both sides here have cited and discussed several decisions and authorities relating to acquisition of title to real estate by adverse possession, but, after careful consideration, we feel that the rules applicable to the facts in this case have been adequately announced in two decisions of this Court.

In Gee v. Hatley, 114 Ark. 376, 170 S. W. 72, where a fact situation similar to the one here was presented, the Court made the following statement:

“And it is true that it having been shown that Brooks entered into the permissive possession of the land, the presumption is that his subsequent possession and that of those claiming under him was in subordination to the church’s title and pursuant to this permission. But this presumption may be overthrown by the evidence, and the jury should find that it was overthrown, and that the possession was adverse, if they should find the fact to be that the trustees of the church had actual notice of this adverse possession, or that defendants’ occupancy had been so inconsistent with the presumption of a permissive possession as to impute knowledge to the trustees of that hostility.”

The above decision has been cited with approval by this Court many times. In Dial v. Armstrong, 195 Ark. 621, 113 S. W. 2d 503, where the Gee case was cited and approved, the Court also said-:-.

“The rule is that where the entry is permissive the statute will not begin to run against the legal owner until an adverse holding is declared, and notice of such change is brought to the knowledge of the owner.” ,(citing cases)

An application of the above rules here calls for an affirmance of the trial court unless the weight of the evidence shows: (a) appellees had actual knowledge that appellant was claiming title to lot 96, or; (b) appellant’s acts of possession were sufficient to impute such knowledge to appellees. It is our conclusion that the case must be affirmed on both grounds.

(a) It is not even contended by appellant that she or anyone else ever actually told appellees (or either of them) that she was claiming title to lot 96. Mr. Sto-baugh denies that he had such notice, and we find nothing in the record to the contrary.

(b) A much closer question is here presented. It is not questioned by appellees or anyone else that appellant and her husband exercised acts of control and possession over lot 96. They planted a garden each year; they tore down old buildings; they mowed the grass, and; they put a hedge across the front. However, there were other facts and circumstances which, we think, justified and support the trial court.

When Halbrook moved on lots 94 and 95 he was given permission to use lot 96, which, apparently, was unsightly because of old buildings and undergrowth. Consequently Stobaugh gave him permission to use it in any way he desired. When appellant (and her husband) moved in they used lot 96 as previously indicated. Mr. Stobaugh testified that all this was agreeable to him. The record shows that appellees had moved away from Morrilton in 1947 and did not return until 1959. Also, the trial court could have concluded that appellant was confused as to certain matters. She stated they were supposed to get title to lot 96, but their warranty deed ((Transcript p. 20) plainly shows otherwise. Appellant stated they had paid taxes on lot 96 from 1955 to 1959, but tax receipts attached to the record show otherwise. This discrepancy, however, is explained by the record so as not to reflect on the integrity of appellant.

The close question therefore is: Were the above acts of possession, when viewed together yith all the attending circumstances, sufficient to constitute notice to appellees that appellant was claiming absolute title to Lot 961 The trial court found they were not sufficient, and we are unable to say such finding is against the weight of the evidence.

Affirmed.

Byrd, J., dissents.


text:
    ARKANSAS BEST FREIGHT SYSTEM et al v. E. B. HILLIS
    5-4522
    427 S. W. 2d 167
    Opinion delivered May 6, 1968

      Felver Rowell Jr., for appellee.
   Lyle Brown, Justice.

Arkansas Best Freight System, Inc., and Daniel L. Thompson, driver for ABF, appeal from a judgment awarded E. B. Hillis for injuries and damages resulting from a collision between trucks driven by Thompson and Hillis. Appellants’ principal attack is on the sufficiency of the evidence. The amount of the verdict, the denial of their motion for a directed verdict, and the propriety of one instruction are also questioned.

Thompson was pulling a forty-foot trailer containing 42,000 pounds of explosives. It was January 21, 1967, at approximately 7:15 a.m. He was headed east on U. S. Highway 64 putside Morrilton. Visibility was good. He was on a straigNf kti^feNuNhighway about one and a half miles in length. He faced a very slight upgrade. Proceeding in the same direction and a considerable distance ahead of Thompson was appellee Hillis, a carpenter. His destination was a job site about midway of the straight stretch. It was necessary for him to make a left turn and enter a private driveway to reach his destination. At a time when Hillis was either set to make his turn, or actually making a turning movement, his 1956 truck was struck from the rear. The point of impact was in Thompson’s passing lane and some two feet across the center line. Hillis ’ truck was headed fairly straight down the highway, as shown by the fact that the pickup was sideswiped fairly evenly from left rear to left front. Hillis ’ truck was knocked to his right, cleared the highway, and came to rest in a ditch several feet away. The ABF truck proceeded down the highway in Thompson’s passing lane, then back to his driving lane, and came to rest upright on his right shoulder of the highway. That point was 651 feet beyond the point of impact.

The facts just recited are undisputed. Other evidence offered by Hillis is in dispute. Hillis was the only eyewitness who testified in his behalf. He stated that he stopped his truck some twenty-one feet before reaching a point opposite the driveway; that he could see through his rear-view mirror a large truck approaching him a considerable distance away; that he stopped his truck to permit the passage of three vehicles approaching from the opposite direction; he was not certain of the length of time during which he gave a manual left turn signal by putting his left arm through the vent window; he was positive that the arm remained in that position during the time the three vehicles were passing; that during the passage of the vehicles he might have been slightly over the center line; that very shortly after the last vehicle passed, and before he had time to release his brake and get both hands on the steering wheel, he was struck by the ABF truck.

State Trooper Duvall arrived at the scene shortly after the accident and before either vehicle was moved. He testified, among other things, that there were no skid marks from the debris down to the ABF trailer; that the front bumper of ABF’s truck was bent backward and against the right front tire, not enough to lock the wheel but sufficient to cut the tire. The right front fender and the saddle tanks of that truck were damaged.

Under the law, when applied to the evidence pr6-duced by Hillis, it would have been error for the court to grant an instructed verdict at the close of Hillis’ evidence. Being the lead vehicle, he had the superior right to the use of the highway for the purpose of leaving it to enter an intersecting road or passageway. Madison Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S. W. 2d 729 (.1931). Hillis asserted that he approached the intended turn by edging over the center line, coming to a complete stop, and extending his arm for the left turn signal, at a time when the ABF truck was a considerable distance behind him. That evidence, along with the assertion, substantiated by physical evidence, that Hillis did not make a sudden left turn, made a question for the jury.

Daniel Thompson, ABF’s driver, was appellants’ only eyewitness. He asserted that he pulled into the passing lane approximately 100 yards behind Hillis. At that time, so he contends, Hillis was moving slowly down the highway. It was Thompson’s version that Hillis began a left turn at a point when the ABF truck was within ten feet of the Hillis truck. He denies having seen any other vehicles on the road, nor did he see any hand signal given by Hillis. On cross-examination it was developed that an early fog had cleared and there was good vision. In fact Thompson testified he could, see for a mile and a half down the road. At a point when Thompson was some 400 yards behind Hillis, Thompson could perceive that he was rapidly gaining speed on Hillis and at a time when Thompson was driving at approximately 48 miles per hour. Thompson estimated Hillis’ speed at twenty miles per hour. As a result of Hillis ’ slow speed, Thompson began a passing movement 100' yards behind Hillis.

If Thompson’s version of distance and speed is correct, his position would have been somewhat similar to the trailing car in the Madison Smith Cadillac case. There the trailing vehicle observed as far back as 100 yards that the forward car was making some fifteen miles per hour. Under those circumstances this court commented that the trailing vehicle could have taken precautions until it ascertained for what purpose the lead car was slowing down. Also the jury here could have given weight to the fact that Thompson, rather than reduce his speed and stop if necessary, deliberately elected to maintain his speed. If he so acted, then he assumed the hazard of turning to the left and passing the Hillis car.

We hold that the trial court properly denied appellants’ motion for a directed verdict at the conclusion of all the evidence.

In light of Hillis’ testimony, together with some of the testimony of Thompson which favored Hillis, we are unable to say the jury verdict is not sustained by substantial evidence.

Appellants rely on Midwest Bus Lines v. Williams, 243 Ark. 854, 422 S. W. 2d 869 (1968). There we held that there was but one conclusion to be reached and we reversed and dismissed as to two defendants. In Midwest Bus Lines there were physical facts which mathematically did not authorize the finding of negligence as to Tyler and Midwest. Such evidence is not here available. Con-cededly, Hillis’ version of the occurrence is not flawless. On the other hand, the version given by Thompson is stoutly disputed. We have only the testimony of two eyewitnesses and because of substantial conflict in their testimony the problem fairly reduces itself to a question of credibility. That is solely the prerogative of the jurv. See Southern Kansas Stage Lines v. Ruff, 193 Ark. 684, 101 S. W. 2d 968 (1937).

The verdict is not excessive. It cannot be disputed that appellee received a terrific blow to his truck, an impact sufficient to force the heavy ABF truck bumper back into the right front tire. The course taken by Hillis ’ truck undoubtedly resulted in an experience that could have taken his life. That is because the truck went into a hole of such depth as to conceal a larger part of his truck. The right side of the truck was heavily damaged as a result of the impact with the ditch bank.

Dr. Logue found small chips of bone around the left hip, which was partially dislocated, and the capsule was apparently torn away at the time of the dislocation. He testified that Hillis had a restriction of motion in the left leg and because of his age of 67 years it would probably be permanent. That restriction of motion will, in the doctor’s opinion, restrict the use of the leg by an estimated ten per cent. He further testified that an injury of this type is generally accepted to be painful. Appel-lee testified that the hip is still giving pain and he is forced to sit on the right side.

Hillis testified that he received cuts all about the forehead, which required forty stitches, several abrasions on the left hand and elbow, and a loss of teeth. He was hospitalized seven days and his medical totalled $628.64. At the time of the accident Hillis was earning $70' per week as an experienced carpenter. That was his usual weekly wage when he worked. He was regularly employed at the time of the accident, although he did not earn a sufficient amount in 1965 and 1966 to pay an income tax. The record is not clear, but it could have been due to loss of time from a back injury. Hillis testified he had not been physically able to perform any labor since the accident. The damage to his truck was fixed at $300. Considering the recited factors, Hillis’ vocation, and today’s purchasing power of money, we are nnable to say that the judgment for $20,000 should be disturbed.

Appellants contend the court’s instruction on damages was in error in that it permitted the jury to consider scars, disfigurement, and visible results of the injury. They contend that the evidence did not justify the submission of those elements. We have referred to the testimony of Hillis concerning the taking of forty stitches about the forehead. The number of scars still apparent at the time of trial is not in the record. However, it is reflected that there were scars about the forehead and they were exhibited to the jury. For those reasons we think the objection is without merit.

Affirmed.