author: Lyle BrgwN, Justice. Carletox Harris, Chief Justice,

text:
    Marvin Clark, Guardian of the Estate of Thomas Harvey Cage, a Minor v. Arkansas Democrat Company
    5-4110
    413 S. W. 2d 629
    Opinion delivered March 13, 1967
    [Rehearing- denied May 1, 1967.]

      Ben. D. Lindsey and Spencer & Spencer by Don Gil-laspie, for appellant.

      Robert G. Compton and Austin McCaskill for appellee.
   Lyle BrgwN, Justice.

This appeal involves, an action for personal injuries to Tommy Cage, age thirteen years, who was injured while working his newspaper route on a motor scooter in El Dorado. Tommy’s guardian brings this appeal from a jury verdict in favor of the defendant, Arkansas Democrat Company. The appeal questions the propriety of an instruction which told the jury that the Democrat had the legal right to contract with Tommy Cage, notwithstanding he was under fourteen years of age. Tommy, with the approval of his parents, had executed a written agreement with Arkansas Democrat Company.

The instruction questioned by Tommy’s guardian on appeal, given at the request of the Democrat, is as follows:

“Court’s Instruction No. 8: You are also instructed that the Arkansas Democrat Company had the legal right to contract with Tommy Cage for the distribution of newspapers as. an independent .Contractor even though it should be determined that he was under fourteen years of age.”

The Democrat responds to the attack on this instruction by asserting that Act No. 96, March 21, 1883, § 2 (Ark. Stat. Ann. § 51-504 [1947]), authorized them to contract with the minor. The pertinent part of this section says that the contract of a minor, when approved by the parent having control of the minor, shall be binding. Cases coming to this court in which provisions of Act No. 96 have been applied have been concerned with sharecropping contracts.

We have no hesitancy in holding that such part of Act No. 96 as deals with minors under fourteen years of age has been superseded by Initiative Act No. 1, of 1914. See Ark. Stat. Ann. § 81-701 (Repl. 1960), which reads as follows:

“No child niider the age of fourteen [14] shall be employed or permitted to work in any remunerative occupation in this State, except that during school vacation children under fourteen [14] years may be employed by their parents or guardians in occupations owned or controlled by them.”

Initiative Act No. 1 repeals “all acts or parts of acts inconsistent with any of the provisions of this Act ...”

As they relate to minors under fourteen years of age, the two Acts are inconsistent and the repealing clause speaks for itself.

The Democrat next asserts that Ark. Stat. Ann. § 81-701 does not apply in this case. This contention is grounded on the theory that the statute does not prevent a child under fourteen years from operating his own business. In other words, the Democrat contends this minor was an independent contractor and that his contract is not void but merely voidable.

Even if the boy were placed in that classification, the Democrat has contracted with him to work in a remunerative occupation. This is prohibited by the statute and Court’s Instruction No. 8 is therefore an incorrect statement of the law. Vacation employment under control of the parent excepted, we hold that the type of contractual arrangement herein utilized — whereby a child under fourteen years is employed or permitted to work in a remunerative occupation — violates the letter, the spirit, and the clear purposes of Initiative Act No. 1 of 1914. The purpose of the Act was set forth in Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S. W. 887 (1920):

“The object of the statute was to prevent boys under fourteen years of age from obtaining employment of any kind. Doubtless the Legislature had in view that boys under that age might seek employment of the kind in question in which they would be subject to dangers in driving about the streets and delivering goods which their immaturity could not guard against. The danger of the delivery wagon driven by the boy coming into collision with other vehicles and street ears was ever present while he was delivering goods; ...”

Here it should be pointed out that the right of the State to deny the parent the authority to bind a child of tender years to a labor contract — as did Act 96 of 1883 — is unquestioned. In the Terry Dairy Company case, our court quoted from Tiedeman on State and Federal Control of Persons and Property, as follows:

“So far as such regulations control and limit the powers of minors to contract for labor, there has never been, and never can be, any question as to their constitutionality. Minors are the wards of the the nation, and even the control of them by parents is subject to the unlimited supervisory control of the State. ’ ’

Our court gave Initiative Act No. 1 a liberal construction in Cox Cash Stores, Inc. v. Allen, 167 Ark. 364, 268 S. W. 361 (1925):

“To carry out the beneficent purposes of the Legislature, child labor acts should be given such broad and liberal meaning as can be read therefrom as to mitigate the evils or prevent the mischiefs which they are intended to obviate. In pursuance of its plan in the matter, the Legislature provided that no child under the age of fourteen shall be employed in any remunerative occupation, except that, during school vacation, they may be employed by their parents or guardians in occupations owned by them.”

Under the Democrat’s so-called “independent contract,” work was made available to this child which involved delivering three newspaper routes on a motor scooter in the city of El Dorado. He was also called upon by the Democrat to solicit insurance, and canvass for new customers at night. It would indeed be a most narrow construction to deny the boy the protection given him by the Child Labor Act of 19Í4 on the ground that he and his parents had contracted away that protection. Here, it should be noted that the child has no coverage under our Workmen’s Compensation Act, Ark. Stat. Ann. § 81-1302 (c) (1) (Repl. 1960).

Appellee argues that our Child Labor Act, passed in 1914, never contemplated the situation now before usy that at that time children were being exploited by employing them at low wages in occupations detrimental to their health, education, morality, and general welfare. In support of this. argument, appellee cites the Cox case. That same case holds that another end to be accomplished by the Act‘was to prevent the injury and maiming of children in hazardous occupations. The Act m'ay not have been important to the protection of newsboys in 1914, but in 1967 it should be considered very important. A plat of young Cage’s newspaper routes reveals that he served a well populated area of El Dor rado. In his area of service appear State Highway 15, Main Street, Warner Brown Hospital, the Youth Center, El Dorado-to-Camden Highway, Union Memorial Hospital, and numerous residential streets. Because of heavy vehicular traffic and his use of a motor scooter, it would be absurd to say that injury to this child should not have been reasonably anticipated.

Under the holding in Terry Dairy, and reiterated in Cox, this case should be reversed, with directions to the trial court to ascertain the damages. It was held in the Cox case that when the undisputed evidence shows the child to have been injured in the course of his employment, the trial court takes the question of proximate cause from the jury. The only other element necessary to complete the chain of proximate cause is that some injury should have been reasonably anticipated from hiring the child contrary to the provisions of the statute; this element is established by the law itself. In the case at hand, it was undisputed that Thomas Harvey Cage was thirteen years of age, that he was injured at a time- when he was delivering nerrspapers for the Democrat and under a relationship created.by the Democrat whereby Cage was engaged in remunerative work.

Beyers ed.

Harris, C. J., and Jones, J., concur.

Carletox Harris, Chief Justice,

concurring. I concur with the majority in its holding that this case should he reversed, hut I would reverse it solely on the basis that Tommy Cage was an employee of the Arkansas Democrat. I do not think it necessary in this case to reach’the question of what constitutes, “permitting” a child to work. This is a broad term (and a broad holding) with more than one interpretation, and the majority, holding today can extend much further than simply prohibiting a child less than 14 years old from selling newspapers. Likewise, I do not consider it essential to this decision to examine the question of whether an independent contract can be legally entered into between a publisher and a newsboy of this age, and not being vital, should not be passed upon.

As stated, in my view, based on the provisions of the Agreement between the Arkansas Democrat and Tommy, together with the acts of the parties established by the evidence, the boy was not an independent contractor, but was an employee of appellee, i.e., a master and servant relationship existed. .

Let us look at some of the definitions and decisions with reference to the term “independent contract- or.” Volume 1, Bouvier's Law Dictionary (Third Revision), Page 1533, defines an independent contractor as:

“One who, exercising an independent employment contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as. to the result of his work.
* # *
“A still broader definition has been given as follows: ‘Where a person is employed to perform a certain kind of work, *** the execution of which is left entirely to his discretion, without any restriction as to its exercise, and no limitation as to the authority conferred in respect to the same, and no provision is especially made as to the time in which the work is to be done***.”

This court, in Barr v. Matlock, 222 Ark. 260, 258 S. W. 2d 540 said:

“***One of the tests used to determine whether the relationship, in a case such as this, is. master-servant or independent contractor is. the control of the workman, the right to direct his work, and the right to discharge him from the work.”

In Hollingsworth and Fraizer v. Barnett, 226 Ark. 54, 287 S. W. 2d 888, we stated:

“The power of an employer to terminate the? employment at any time without liability is incompatible with the full control of the work which is usually enjoyed by an independent contractor and is a strong circumstance tending to show the subserviency of the workman.
“The fact that the employment contract was. for no specified time and could be terminated at will by appellant without liability, and that he reserved tlie right to make suggestions as to how the work should be done, are indicative of the relationship of employer-employee between appellant and appellee.”

With these rules, and tests in mind, let us briefly examine the testimony in this case.

Tommy Cage testified that he was hired by Charles N. Gentry, District Adviser for District No. 1 (which includes El Dorado) for the Arkansas Democrat. The boy testified that he was given specific delivery routes. .. he was directed to throw the papers in wax paper on rainy days.. .he could not take subscriptions on other routes, and if any subscriptions were taken on routes other than his own, the carrier boys of those routes would be credited with the subscriptions... .Gentry would pick up the newsboys once or twice per month in the evening, and they would work two or three hours at obtaining new subscriptions.. .he (Tommy) received directions (or training) in selling accident and health insurance which was offered only to subscribers of the Democrat.. .he delivered papers to prepaid subscribers (those who paid directly to the Democrat office). The testimony of Tommy as to his activities as a paper boy was pretty well substantiated by Mr. Gentry.

Y. M. Sorrells, Circulation Manager for the Arkansas Democrat, who signed the contract for appellee, testified that he was also resident agent for Continental Assurance Company, which was the company offering the health and accident insurance to Democrat subscribers, and he stated that appellee company received a small portion of the premiums paid for the insurance. Sorrells testified that the purpose in selling the policies was to hold' readership, and they were sold only to subscribers.

Under the provisions of the contract itself, Tommy was required to give two weeks written notice of the time he desired to terminate the contract, and he agreed that he would diligently maintain delivery service until the date of termination. The publisher, however, was given the right to cancel the agreement “with or without cause, at any time and without previous notice.” Furthermore, the written agreement recites that the distributor “will not distribute or sell either directly or indirectly, any other newspaper in the area in which he operates, during the period of this agreement and, during the period of three months immediately following the termination thereof.” ■ (Emphasis supplied.) This, last, of course, is actually a restrictive covenant, being, in effect, an agreement not to ^compete with the Arkansas Democrat. The usual consideration for such a covenant is simply the employment of the individual. In Bailey v. Kin 240 Ark. 245, 398, S. W. 2d 906, this court said:

“Appellant contends that there is no mutuality (of consideration), and the contract is thus void. He argues that, under the agreement, appellee did not have to employ Bailey for any particular length of time; appellee did not have to pay any specific amount of money; and could fire Bailey without cause. We do not agree with appellant’s contention. Numerous cases support the enforceability of protection covenants where the consideration is based simply upon employment. (Citing cases)”

A study of the testimony relating to Tommy’s activities, and the contract itself, under our holdings and recognized definitions of independent contractor, convinces me that a master-servant relationship existed between this boy and appellee. I would therefore, as stated at the outset, so hold, and reverse this case without considering the question of what constitutes “permitting” a child under 14 to engage in any employment for remuneration, nor would I pass, on the question of whether a valid relationship of independent contractor could be established.

I am authorized to to state that Jones, J., joins in this concurrence.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Billy Gross v. State of Arkansas
    5209
    412 S. W. 2d 279
    Opinion delivered March 13, 1967

      Charles H. Eddy, for appellant.

      Joe Purcell, Attorney General; William R. Hass, Asst. Atty, Gen., for appellee. ,
   John A. Fogleman, Justice.

Appellant Billy Gross was convicted of murder in the first degree in the Circuit Court of Conway County on March 5, 1964 and 'sentenced on March 19, 1964 to life imprisonment. He was charged with having killed one Frank Birch, alias Dutch Charton. No appeal was. taken from that conviction and sentence. On July 9, 1965, appellant filed a pleading he designated Petition! for Writ of Habeas Corpus, alleging that his conviction was void because of violation of his constitutional rights and offering newly discovered evidence. This evidence was alleged to be a statement o'f one Reverend Dewey Dill and wife that the deceased was alive several hours later than appellant claimed the evidence showed Birch was supposed to have died at appellant’s hands.

On August 27, 1965 appellant filed a petition for writ of error “Cora Nova” (coram nobis). In ihis pleading he alleged error on the part of the trial court in denying a mental examination of appellant before trial, in permitting an alleged relative of the deceased to sit on the jury, the failure of his appointed attorney to subpoena certain unnamed witnesses, the denial of his right of appeal by his attorney, and new evidence, the latter being that of Reverend O. D. Dili and wife. Attached was a statement signed by Reverend O. D. Dill relating an occasion of his having seen Frank Birch alive. On Decern-ber 7, 1965 appellant filed a motion for post-conviction hearing and review, purportedly under Criminal .Pro-, cednre Bule No. 1. In- addition' to repeating most -of the contents of'his. previous pleadings, appellant aileged other errors based on jury selection, separation of witnesses, admission of testimony, credibility, of witnesses, misconduct of officials toward the jury, refusal by prison officials of permission to write courts, denial of counsel, and withholding of evidence by the sheriff.

Hearing on the various motions and petitions of appellant was held by the trial court on March 7, 1966 at which time the court, after hearing the testimony of 0. D. Dill, Marlin Hawkins, Joe Quinn, L. M. Beid, Harry Locke and Joe Brewer, denied appellant a new trial on the ground of newly discovered evidence, that being the only ground of appellant’s, various motions then presented, appellant’s counsel having said that the testimony of 0. D. Dill was all the proof on behalf of appellant. Prom the order denying a new trial comes this appeal.

No evidence was offered in the trial court on any ground of appellant’s, motions except that of newly discovered evidence, and the brief on his behalf is also confined to this ground. Therefore, we have no basis for consideration of any other ground on this appeal.

As a motion for new- trial, appellant’s, pleadings, being filed after the expiration of the term at which he was convicted, came too late. Ark. Stat. Ann. § 43-2202 (Repl. 1964) ; Thomas v. State, 136 Ark. 290, 206 S. W. 435 ; State v. Martineau, 149 Ark. 237, 232 S. W. 609, cert. dismissed, Martineau v. State, 257 U. S. 665, 42 S. Ct. 52, 66 L. Ed. 424. Being thus tardily filed, it might properly have been stricken out. Delaney v. State, 212 Ark. 622, 207 S. W. 2d 37.

A writ of error coram nobis, does not lie to review an issue of fact or to contradict an adjudicated issue of fact. It is never a means of remedy upon the ground of newly discovered evidence. Howard v. State, 58 Ark. 229, 24 S. W. 8. Consequently, we will consider this, appeal on the motion for post-conviction relief under Criminal Procedure Rule No. 1. In doing- so, we will consider appellant’s contention that he was entitled to a new trial for newly discovered evidence (if indeed newly discovered evidence can actually be a proper basis under this rule). At best, we can only consider this ground for post-conviction relief on the same basis that Ave would consider a timely filed motion for new trial on the same ground.

NeAvly discovered evidence is one of the* least fa\Tored grounds of a motion for new trial. See 4 .Ark. Law 'ReAÚeAv 60. Such a motion is addressed to the sound legal discretion of the trial judge and an appellate court Avill interfere only in case of an apparent abuse of discretion or injustice to the movant. Ward v. State, 85 Ark. 179, 107 S. W. 677 ; Osborne v. State, 96 Ark. 400, 132 S. W. 210 ; Russell v. State, 97 Ark. 92, 133 S. W. 188 ; Huckabee v. State, 174 Ark. 859, 296 S. W. 716. One Avho merely states that new evidence in his favor has been discovered subsequent to his trial has failed to meet the' requirements for a new trial on this basis. Taylor v. State, 230 Ark. 809, 327 S. W. 2d 6. He must show clearly that the eAÚdence has been discovered since the trial. White v. State, 17 Ark. 404 ; Reeder v. State, 181 Ark. 813, 27 S. W. 2d 989 ; Thurman v. State, 211 Ark. 819, 204 S. W. 2d 155. Such a motion is also properly overruled if the applicant therefor does not state acts on his part which constitute reasonable diligence, to discover the evidence before trial. Ward v. State, supra. He should state why he had not discovered the evidence earlier. Young v. State, 99 Ark. 407, 138 S. W. 475. In this regard, the only evidence offered was the testimony of O. D. Dill, although it is intimated in appellant’s pleadings that Dill’s knowledge came to the former’s attention by virtue of a letter from Dill dated March 4, 1965. While Dill first testified., that-he had never mentioned his seeing the deceased after Birch was supposed to have been dead, he admitted on cross-examination that he told certain named neighbors that he had seen “Dutch” alive on the morning* following the time these neighbors suggested he had been killed. This conversation took place before the trial when the parties were cleaning up the house of the deceased. Dill then states that he did not have an opportunity to tell appellant’s mother about this until the time of her husband’s funeral, but that Mrs. Gross had already received the information from Mrs. Wilma Hall. Dill’s, excuse for not disclosing his information to any official or to the appellant was that because of a bleeding ulcer he did not figure he needed to be a witness. Later, on further cross-examination, Dill admitted that he was one of the closest neighbors of the deceased, that he told various neighbors, that if Birch was killed on Saturday night, witness had seen him Sunday morning, that he first told a Mr. Bach-maa about a week later, and that he had made the information available to appellant's mother on the same date deceased's body was discovered. It may be that Dill was talking about the body of the father of appellant, but he might well have been talking, about the body of Birch. Although Dill was a pallbearer at the elder Gross’s, funeral, he could place the date only as being in 1963, but could not state the day of the week, date, or month. He also placed the trial of Billy Gross as being early in 1963, although he had fixed the time, that he had seem Birch alive as being on the 5th Sunday in September, 1963.

Neither appellant nor his mother testified, but his motion states that he, his attorney and his parents, on March 2, 1964 joined in a request for a mental examination of appellant, justifying the inference that he and his attorney were in communication with his mother. Mrs. Hall did not testify either, but appellant’s motion alleged that Mrs. Hall had advised the sheriff of Dill’s having seen Birch on the date in question before Gross’s trial. After a careful review of the record we find no showing of reasonable diligence on the part of appellant to discover the evidence relied upon, or of evidence of that nature.

There are other grounds, however, upon which the trial judge in the exercise of sound judicial discretion might properly have denied appellant’s motion. The mere fact that the purported evidence would he contradictory to that offered at the trial by the State is insufficient. Osborne v. State, 96 Ark. 400, 132 S. W. 210, It must also be shown that, because of the proffered evidence, a different result upon a new trial is probable. Bixby v. State, 15 Ark. 395 ; Missouri Pacific Transp. Co. v. Priest, 200 Ark. 613, 140 S. W. 2d 993. See 66 C.J.S., 472, New Trial, § 196 (3).

The determination of whether the application for a new trial because of newly discovered evidence is in good faith and the weight and sufficiency of the evidence in support of the motion are within the discretion of the trial judge. Bixby v. State, supra ; Arkadelphia Lumber Co. v. Posey, 74 Ark. 377, 85 S. W. 1127 ; and see 4 Ark. Law Rev. 63 ; 39 Am. Jur. 197, New Trial, § 198 ; 66 C. J. S., 470, New Trial, § 196 (2). In order to justify the granting of a motion for new trial, the evidence in support thereof should be clear and satisfactory, and the trial court’s action thereon should not be disturbed unless a manifest injustice has been done. 39 Am. Jur. 197, New Trial, § 198.

At the hearing, objection was made to the testimony of Joe Quinn and Harry Locke. Their testimony was about appellant’s admissions of guilt voluntarily made to them (a deputy sheriff and state policeman, respectively) while they were transporting him to the state penitentiary immediately after he was sentenced. In order for the court to determine whether the motion was made in good faith and the probability of a different result upon a new trial, it was proper for the court to hear witnesses. It was also proper for the court to consider any evidence contradictory to that offered by appellant. Any admission of guilt on the part of appellant would certainly be in contradiction of testimony of Dill that Frank Birch was alive later than his death was supposed to have resulted from acts of appellant and would tend to render a different result on a new trial unlikely. It would also indicate a lack of good faith on the part of appellant in making his motions. The same may be said of the admission of photographs of the deceased taken on the date Dill claimed to have seen Birch and showing the bodj- of the deceased with elotíiing appearing to be in colors greatly different from those described by Dill. In Jones v. State, 224 Ark. 134, 273 S. W. 2d 534, this court affirmed the action of the trial court denying a new trial on oral testimony contradictory of evidence in support of the motion.

It would unduly extend this opinion to dwell upon other uncertainties and contradictions in the testimony of Dill, the only witness offered by appellant at the hearing. Although it was alleged that Dill’s wife was along and saw Birch at the same time he did, she did not testify. There,is no contradiction of the testimony of the officers as to appellant’s admission of,guilt.

The trial court is required to determine the issues by Criminal Procedure Rule No. 1. It was that court’s opinion that the testimony of appellant’s only witness would not justify a new trial. We cannot say that there was any abuse of discretion in so finding.

The order of the trial court overruling the motion is affirmed.


author:
J .FRed Jones, Justice,
      CoNley Byrd, Justice,

text:
    Billy Joe Cassell, Richard Van Thorn, Billy Joe Thorn and Robert Thomas Thorn v. State
    5244
    412 S. W. 2d 610
    Opinion delivered March. 13, 1967
    [Rehearing denied April 10, 1967.]

      II ark ness, Friedman & Kusin, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   J .FRed Jones, Justice,

The appellants were arrested for speeding about 3:00 a.m. on the morning of May 5, 1966, in the City of Texarkana, Arkansas. A search of their automobile revealed an assortment of tools and they were arrested, tried and convicted on a charge of possession of burglar’s tools and sentenced to two years each in the state penitentiary. They have appealed their conviction to this court.

When arrested on the speeding charge, two walkie-talkie radios were visible through the rear window of the automobile, three of the occupants were lying down inside the car, gloves were scattered around in the automobile and the driver had a pair of wire pliers protruding from his pocket. During the investigation of the speeding charge, another officer was. summoned and subsequent searches of the car’s trunk and interior revealed a quantity of tools consisting of forty-seven different items including tire tools, saws, electric drill, hammers, walkie-talkies, several pairs of gloves, extra license plate, pry bars, punches, chisels, sledge hammer, pliers, and four extra pair of shoes.

The police officers testified at the trial that the search was with the consent of the driver, who claimed to be the owner of the automobile. The defendants offered no evidence to refute this testimony.

The appellants have designated the following eight points upon which they rely for reversal:

“1. The Court erred in overruling Defendant’s motion to suppress State’s, testimony concerning arrest.
“2. The Court erred in overruling Defendant’s motion to suppress or limit evidence.
“3. The Court erred in overruling Defendant’s motion for severance on behalf of Billy Joe Thorn.
“4. The Court erred in overruling Defendant’s motion for severance on behalf of Billy Joe Cassell.
“5. The Court erred in overruling Defendant’s motion for severance on behalf of Bichard Van Thorn.
“6. The Court erred in overruling the objection to the answer given by Officer Copelin on page 43 of the transcript as being not responsive.
“7. The judgments of the trial court are contrary to the evidence.
“8. The judgments of the trial court are contrary to law.”

This court has held that a motion for new trial is still required in criminal cases and that Act 555 of 1963 applies only to civil cases. McConnell v. State, 227 Ark. 988, 302 S. W. 2d. 805. The record before us in this ¿¡áse contains only the trial court’s order overruling a motion for new trial and a docket entry specifying that such a motion was made, overruled and an exception taken, but the motion if made, and the grounds upon which it was based, have not been made a part- of the record on this appeal.

The appellants contend that the court’s ruling in allowing the three investigating officers to testify, and also that the introduction of the tools in evidence was error, but there is no record of a motion for a new trial before us and no bill of exceptions or assignment of error relating to the testimony of those witnesses who introduced the tools into evidence.

In the recent case of Randell v. State, 239 Ark. 312 389 S. W. 2d. 229, the defendants were arrested and convicted under a charge of possession of burglar’s tools. The defendants raised the issue that the court had erred in admitting evidence of certain tools discovered by the sheriff after the defendant’s arrest, and on that point-this court said:

“To duly preserve a point for presentation to this court in a felony ease, like the one here, there must be: (1) an objection; (2) an exception; and (3) the point must be carried forward in the motion for new trial.”

As the attorney for the State points out in the case at bar, the third element was and is missing in this case, as it was in the Randell case, supra.

In the earlier case of Yarbrough v. State, 206 Ark. 549, 167 S. W. 2d, 142, this court had occasion to explain the necessary procedure in preserving a point on appeal-, and we did so in these Avords:

“On appeal from the circuit court, this court only reviews errors appearing in the record. The complaining party must first make an objection in' the trial court, and this calls for a ruling on his objections. An exception must be taken to an adverse ruling on the objection, which ‘directs attention to and fastens the objection for a review on appeal.’ The matter complained of, together with the objections and the exceptions to the ruling of the court, must be brought into the record by a bill of exceptions ; and the motion 'for a. new trial can serve no other purpose than to assign the ruling or action of the court as error.”

This view was reaffirmed in Chandler v. State, 205 Ark. 74, 167 S. W. 2d. 142, where in reviewing a felony conviction, we said:

“These assignments of error relate, of course, to matters occurring during the progress of the trial and can only be brought into the record for our review by a bill of exceptions.”

The appellants also argue that the trial court erred in overruling the motions for severance made by three of the defendants. This ground has not been brought forward in a bill of exceptions or on a motion for new trial.

The granting of severance is a matter within the sound discretion of the trial court, and the trial court’s orders in relation thereto will not be disturbed on appeal unless there is evidence in the record indicating an abuse of discretion. The record before us reveals no such abuse. The judgment of the trial court is affirmed.

Affirmed.

Bitowx, J. disqualified and not participating

Byrd, J., dissents.

CoNley Byrd, Justice,

dissenting. I dissent from that part of the majority opinion that holds that they will' not pass upon the alleged errors relating to unlawful search and seizure of an automobile because no motion for a new trial appears in- the record. The majority opinion admits, however, that an order was ' made overruling a motion for a new trial.

In Henry v. State of Mississippi, 379 U. S. 443, 85 S. Ct. 564 (1965), the court had before it an alleged unlawful search and seizure of an automobile- in which the Supreme Court of Mississippi had held that the petitioner had waived his objection to the alleged illegal search because of a procedural, requirement that an objection to illegal evidence be made at the time the evidence was introduced. In distinguishing between state substantive grounds and state procedural grounds for purposes of review of federal rights, the United States Supreme Court said:

‘ ‘... These cases settle the proposition that a litigant’s procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State’s insistence on compliance with its procedural rule serves a legitimate state interest. In every cas-e we must inquire whether the enforcement of a procedural forfeiture serves, such a state interest. If it does not, the state procedural rule ought not be permitted to bar vindication of important federal rights.
“The Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence clearly does serve a legitimate state interest. By immediately apprising the trial judge of.the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration and a reversal and new trial avoided. But on the record before us it appears that this purpose of the contemporaneous-objection rule may have been substantially served by petitioner’s motion at the close of the State’s evidence asking for a directed verdict because of the erroneous admission of the officer’s testimony. For at this stage the trial judge could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other appropriate corrective action....”

The requirement in our adjudicated cases that the matters brought forward on appeal must be set forth in the motion for a new trial appears to be a carry-over from the procedure in effect at the time the Criminal Code? was passed in 1869. It is not supported by the Criminal Code § 332 (Ark. Stat. Ann. § 43-2725 [Repl. 1964]), which specifically provides:

“A judgment of conviction shall only be reversed for the following errors of law to the. defendant’s prejudice appearing upon record:
First. An error of the circuit court in admitting or rejecting important evidence.
Second. An error in instructing or in refusing to instruct the jury.
Third. An error in failing to arrest the judgment.
Fourth. An error in allowing or disallowing a peremptory challenge.
Fifth. An error in overruling a motion for a new trial.”

Furthermore, under Criminal Procedure Rule No. 1, 239 Ark. 850a, appellants, immediately upon affirmance of this decision, will be entitled to apply to this court for permission to go before the? trial court for purposes of having their constitutional rights adjudicated.

Not only does the procedure employed by the majority raise a question as to the constitutional validity of our state procedure under the due process clause, but it in effect sends appellants on a round robin to accomplish what is before the court at this time on a record sufficient to present the issues upon which they rely to reverse their convictions. In fact, this is the first ground set forth in section 332, above, for a reversal.

This round robin procedure, however, does make a difference to appellants, for upon affirmance of the judgment they will be incarcerated in .the state penitentiary without right of bond, and under Criminal Procedure Rule No. 1 no provision is made for a bond. Furthermore, they are not entitled to apply'to the federal courts for habeas corpus relief on their alleged federal constitutional rights until after they have exhausted their state court remedies. Since they have been sentenced to only two years., our procedure may result in their serving a substantial portion of their sentences before they have obtained a final determination of their constitutional rights. If we should rule on the alleged illegal search and seizure, and should the ruling be contrary to appellants ’ position, they could remain on bond pending a petition for certiorari to the United States Supreme Court or immediately apply for habeas corpus in the? federal district court.

For these reasons, I dissent to that part of the majority opinion which refuses to pass on these questions.


author: J. Fred JoNes, Justice.

text:
    Worth James Construction Company, a Corporation v. Jean Herring
    5-4135
    412 S. W. 2d 838
    Opinion delivered March 13, 1967
    [Rehearing denied Aprill.7, 1967.]

      Smith, Williams, Friday & Bowen by Boyce B. Love, for appellant.

      Patten & Brown by Gerland P. Patton, for appellee.
   J. Fred JoNes, Justice.

We are called on here to determine whether the trial court abused its discretion in setting aside a verdict and granting a new trial on motion of the appellee who had been awarded $2,500.00 in an action for personal injuries. Indeed we are called on to determine whether or not the trial court even had any discretion in the matter where the action is for injury to the person, but having concluded that the verdict she. dd have been set aside and a new trial granted for error in instruction, the trial court’s discretion becomes a minor issue.

Mrs. Jean Herring filed suit in the Pulaski County Circuit Court against Worth James Construction Company alleging damages for personal injuries as a proximate result of the negligence of defendant’s truck driver in driving defendant’s truck into the rear of plaintiff’s automobile as she slowed down to make a right hand turn from the highway.

The case was tried to a jury and a verdict was returned for plaintiff in the amount of $2,500.00. The verdict was s.et aside by the trial court and a new trial granted on motion of the plaintiff, for the reason that the verdict was contrary to the law, contrary to the evidence, contrary to the law and the evidence, and for the further reason that an instruction given by the court over the objection of the plaintiff, was error. The defendant has appealed and relies on one point:

“It was error for the trial court to set aside the verdict and judgment in favor of appellee and grant her a new trial.”

On November 23, 1964, the appellee and the appellant’s driver were d iving their respective vehicles the same direction on .Iwdney Parham Road in Pulaski County with appellant’s truck behind appellee’s automobile. Appellant’s truck .driver “speeded up” to cross a bridge before an oncoming automobile came onto the bridge and after observing appellee slowing down ahead of him in preparation to turn from the roadway, appellant’s driver skidded the truck sixty-six feet in an effort to stop, but was unable to avoid striking appellee’s automobile.

Appellee experienced neck, head and shoulder pains immediately following the collision. She was nervous and upset and the following morning she was vomiting and went to the doctor who prescribed muscle relaxants and medication for pain and to induce rest. This condition persisted and about two and a half weeks, later appellee developed a “lump” or choking sensation in her throat which was also associated with vomiting. She also began experiencing low back pain, as. well as the continued pain in the shoulders, head and neck.

The appellee in this case had injured her neck in an automobile accident in January 1961. She had injured her back trying to start a power lawn mower on July 19 or 20, 1964, and she had experienced a period of vomiting over a period of a week to ten days during November and December 1961.

On December 27, 1964, appellee was operated on for hiatal hernia and on March 1, 1965, for herniated intervertebral disc in the lumbar area of the back. The medical evidence is. to the effect that neither of these conditions was caused by the collision of November 23, 1964, but that the symptoms of both conditions were aggravated by the collision.

In connection with appellee’s operation for the hia-tal hernia, an incision was made from beneath the left breast to the right side of the abdomen. An additional incision was made in the left side through which a tube was inserted into the stomach' for drainage following the operation, and appellee was fed intraveneously for a period of five days.

About the second or third day following the operation, appellee noticed the loss of sensation in two fingers on her right hand. The evidence is uncontroverted that this symptom was attributable to an injury in the nature of a bruise to the ulna nerve and the severity of this condition continued to increase until by April 14, 1965, there was an 80 to 100 per cent loss of the function of the ulna nerve in appellee’s right arm. Although there had been considerable improvement, the function of this nerve 1 ^d not been completely restored at the time of trial, ana this damage to the ulna nerve was an element of damage alleged by appellee in her amended complaint.

Appellant answered that the injury to the ulna nerve “was a result of the improper positioning of the plaintiff on the operating table in the recovery room or in her bed all in the course of or subsequent to an operation for a hernia repair which took place on December 30, 1964, and the improper positioning was an intervening event completely independent of any conduct of the defendant or its agents, and no act of the defendant or its agents was a proximate cause of said damage.”

Dr. Kenneth Jones and Dr. Jack Downs were the only doctors who had treated the appellee and were the only doctors who testified at the trial.

As to the ulna nerve injury, Dr. Jones testified that lie. didn’t see appellee when she first developed the ulna nerve symptoms and that he didn’t know how it came on, but that he couldn’t explain it on the basis of a rear end collision; that it came on during the period of time appellee was in the hospital for hernia surgery and that it is reasonable to assume something happened during that period of time. That any patient who is confined to bed may encounter these complications from simply being in bed and ushing themselves about.

As to the ulna nerve injury, Dr. Downs, testified that several days, he didn’t remember exactly how many days,

“* * * after Mrs. Herring’s surgery she complained of some numbness and loss of sensation of tbe distribution of her right ulna nerve and that is something that happens on occasions, occasionally in bed-fast patients and there is not really anything that can be done about it. It is due to the pressure that is put on the nerve either from lying still with one arm extended for perhaps intravenous medication running in the arm or scooting around on the elbows in bed.”
* # *
“I think it is calculated risk or hazard like any other hazard the patient assumes or risks that they assume when under surgery or enter the hospital or become immobile, it is a hazard of having to lie? down and be still.”

Dr. Downs testified that it would be a fair assumption that the injury to the ulna nerve arose out of the surgery and treatment for the hiatal hernia, and on cross examination, Dr. Downs testified as follows:-

“Q All right now just briefly now about this ulna nerve problem. I believe that you told me when I took your deposition that the ulna nerve problem probably dates back to the incident that occurred on the operating table, in the recovery room or within a few days after the operation while still in bed. Is that correct?
A Yes.
Q How would that generally happen, by. the "elbow getting on a sharp place and putting pressure on the nerve. Is that correct?
A It wouldn’t have to be a sharp place. The ulna nerve is very superficial at the back side of the elbow and pressure on a mattress or anything pressure on the nerve in that area for a while. We don’t know exactly how long it ,takes to bruise the nerve and again there are all degrees of this thing which would cause the injury.
Q You don’t mean a flat curve, you mean a corner?
A Well probably a corner.
Q Normal lying in bed would not cause this?
A I think if you had a patient who was scooting around on their elbow in bed as patients certainly do after surgery that might be of sufficient severity to cause it. It is hard.to pin the thing down.
Q I know but just the arm lying in normal position on a bed would not cause it?
A I think if that arm was pinned down with intravenous solution running in it for two or three hours it certainly would cause .it.”

■ At the close of the evidence, including the above medical testimony, as appellee’s requested instruction No. 9, the court gave A. M. I. instruction 501 on “proximate cause” as follows:

“The law frequently uses the expression ‘proximate cause,’- with which you may not be familiar. When I use the expression ‘proximate cause,’ I mean a cause which, in a .natural and continuous sequence, produces damage and without which the damage would not have occurred.
“ [This does not mean that the law recognizes only one proximate cause of damag’e. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.] ”

And over appellee’s objections,.the trial court gave as appellant’s instruction No. 4, A. M. I. instruction No. 503, as follows:

“If, following any act or omission of a party, an event intervened which, in itself caused any damage, completely independent of the conduct of that party, then his act or omission was not a proximate cause of the damage.”

The appellant first argues that as a matter of law the trial court had no discretion in setting the verdict aside and granting a new trial in this case, and in support of its argument, cite the following cases:

“Woodard v. Sanderson, 83 Ok. 173, 201 P. 361 ; Sharpe v. O’Brien, 39 Ind. 501 ; Metropolitan Street R. Co. v. O’Neil, 68 Kan. 252, 74 Pac, 1105 ; Blakely v. Omaha & C. B. Street R. Co., 94 Neb. 119, 142 N. W. 525.”

Ark. Stat. Ann. § 27-1901 (Repl. 1962) defines “new trial” and sets out eight grounds for a .new trial, the fifth one being as follows:

“Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property.”

The next section, Ark. Stat. Ann. § 27-1902 (Repl. 1962) is as follows:

“A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.”

The Oklahoma, Indiana, Kansas and Nebraska statutes under, which the cases cited by appellant were decided, contained the same provision as Ark. Stat. Ann. § 27-1902 supra, and the Supreme Courts of those states interpreted this provision exactly as appellant argues that we should interpret it in this case.

This provision in many of the state statutes was a carry over from the common law, and in Oklahoma, Indiana, Kansas and Nebraska, has been changed or repealed by later statutory enactment. (See also Drury v. Franks, 247 Ky. 758, 57 S. W. 2d. 969).

We are cited no case, and have found none, in which this court has followed or refused to follow the decisions of the Oklahoma, Indiana, Kansas and Nebraska Courts in their interpretation of this provision of their statutes, and because of the rule laid down in our own decisions, where other error appears in the record, we find it unnecessary to follow, or refuse to follow, the decisions from other states in this case.

In a case such as this, however, where no other error appears in the record, we think out statute § 27-1902 might well he interpreted to mean that

“a new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation (where injury is not susceptible -of definite pecuniary measurement such as in mental anguish, pain and suffering or damage to the reputation) nor in any other action where the damages shall equal the actual pecuniary injury sustained.”

It does not follow that such interpretation should necessarily apply however, where the injury is susceptible of definite pecuniary measurement such as in loss of earnings and medical expense, and where the amount of the verdict may he based on comparative negligence. Sterns M. Law Jr. v. Scottie Collins et ux, 242 Ark. 83, 411 S. W. 2d 877.

This court has h^ld that a verdict for one dollar amounts to a denial of damages in an action for damages to the person where the proven pecuniary damage amounted to much more than that, and that such verdict should he set aside and a new trial granted. Dunbar v. Cowger, 68 Ark. 444, 59 S. W. 951 ; see Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137 (where, however, property as well as personal injury was involved).

We have consistently held that it is not error to grant a new trial on the motion of a plaintiff who has been awarded damages for injury to the person where other reversible error appears in the record.

In the recent case of Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191, 343 S. W. 2d. 411, Billy Linx-wiler received a gunshot wound through the negligent act of the defendant’s employee. The appellant, Billy’s father, sued to recover for the medical and hospital expenses incurred as a result of .the wound and 'also for the injuries sustained by his son. There was a jury verdict for Billy’s personal injuries in the amount of $1,-400.00, but no award was given the father in his own right. Both parties, appealed.

The trial court had erred in its instruction pertaining to the duty by the owner of the premises to one who goes on the premises as a volunteer, and in that case this court said:

“Upon the direct appeal Linxwiler, both in his own right and as his son’s next friend, relies for reversal upon the rule that a plaintiff may complain of an inadequate judgment if the record discloses other error of a substantial and prejudicial nature. Smith v. Arkansas Power & Light Co., 191 Ark. 389, 86 S. W. 2d. 411. This verdict must fairly be regarded as inadequate. Young Linxwiler suffered much pain, underwent an operation, and spent two weeks in a hospital. The injury has resulted in a slight but per manent malfunctioning of his right eye. It is shown without-dispute that the medical and hospital expenses were more than $875. In view of the inadequacy of. the verdict the appellant is entitled to assert other errors.”

In the case of Smith v. Arkansas Power & Light Company, 191 Ark. 389, 86 S. W. 2d. 28, the appellant’s automobile and appellee’s street car collided causing injury to plaintiff’s person. The jury returned a verdict for $5,000.00. The plaintiff appealed on-the ground that error in the trial court resulted in' damages grossly inadequate to compensate for his injuries. The trial court had committed error in failing to give a proper instruction, and this court in that case said:

“When the undisputed evidence shows that plaintiff is entitled to recover substantial damages., a judgment will be reversed which awards only nominal damages, because a judgment for nominal damages is, in effect, a refusal to assess damages. When substantial damages are awarded,' a judgment will not bo reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages. But a judgment even for substantial damages will be reversed where the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case. This is on the theory, as was said in the Kimbrough case, supra, that but for such error damages might have been properly assessed.”

Later in the same case this court stated:

“Yet notwithstanding these facts, we would not, under the authority of the cases above cited, reyerse the judgment for its inadequacy of compensation if the record contained no prejudicial error except that of assessing the damages, inasmuch as substantial damages were awarded. But, if there was other error of a material and prejudicial nature, the judgment must be reversed, notwithstanding the award of substantial, and not nominal, damages.”

See also McAdams v. Stevens, 240 Ark. 258.

So, in the case at bar, we conclude that under the evidence in this case, the injury to appellee’s ulna nerve was not an “intervening cause” as contemplated in A. M.I. instruction No. 503, and as given by the trial court as appellant’s instruction No. 4. (See 65 C.J.S. 111-113 and the numerous casés there cited).

In the case of Reggs v. Akers Motor Lines, 63 S.E. 2d. 197, the North Carolina Court said:

“A superseding intervening cause is one which operated in succession to a prior wrong, as the proximate cause on an injury. 38 A.J. 772. The test of the sufficiency of an intervening cause to defeat recovery for negligence is not to be found in the mere fact of its existence, but rather in its nature and the manner in which it affects the continuity of operation of the primary cause, or the connection between it and the injury.”

In the California case of Gibson v. Garcia, 216 Pac. 2d. 119, the court said:

“It is well settled, that proximate causation is not always arrested by the intervention of an independent force. If the original negligence continues to the time of injury and contributes substantially thereto in conjunction with the intervening act, each may be a proximate concurring cause for which liability may be imposed.”

In the Wisconsin case of Mertino v. Mutual Service Casualty, Ins. Co., 127 N.W. 2d. 741, we find this statement:

“Essentially in order for the intervening Act of negligence to constitute a superceding cause it must he such that the conscience of the court would he shocked if the first actor were not relieved from liability.”

In the case of Butler v. Arkansas Power & Light Company, 186 Ark. 611, the plaintiff received injuries while alighting from appellee’s street car. The complaint alleged that the street car started up prematurely, and negligence by the motorman for raising the car’s step tripping her. This court speaking in regard to intervening cause, said:

“There was testimony tending to show that the passenger’s condition had been made worse by her conduct and confinement since her fall. Such testimony might have some relevancy on the question of the measure of damages, but it could not affect the question of the negligence of the carrier. The negligence of the carrier either caused the passenger to fall, or it did not cause her to fall, and the question of its. negligence in this respect cannot he determined by a consideration of the subsequent conduct of the injured party.”

As stated by the Supreme Court of Oklahoma in the case of Kansas City, M. & O. Ry. Co., et al v. Allums, 271 Pac. 949:

“. . . the showing for a reversal should he much stronger where the error assigned is the granting of a new trial than where it is a refusal.”

So, we conclude as in the Butler case, supra, that appellee’s hiatal hernia either was or was not caused or aggravated to the point of hospitalization and surgery by appellant’s negligence, and that the question of negligence in this respect cannot he determined hy a consideration of the subsequent conduct of appellee in scooting around on her elbow or lying still in bed, or by having her arm extended for intravenous feeding while undergoing or recovering from surgery for repair of the hernia.

We are of the opinion that A.M.I. instruction 501 on “proximate cause” given by the trial court as ap-pellee’s instruction No. 9, thoroughly covered appellee’s ulna nerve injury under the evidence in this case.

For error in giving appellee’s instruction No. 4, the action of the trial is hereby affirmed.

Affirmed.


author: ■ J. Fred Jokes, Justice.

text:
    State of Arkansas, ex rel Joe Purcell, Attorney General and Walter Green, v. Jimmy Jones, State Auditor, Nancy J. Hall, State Treasurer, and Cecil Alexander et al Legislators
    5-4260
    412 S. W. 2d 284
    Opinion delivered March 13, 1967

      Joe Puroell, Attorney General; Thomas A. Glase„ Asst. Atty. Gen., for appellant.

      Walls Trimble and Bruce T. Bullion, for appellee.
   ■ J. Fred Jokes, Justice.

This appeal is from an adverse decision of the Pulaski County Chancery Court in a taxpayer’s suit to test the constitutionality of Act 85 of the Acts of the General Assembly of the State of Arkansas for 1967.

On January 19, 1967, by proper procedure, the 66th General Assembly extended the regular session of the Legislature beyond the period of sixty days and, thereafter duly enacted Act 85, which appropriated revenues to pay the members of the Legislature for their services on a per diem basis of $20.00 per day during the extended portion of the session.. The germane portion of Act 85 is as follows:

“SECTION 1. There is hereby appropriated, to be payable? from the Constitutional and Fiscal Agencies Fund, for the payment of per diem of members of the House of Representatives of the Regular Session, of the 66th General Assembly for additional days served during the extended session of the regular session of the 66th General Assembly, the sum of $4,000.00. The funds appropriated herein shall be distributed in the same manner provided by Act 2 of 1967 concerning disbursement of funds appropriated for the House of Representatives of the 66th General Assembly.
“SECTION 2. There is hereby appropriated, to be payable from the Constitutional and Fiscal Agencies Fund, for the payment of per diem of members of the Senate of the Regular Session of the 66th General Assembly for additional days served during the extended session of the regular session of the 66th General Assembly, the sum of $1,400.00. The funds appropriated herein shall be disbursed in the same manner provided by Act 1 of 1967 concerning disbursement of funds appropriated for- the Senate of the 66th General Assembly.”

The state of Arkansas through its Attorney General intervened as a petitioner and the members of the Legislature intervened as respondents. The Chancellor held Act 85 to be constitutional and petitioners have appealed to this court.

We have been furnished excellent briefs on both sides of the issues in this case, and both the Attorney General for the State, and the attorney for the members of the Legislature, presented very able oral arguments in support of their opposing views of the issue involved.

Appellants rely on the following two points for reversal:

“Section 16 of Article 5 of the State Constitution as amended by Amendment No. 5, prohibits the General Assembly from receiving any per diem in an extended session.
“Even if Section 16 of Article 5 of the State Constitution, as amended by Amendment No. 5, was construed as having been repealed in its entirety, Amendment No. 48 does not authorize payment of per diem beyond the Regular Session of sixty (60) days.”

Article 5 of the Constitution of the State of Arkansas is entitled “Legislative Department” and contains forty-one sections. Section 5, entitled “Time of Meeting” provides that the General Assembly shall meet at the seat of government every two years on the first Tuesday after the second Monday in November until said time be altered by law. This time has been altered to the second Monday in January (Ark. Stat. Ann. § 4-101 [1956 Repl.]).

We are concerned' here with Section 17 entitled “Duration of Sessions,” and also with Section 16 entitled “Per Diem and Mileage of General Assembly.” Amendment No. 48 is the most recent of five amendments affecting Section 16 of Article 5 since the Constitution was adopted in 1874, and we are especially concerned with what effect subsequent amendments to the Constitution have had on Section 16.

When the Constitution was adopted in 1874, Section 16 of Article 5 read as follows:

“The members of the General Assembly shall receive such per diem pay and mileage for their services as shall be fixed by law. No member of either house shall, during the term for which he has. been elected, receive any increase of pay for his services under any law passed during such term. The term of all members, of the General Assembly shall begin on the day of their election.”

By amendment in 1902, the words “per diem,” were deleted from Section 16 (Acts 1901 p. 412).

By Amendment No. 5, adopted in 1913, (Acts 1913 p. 1525) Section 16 of Article 5 was amended to read as follows:

“Each member of the General Assembly shall receive six dollars per day for his services during the first sixty days of any régular session of the General Assembly, and if any regular session shall he extended, such member shall serve without further per diem. Each member of the General Assembly shall also receive ten cents per mile for each mile traveled in going to and returning from the seat of government, over the most direct and practicable route. When convened in extraordinary session by the Governor, they shall each receive three dollars per day for their services, during' the first fifteen days and if such extraordinary session shall extend beyond' fifteen days., they shall receive no further per diem. They shall be entitled to the same mileage for any extraordinary session as herein provided for regular sessions. The terms of all members of the General Assembly shall begin on the day of their election, and they shall receive no compensation, perquisite or allowance whatever, except as. herein provided.” (emphasis supplied)

It is the italicized portion of this amendment which petitioners contend voids Act 85.

In 1927 Amendment No. 15 to the Constitution was adopted (Acts 1927 p. 1189, Acts. 1929 p. 1519). This amendment is as follows:

“The members of the General Assembly shall receive as their salary the snm of one thousand ($1,-000) dollars, except the Speaker of the House of Representatives, who shall receive his salary of eleven hundred ($1,100) dollars for each period of two (2) yt rsj and in addition to such salary the members of the General Assembly shall receive five cents per mile for each mile traveled in going to and returning from the seat of government over the*, most direct route; and provided further that when said members are required to attend an extraordinary session of the General Assembly, they shall receive in addition to the salary herein provided the sum of $6 per day for each day they are required to attend, and mileage, at thq same rate herein provided.”

This Amendment No. 15 contained a clause repealing all parts of the Constitution in conflict with it. It will be noted that by this Amendment No. 15, the members of the General Assembly were placed on a biannual salary for the first time since the adoption of the Constitution in 1874, and after the adoption of Amendment 15, the members of the General Assembly were no longer entitled to per diem pay except when required to attend an extraordinary session.

In 1945 Amendment 37 was adopted (Acts 1945 p. 765, Acts 1947 p. 1076). Section 3 of this amendment is as follows:

“The members of the General Assembly shall receive as their sa^ry the sum of twelve hundred ($1,200) dollars, e. ■'ept the Speaker of the House of Representatives, who shall receive his salary of thirteen hundred and fifty ($1,350) dollars, for each period of two (2) years; and in addition to such salary the members of the General Assembly shall receive five cents per mile for each mile traveled in going to and returning from the seat of government over the most direct and practicable route; and provided, further, that when said members are required to attend an extraordinary session of the General Assembly, they shall receive in addition to sálary herein provided, the sum of $6 per day for each day they are required to attend, and mileage?, at the same rate herein provided. ’ ’

This amendment also specifically repealed all parts of the Constitution in conflict with it, and Section 3 of this Amendment 37, simply increased the biannual salary of the members of the General Assembly from $1,000.00 to $1,200.00 except the Speaker of the House, and his salary was raised from $1,100.00 to $1,350.00.

By adoption of Amendment No. 37, the members of the General Assembly were given the first raise in salary they had received since they were first placed on a biannual salary in 1927, and again no per diem pay was provided for in Amendment No. 37 except the six dollars per day for each day they were required to attend extraordinary sessions.

After the adoption of Amendment No. 37, the members of the General Assembly received no further increase in salary for the next thirteen years until Amendment No. 48 was adopted in 1957. (Acts 1957 p. 1488). Amendment No. 48 is as follows:

“The members of the General Assembly shall receive as their salary the sum of Twelve Hundred ($1,200.00) Dollars per annum, except the Speaker of the House of Representatives, who shall receive his salary of Thirteen Hundred and Fifty ($1,350.-00) Dollars per annum, with such salaries to be payable in equal monthly installments; and in addition to such salary the members of the General Assembly shall receive Twenty ($20.00) Dollars per day for each day the General Assembly is in regular session, and shall receive five cents per mile for each mile traveled in going to and returning from the seat of government over the most direct and practicable route; and provided, further, that when said members, are required to attend an extraordinary session of the General Assembly, they shall receive in addition to salary herein provided,- the sum of Six ($6.00) Dollars per day for each day they are required to attend, and mileage, at the same rate herein provided.” ( mphasis supplied)
This amendment also provides that:
“All provisions of the Constitution of the State of Arkansas in conflict herewith are hereby repealed.”

Thus it is seen that Amendment No. 48 doubles the “salary” of the members of the General Assembly by changing the amount for each period of “two years” in Amendment No. 37 to the same amount “per annum” in Amendment No. 48. The “salary” is made payable in equal monthly installments by Amendment 48 and for the first time in approximately forty years, per diem pay was reinstated, this time at $20.00 per day for each day the General Assembly is in regular session, and with no additional limitations if such regular session is extended. For extraordinary sessions the sum was continued at $6.00 per day under Amendment No. 48.

We are of the opinion that the first point relied on by the appellants has already been answered adversely to their contentions in the case of Berry v. Gordon, 237 Ark. 547. In that case the constitutionality of Act 339 of the Arkansas Legislature vas under attack in a taxpayer’s suit to prevent the payment of certain extra expense funds to the Speaker of the House of Bepresentatives as well as to other state officers under the Act. In connection w:th the proper disposition of the problem in the Gordon case, it became necessary to examine Amendment No. 5 as to its validity since the adoption of later amendments including Amendment No. 48. In that case we held that Amendment No. 5 has been repealed by subsequent amendments, and that Amendment No. 48 is complete on the subject of compensation for the members of the G-eneral Assembly.

Part of the text of the opinion in the Gordon case is so germane to the issue here, we can do no better than quote from that decision xyhere Mr. Special Justice Boyd Tackett, speaking for this court said:

‘‘The two familiar rules or classifications applicable in determining whether or not provisions of the Constitution have been repealed are set forth in the case of Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649 :
“One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the latter one which governs the subject matter so far as relates to the conflicting provisions, and to that extent only.
“The other one is that a repeal by implication is accomplished where the Legislature takes, up the whole subject anew and covers the entire? ground of the subject matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new.
“Where there are two Acts on the same subject, the* rule is to give effect to both, if possible, but, if the two are repugnant in any of their provisions, the latter. Act, without any repealing clauses, operates to the extent of the repugnancy as a repeal of the first; and, even where two Acts are not in express terms repugnant, yet, if the latter Act covers, the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first Act, it will operate as a repeal of that Act.
‘ ‘ The rules of construction governing Constitutional Amendments are the same as the rules governing the construction of statutes — Bailey v. Abington, 201 Ark. 1072, 148 S. W. 2d. 176. It is a rule of universal application that the Constitution must be considered as a whole, and that, to get at the meaning of any part of it, we must read it in the light of other provisions, relating to the same subject. Chesshir v. Copeland, 182 Ark. 425, 32 S. W. 2d. 301. The Constitution is to be construed according to the sense of the terms used and the intention of its. authors. Rankin v. Jones, 224 Ark. 1001, 278 S. W. 2d. 646.
“Upon applying these applicable rules to determine whether the early Constitutional provisions have been repealed, considering all of the Constitutional provisions and Amendments as a whole, it is clear, concerning expense entitlements of the Speaker of the House, that Paragraph 3 of the Constitutional Amendment 15 repealed Constitutional Amendment 5, except the beginning date of terms of Members of the General Assembly, which was repealed by Section 6 of the Constitutional Amendment 23; that Section 3 of Constitutional Amendment 37 repealed Paragraph 3 of Constitutional Amendment 15; and that Constitutional Amendment 48 repealed Section 3 of Constitutional Amendment 37. Constitutional Amendment 48 is full and complete and covers the pertinent subject matter of Constitutional Amendment 5, Paragraph 3 of Constitutional Amendment 15, and Section 3 of Constitutional Amendment 37. It embraces new provisions, plainly showing that it was intended as a substitute for the former pertinent Constitutional Amendments. There were three Constitutional Amendments covering the subject matter of Constitutional Amendment 5 from 1913 until the adoption of Constitutional Amendment 48 in 1958 — -a period of 45 years — and had there been a desire to continue the pertinent prohibition contained in Constitutional Amendment 5, same would have been included in these Constitutional Amendments.”

The first sentence of Amendment 5 is the controlling part of that amendment, and is as follows:

“Each member of the General Assembly shall receive six dollars per day for his services during the first sixty days of any regular session of the General Assembly, and if any regular session shall be extended, such member shall serve without further per diem.” (emphasis supplied)

This amendment clearly recognizes the first sixty days of a regular session of 'the General Assembly to be no different from any additional days, of a regular session, but only provides per diem pay for the members of the General Assembly for the first sixty days of the regular session and no longer. There is no argument but that Amendment 48 repealed the first part of this compound sentence in Amendment No. 5, and we are of the opinion that it repealed the second part also.

Now as to the second point designated by appellants in their brief:

Sections 5 and 17 are the only sections of Article 5 of the Constitution providing for the meetings of the General Assembly. Section 5 of Article 5 only provides for the time of meeting of the General Assembly every two years, at the seat of government, and Section 17 limits these biennial sessions to sixty days in duration, unless-extended by a vote of two-thirds of the .members elected to each House of said General Assembly.

Section 5 of Article 5 refers to “meeting” of the General Assembly, and Section 17 refers to such meeting as the “regular biennial session.” By a vote of two-thirds of the members elected to each House of said General Assembly, the regular biennial session does not stop and another session begin. Bnt rather the regular biennial session under Section 17 simply fails to continue on for more than sixty days as a meeting' of the General Assembly unless two-thirds, of the members elected to each House of said General Assembly have voted to continue it.

There is only one kind, of session of the General Assembly provided for under “Legislative Department” in Article 5 of the Constitution, and that is ‘ ‘ the regular biennial session,”

The only other kind- of session of tbe General Assembly is provided for under the “Executive Department” in Article 6 of the Constitution. Section 19 of Article 6 authorizes the Governor to convene the General Assembly “on extraordinary occasions” under strict limitations as to matters to be acted on and tbe time and manner of remaining in session after the business set forth in the proclamation shall have been disposed of, as set out in Section 19,

Thus we now have, and have always bad, only two types of sessions of tbe General Assembly in Arkansas— the regular biennial sessions, which have come to be known as “regtílar session,” and sessions in which the Governor, by proclamation, convenes tbe General Assembly on extraordinary occasions,, which have come to be known as “special sessions.”

We are concerned in this case with the regular session of the General Assembly for 1967.

The regular biennial session of the present 1967 General Assembly could not exceed sixty days in duration, unless extended by a vote of two-thirds of tbe members elected to each House of said General Assembly. Two-thirds of the members elected to each house of said General Assembly have so voted, so now the regular biennial session of the present 1967 General Assembly is not limited to sixty days.

Having already held that Amendment No. 5 has been repealed by subsequent amendments, including Amendment No. 48, we now reach the question of whether or not the members of the General Assembly can legally draw per diem pay of $20.00 per day under authority of Amendment No. 48 for the period of time the General Assembly may be in session in excess of sixty days.

The Chancellor held that Amendment No. h was repealed by Amendment No. 48, and that Act 85 of the Acts of the 1967 General Assembly is constitutional and valid. We agree with the Chancellor on both points.

■ As already pointed out, we have concluded that there are only two classifications for legislative sessions in Arkansas- — -Regular and Special. We are not concerned here with a special session, and there is no doubt that a regular session may exceed sixty days by a vote of two-thirds of the members elected to each House of the General Assembly.

The per diem provision of Amendment No. 5 was actually repealed by paragraph 3 of Amendment No. 15, and Amendment No. 37 as well as Amendment No. 48.

Amendment No. 48 is the last expression of the people on the point here involved, and in addition to the annual salary to be paid in equal monthly installments “the members of the General Assembly shall receive Twenty ($20.00) Dollars per day for each day the General Assembly is in regular session.” This amendment also provides for the payment of Six ($6.00) Dollars per day, in addition to the annual salary, for each day the members of the General Assembly are required to attend special sessions. Amendment No. 48 makes no distinction in the amount of per diem pay for the first sixty days of a regular session and any additional days of a regular session.

Consequently, under Amendment No. 48, the members of the General Assembly are entitled to the same per diem pay of $20.00 per day for a regular session regardless, of whether it is of sixty days, or more than sixty days duration.

The appellants have pointed out in their brief an interesting bit of legislative history concerning the extended session in 1911 as bringing about the adoption of Amendment No. 5 limiting the pay for the members of the General Assembly to sixty days. We can only surmise that whatever confidence of the people the General Assembly may have lost in 1911, was fully restored by 1958 when Amendment No. 48 was adopted.

That portion of the Chancellor’s decree limiting the right of pay to specific legislative days when the members are in actual attendance, and denying the right of pay during “any extension under the guise of a recess during which time the members do not assemble and attend during the extended part of the regular session,” was not presented by the pleadings in this case and is not the question before this court on appeal.

The decree of the Chancery Court is modified to that extent, and as modified, is hereby affirmed.

Affirmed.


author: Coxley Bykd, Justice.

text:
    Frank Young v. Willie Opal Smithson, executrix
    5-4123
    412 S. W. 2d 278
    Opinion delivered March 13, 1967

      Ralph E. Wilson, for appellant.

      William V. Alexander of Swift & Alexander, for appellee.
   Coxley Bykd, Justice.

Appellant Frank Young- prosecutes this appeal from a wrongful death judgment in the amount of $5,507 in favor of appellee, Willie Opal Smithson, surviving widow and executrix of the estate of John Willis Smithson. For reversal, appellant contends that the lower court, at the close of plaintiff’s testimony, should have directed a verdict in appellant’s fav- or because plaintiff failed to prove either that appellant was negligent or that appellant’s action was the proximate cause of the death of John Willis Smithson.

The facts show that on October 30, 1965, appellant had been raccoon hunting in the company of James Elrod, Elrod’s small son and Tony Ashley Jr., on Towhead Island 35 in the state of Tennessee. Some time before midnight, James Elrod had driven his small son home and was returning to coon hunt with appellant and Tony Ashley Jr., when he came upon two sets of headlights in the road in front of appellant’s brother’s house. Appellant’s pickup truck was parked behind deceased’s Nash automobile and at the time deceased was lying along the left side of his automobile with his feet toward the front and his head toward the rear. The left front door of the automobile was over deceased’s legs. Appellant told Elrod that they had had an accident and the gun had gone off. He did not say how it had been fired. He said the man had jumped out on him and had scuffled and the gun had gone off.

The testimony showed that deceased had been shot in the back with appellant’s double-barreled, 12-gauge shotgun immediately below the right shoulder blade near the right side of the body. Leroy Meadows, a deputy sheriff of Mississippi County, testified that the deceased’s clothing did not appear to be disarrayed and that the footprints observed around the body and the car were just normal footprints and did not indicate a struggle. After qualifying as an expert on shotguns, witness Meadows testified that appellant’s shotgun was a double-barreled, 12-gauge; that the safety appeared to he working; and that it required the use of a thumb' and two fingers to discharge both barrels of the shotgun. After inspecting the clothing worn by deceased at the time of the accident, witness Meadows testified that, because of the lack of powder burns on the clothing and because of the size of the wound caused by the pellets, the shotgun could not have been nearer than two feet of more than six feet from deceased at the time it was fired.

Sheriff Newton Wright, of Tipton County, Tennes.-see, testified that appellant had admitted that the 12-gauge shotgun was the gun that had killed John Willis Smithson, and that appellant had told him he had been coon hunting ánd had driven hack to his brother’s house, where a car,was parked on the road; that when appellant had investigated to see what deceased was doing there, deceased had grabbed the gun, they had scuffled and the gun had fired.

Plaintiff showed that Tony Ashley, Jr., had avoided service of the subpoena on him to testify at the trial.

At the close of plaintiff’s testimony, appellant, without having taken the witness stand in his behalf, moved for a directed verdict in Ms favor, which was overruled. Thereupon appellant elected to present no testimony and the matter was submitted to the jury upon instructions which were not here questioned.

We affirm the judgment of the lower court. There, appears to be ample testimony to show the negligence of appellant and that the negligence was the proximate cause of Smithson’s death. In the first place, no explanation is given as to why the safety was not on the shotgun at the time appellant approached deceased’s automobile, nor is any explanation given to show how a person can be shot in the back with a double-barreled, 12-gauge shotgun during a scuffle. In the next place, it is possible the jury could have found that the physical facts surrounding the scene of the accident belied appellant’s explanation of the scuffle.

Affirmed.


author: CarletoN Harris, Chief Justice.

text:
    Eagle Properties, Inc. v. West & Co. of La., Inc.
    5-4146
    412 S. W. 2d 605
    Opinion delivered March 20, 1967

      Leon B. Catlett, for appellant.

      Lesly W. Mattingly and John T. Campbell, for ap-pellee.
   CarletoN Harris, Chief Justice.

Eagle Properties, Inc., appellant herein, instituted suit in the PulasM Chancery Court (First Division) against West and Company of Louisiana, Inc., appellee herein, praying the court to remove an alleged cloud on its title to certain real property located in Pulaski County. The property is. the site of a proposed shopping center being developed by appellant. The alleged cloud is an instrument entitled “Lease Agreement (Short Form),” executed by the parties, and recorded in Pulaski County. The recorded lease was a brief memorandum of a lengthy instrument entitled “Lease Agreement.” These instruments had reference to the proposed lease of a store building to be constructed by Eagle Properties, Inc., for the use and occupancy of West and Company. In its suit, appellant alleged that the lease was void, and had never become effective; that appellee had refused to execute an instrument acknowledging that the lease was void, and thus refused to remove the cloud from appellant’s title. It was asserted that this refusal had damaged appellant in the amount of IOSjOOO.OO. After the filing of several preliminary pleadings, appellee answered, contending that it had complied with the lease agreements, and that the same were still in full force and effect. On trial, the court found that the lease was null and void, and of no effect, and that it should be removed as a cloud upon appellant’s title to the real estate involved. The prayer for damages against appellee was denied. Appellant appeals from that portion of the decree denying damages, and appellee cross-appeals from the finding holding the lease to be null and void. We proceed to a discussion of these contentions.

The evidence reflects that Eagle Properties, Inc., acquired some forty-one parcels of land, over a period of two years, at the southeast corner of Interstate 30 and Geyer Springs Road for the purpose of developing a shopping center, which, to begin with, was to have 100,000 to 120,000 square feet in gross leasable area. In May, 1964, a representative of appellee company contacted William V. Richards., President of appellant company, with regard to obtaining a possible location in the proposed shopping center, and in October, Richards was. contacted by Mr. H. 0. West, Chairman of the Board of the West Company, relative to obtaining space. After quite a bit of correspondence between Richards and West, and a visit to Little Rock by West and associates, Richards made a trip to Minden, Louisiana on December 1, 1964, where he met with H. O. West and his son, Claude West, and a discussion was. held preparatory to reaching an agreement between the parties. Upon his return to Little Rock, Richards, received from West a memorandum of what had transpired at the December 1 meeting. Appellant’s, attorney prepared a lease, incorporating certain provisions agreed upon during negotiations, and also incorporating some provisions of a blank lease submitted by West, which the appellee company had used when placing stores in other shopping centers. This lease was. signed by West on April 7, 1965, and was thereafter executed by the Eagle Company, a short form being recorded in the office of the Pulasld County Recorder. The complete instrument is composed of 37 sections., but only a few of those sections are actually pertinent to this litigation, and argued by the attorneys in their briefs. Among other provisions are the following:

“5. Lessor, before submitting the final plans and specifications to the Department of Housing and Building, or other proper authority, shall submit them to Lessee for its approval and such approval must first be obtained, otherwise this lease shall be null and void.
“6. All s.aid plans and specifications, both preliminary and final, are to be considered as a part of this agreement as if incorporated herein, the said work of actual construction to be commenced on or before April 15, 1965, and the building completed on or before January 1, 1966.”
# * #
“7. * * * If, for any reason beyond its control, Lessor fails to deliver possession of the demised premises, properly completed and made ready for occupancy in conformance with the final approved plans and specifications, to Lessee within the said thirty (30) days., Lessee shall take possession of property within six (6) months after completion, and rental to start, as outlined in Paragraph 3. If building is not completed in two (2) years., this lease is cancelled.”
# # *
“9. Before this lease shall become effective, Lessor shall furnish to Lessee without cost to Lessee: (a) proof satisfactory to Lessee that Lessor’s title is good and merchantable; and (b) an agreement executed by the mortgagee in form satisfactory to Lessee, subordinating each mortgage affecting said premises to this lease.”
“31. It is agreed and understood that the legal effectiveness of this lease is predicated upon Lessor’s consummation of leases with a supermarket, a chain variety store, a drug store and other stores with a total floor space (including the demised premises) of four times, the space signed by Lessee in the shopping center prior to July 1, 1965. In the event the Lessor fails to consummate such leases by said date, it shall give Lessee notice thereof by registered mail and thenceforth this within lease may be cancelled at the option of Lessee. Lessee must give notice of its decision in sixty (60) days from receipt of notice.”

Almost from the beginning, the parties seemed to have difficulty in reaching actual agreement on the building that was to be constructed. For instance, on June 7, 1965, West wrote Richards as follows:

“We received a skeleton copy of the architects drawing of our building in the Windamere Shopping Center and it is no different from a sketch that he sent us previously and we had written him to tell him how we wanted the building fixed, sending him a drawing, but he insists on fixing it like he wants it.
“I don’t believe it is your intention to require us to take a building like the architects )vants us to, but we want it like our plans we sent him sometime ago, and we would appreciate your talking to the architect about this as we do not want the building fixed as he has it outlined.
“If there is any additional information you want on this, please let us hear from you, but we expect the building to be built in accordance with the way we had it drawn on the sketch avc sent him. The difference is, the building Ave sent Avas for a 12,000 foot building and yours is for a 15,000 foot building. The only thing that would be different Avould be the Avidth of the stockroom and the double deck stockroom floor.”

Richardson replied that he Avould make a trip to Minden AAÚthin a few days, to see if the matter could be straightened out. Appellant’s president, hoAveA'er, testified that the parties Avere unable to agree as to the building, the chief difficulty being that West insisted on a balcony, Avhich Richardson said had neA’-er been discussed, and AAÁhich the president emphasized could not have been installed to suit West Avithout destroying the entire concept of the center.

“You Avould either have to raise the roof, or dig down and lower the floor, which that soil out there has a high water table and it is just prohibitive, the cost, and it would ruin the AAdiole concept and design of the center itself.”

On July 28, appellant’s architect received a letter from West complaining that the office Avas on the opposite side of the bpilding from Avhich he (West) wanted it; that it would not be satisfactory to omit the double deck stockroom area; that appellee wanted the show windows just as they had stated in their original plan; that the front doors, were 19% feet apart, while West wanted them to be 10 feet apart; he stated that these changes would have to be made in order to make the building satisfactory. Following receipt of this letter from West, no additional plans were submitted, and, on December 11, 1965, appellant advised appellee that it would be unable to complete the shopping center project; and that all leases in the center were being cancelled. Soon thereafter, an instrument cancelling the lease was' forwarded to West, but the latter did not execute it.

It is. the contention of appellee that the lease is still in effect, while appellant contends that its cancellation was entirely proper and in conformity with Section 5. It is true that no final plans and specifications were submitted to appellee, but appellant maintains that this would have been a useless act, since it was quite obvious, from prior conversations and correspondence, that the parties were “poles apart,” and would never be able to reach an agreement as. to the kind of building to be constructed. Appellant’s witnesses (officers and architect) were adamant in their view that to meet West’s request would simply destroy the type of shopping center they proposed to construct. We have held that the law does not require the performance of a useless act. Doup v. Almand, 212 Ark. 687, 207 S. W. 2d 601. After a study of the record, and the lengthy testimony therein, we are convinced that, under the views maintained by the respective parties, no agreement could have been reached, and the preparation, and transmittal to West of further plans would have been to no avail. We have accordingly concluded that the court was justified in cancelling and setting aside the instrument here involved.

We likewise agi’ee with the -Chancellor that appellant was not entitled to damages. For one thing, damages were not properly proved. Mr. Richards appraised the value of the shopping center at $780,000.00, and his damage, since December 15, 1965 (apparently using this date as the date West refused to cancel the lease on record), as follows:

“Conservatively estimated at six per cent interest, which is very conservative in today’s money market, on such a value as I mentioned, $780,000.00, $23,000.00 in interest alone that we have had .to pay since it has. been tied up, and one-half year’s taxes. I had them computed on all the pieces of property.
* # *
Q. Then you are testifying- with reference to the damage resulting by virtue of the fact that you can’t use or sell the property?
A. Yes, sir. Also the taxes which I prorated for six months, $3,500.00. Now this, doesn’t take into consideration any time or loss of revenue because the Center hasn’t been under way.
Q. The total of those two figures is how much?
A. Well, that would be $26,500.00.”

However, the figure used ($780,000.00) was. not the purchase price of the property, but only Richards’ idea as to the value. “That is the value of this property and it is very near (emphasis supplied) the purchase price of it.” Of course, the 6% interest-figure was likewise simply a figure that Richards considered “conservative.” Subsequently, Richards testified:

“Normally, if you were to appraise the property, of course, you would use two basic approaches. Your income approach, which would be based upon a rental value of the property, which I would say would be six percent net on the total investment. The total investment being $750,009.00, six percent net on that. The taxes and rest of it would be paid above that. The only other way that yon could appraise it would be on comparable basis of market values of centers such as this and they have been g'oing anywhere from $20,000.00 to $40,000.00 an acre. ’ ’

It will b> noted that there is nothing definite about the figures, given, nor does this testimony conform with his earlier evidence. The witness testified that two Little Rock businessmen had expressed an interest in purchasing a 75% interest in the. land, but would take no definite steps as long as. the lease was on record, and that these two businessmen had an option to purchase this interest. Of course, the mere fact that a person1 or concern has an option to purchase property does not mean that the option will be exercised. In fact, frequently options are not exercised. Not only that, but Richards.’ testimony "on this, point was indefinite in other respects, and it appears that there were other conditions to be met before the Little Rock businessmen would consider consummating the transaction. In other words, the testimony as to the contemplated sale was vague, and the outcome doubtful; Damages cannot be allowed “where they are speculative, resting only upon conjectural evidence or the individual opinions, of the parties or witnesses'.” Harmon v. Frye, 103 Ark. 584, 148 S. W. 269. It might also be mentioned that, while we agree, as heretofore stated, that the sending of final plans by appellant would have constituted a useless act,' still, the lease provided that this be done, and West testified that he had consulted his attorneys, and had been advised that his. lease was still in effect. Under these circumstances, it can hardly be said that appellee’s refusal was malicious, arbitrary, unreasonable, or even unjustified.

Finding no errox on either direct or cross-appeal, the decree of the Pulaski Chancery- Court (First Division) is affirmed.

       In its proof, appellant contended for damages in the sum of $26,600.00.

      Appellant did not comply with Sections 9 and 31, and this fact is mentioned by appellant itself, but, in its brief, appellee states that it “could not complain of Appellant’s failure to meet the conditions set forth in Article 9 or 31 until the lease became effective. Thus, any claim with respect to either Article 9 or 31 is at this time premature.” This statement by appellee is somewhat in conflict with its contention that it has an effective lease.

       These businessmen did not testify.