author: Ed. F. McFaddin, Associate Justice.

text:
    Anderson v. State.
    4830
    290 S. W. 2d 846
    Opinion delivered June 4, 1956.

      W. II. Drew,. for appellant.

      Tom Gentry, Attorney General, Thorp Thomas, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

Information was duly filed against the defendant (appellant), Lon Anderson, charging that: “The said defendant on the 16th day of August, 1955, in Drew County, Arkansas, did unlawfully obtain the sum of $60.00 from Elliott Morgan and Alf Sanders by false impersonation, false pretense and false token, against the peace and dignity of the State of Arkansas.” (See § 41-1901 Ark. Stats.). In response to defendant’s motion, a Bill of Particulars was filed, which stated:

‘ ‘ That the defendant, Lon Anderson, did unlawfully obtain money from A. W. Sanders by: (a) False Impersonation — that he introduced and represented himself to be a Mr. Crosby, a representative of the International Paper Company, of Bastrop, Louisiana;
“(b) False Token — that he represented to the said A. W. Sanders that a certain pick-up truck in Monticello was for sale and showed the truck to the said A. W. Sanders, when in fact said truck was not for sale and Lon Anderson did not know the owner of said truck; and
“(c) False Pretenses — he obtained money in the amount of $60.00 from A. W. Sanders in Monticello, Arkansas, by falsely pretending to be in a position to arrange a bargain sale for a pick-up truck that did not exist, by falsely pretending to have the title transferred, by falsely pretending to make phone calls, and falsely showing said Sanders a pick-up truck that was not for sale.”

On the said information and Bill of Particulars the defendant was tried and convicted; and on this appeal urges, inter alia, the points now to he discussed.

I. Representation As Distinguished From Promise. At the conclusion of all the evidence, the defendant moved the Court:

“Defendant demurs to the evidence presented by the State in that the testimony of the State’s witnesses conclusively prove that the alleged transaction was a promise to take place in the future and as such cannot be false pretenses, and I therefore move for a directed verdict.”

The Court overruled the motion; and there was no error in such ruling. The evidence established that the defendant approached A- W. Sanders and introduced himself as being a Mr. Crosby, and holding a responsible position with the International Paper Company, and being interested in making contracts with parties to cut and haul pulpwood timber for that Company. In discussing the proposed pulpwood contract with Sanders and several others, the defendant told Sanders that he could purchase a 1955 Chevrolet pick-up truck for $1,000.00, provided Sanders would pay $60.00 cash as interest. The story that the defendant told Sanders was: that a boy at Monticello owned the 1955 pick-up truck; that the boy had been recalled to the army; that the boy would sell the defendant the truck for $1,000.00 but would not sell it to anyone else at that figure; that the deal would have to be kept very quiet in order that some of the boy’s relatives might not interfere; and that he would then have many months to pay the consideration of $1,000.00.

The defendant persuaded Sanders to go to Monticello and there showed Sanders a parked truck as being the one that Sanders was to receive. Sanders gave the defendant the $60.00 and defendant went into a store and returned and explained that a lady in Star City had to sign the title papers. Sanders stayed in Monticello and a friend of Sanders drove the defendant to Star City, where the defendant disappeared. After waiting several hours and learning that the truck had been driven away, Sanders became suspicious and reported the entire transaction to the law enforcement officers, who located and arrested the defendant.

We have many cases which discuss the distinction between representation and promise in prosecutions for false pretense. Some such cases are: State v. Vandimark, 35 Ark. 396; Parker v. State, 98 Ark. 575, 137 S. W. 253; Higgins v. State, 141 Ark. 633, 217 S. W. 809; Fisher v. State, 161 Ark. 586, 256 S. W. 858; and Lamb v. State, 202 Ark. 931, 155 S. W. 2d 49. That some of the defendant’s statements to Sanders were promises, as distinguished from representations, does not conceal the fact that material portions of the defendant’s scheme were positive representations; he said his name was Crosby; that his work was to employ persons to cut and haul pulpwood; and he pointed out a particular truck as being the one that Sanders was to get for the $60.00 paid, plus the future payments to be made. All of these were representations of past or existing matters. That the transaction was to be shortly consummated did not make prospective some of the vital representations which caused Sanders to part with his $60.00. The Court was correct in refusing defendant’s motion for an instructed verdict.

II. Proof of Falsity Of The Representation. One of the essential ingredients of the offense of false pretense is that the representation made must be false, and the burden is on the prosecution to prove such falsity. State v. Asher, 50 Ark. 427, 8 S. W. 177; Fox v. State, 102 Ark. 451, 145 S. W. 228. That the defendant made all the representations hereinbefore mentioned is not denied, since he offered no evidence. But the burden was on the State to prove that material representations were false; and on this point the evidence is too scant to sustain the conviction. For instance, there is no sufficient evidence that the truck pointed out to Sanders was not owned by a boy who was going to the army and who was willing to sell it for $1,000.00. Again, the defendant went into a store for the announced purpose of consulting the owner of the truck and came back and reported a ■ conversation; yet there is no ■ evidence that the reported conversation did not take place. ' In one instruction (which was refused) the defendant asked the Court to tell the Jury:

“In the case before you there is evidence of false impersonation of a representative of International Paper Company by Lon Anderson, but the proof fails in any manner whatsoever to show that anything was received from anyone under such false impersonation. ’ ’

This instruction, requested by the defendant, is almost an admission that he had falsely impersonated another ; yet we cannot take this refused request as an admission of the falsity of material representations. In the absence of sufficient evidence of the falsity of the representations, we have concluded that justice will best be accomplished by reversing the judgment of conviction and remanding the case for a new trial, so that sufficient evidence may be offered as to the falsity of the defendant’s material representations. There is ample precedent for remanding the case for a new trial in such a situation as this. See Reed v. State, 97 Ark. 156, 133 S. W. 604; Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936; Taylor v. State, 211 Ark. 1014, 204 S. W. 2d 379; Grigson & Gibson v. State, 221 Ark. 14, 251 S. W. 2d 1021. In Johnson v. State, supra, Mr. Justice Bobins used this language:

“We conclude that the testimony adduced was not sufficient to establish the guilt of appellant with the certainty that the law requires in cases of this kind. We cannot say that the circumstances shown could not be reasonably explained except upon the hypothesis of appellant’s guilt. This language by Mr. Justice Frauen-thal, in the case of Reed v. State, 97 Ark. 156, 133 S. W. 604, where a conviction had been had upon circumstantial evidence, is appropriate here: £It may be that these defendants are guilty of this crime, but, after a careful examination ■ of all the evidence adduced upon the trial and after drawing from it every inference that is rightfully deducible therefrom, we do not think that it was sufficient to warrant the deféndants’ conviction of this crime. France v. State, 68 Ark. 529, 60 S. W. 236. It may be that on a future trial additional evidence may be introduced showing their guilt. The evidence that was introduced upon the trial below we think too slight to justify a conviction.’,, The judgment of the lower court is, therefore, reversed and the cause remanded for a new trial.”

III. Other Assignments. There are other assignments which we find unnecessary to consider.

Reversed and remanded for new trial.

Justice RobiNsoN dissents.


source: Caselaw Access Project

author: MiNOR. W. Mill web, Associate Justice.

license: Public Domain

text:
    Scarber v. State.
    4834
    291 S. W. 2d 241
    Opinion delivered June 4, 1956.
    [Rehearing denied July 2, 1956.]

      Harry C. Robinson and Gordon H. Sullivan, for appellant.

      Tom Gentry, Attorney General and Thorp Thomas, Asst. Atty. General, for appellee.
   MiNOR. W. Mill web, Associate Justice.

TMs appeal is from a judgment entered upon a verdict imposing the death penalty against appellant, following his plea of guilty to the crime of rape.

The offense occurred in the early morning hours of August 29, 1955. The prosecutrix, a 76-year-old woman, lived alone in the Willisville community in Nevada County. Appellant entered the home by removing a screen from the back door. After grabbing the prosecutrix by the throat, heating her about the face and threatening to kill her, appellant proceeded to satiate his lust by ravishing her. ’ A deputy sheriff tracked appellant to a barn where he was taken into custody.

Appellant was charged with rape and committed to the State Hospital for examination as to his sanity, and on October 3, 1955, hospital authorities reported that he was without psychosis. After a thorough investigation of the case by able local counsel appointed to defend the appellant, a plea of guilty to the charge was entered on October 17, 1955. A hearing before a jury impaneled to fix the punishment on October 24, 1955 resulted in a verdict of guilty and assessment of the death penalty.

The first three assignments in the motion for new trial filed by counsel employed since the hearing challenge the sufficiency of the evidence to support the verdict. Aside from the plea of guilty, which is equivalent to a conviction (State v. Wright, 96 Ark. 203, 131 S. W. 688), there is ample independent, uncontradicted evidence to sustain the verdict.

Appellant next contends the court erred in failing to instruct the jury as to its power to fix the punishment at life imprisonment or death. There was no objection to the instructions given prior to submission of the case to the jury. In these instructions the court made it clear that it was within the jury’s province to impose either life imprisonment or the death penalty. In this connection it is also argued that the court erred in telling the jury that they could fix the penalty at death only in the event they found “beyond a reasonable doubt” that appellant should receive such punishment. Not only did appellant fail to object to the instruction given but his request that it be amended to fully define “reasonable doubt” was granted. A judgment will not be reversed, even in a capital case, for the giving of an erroneous instruction which was not objected to in the trial court. Johnson v. State, 127 Ark. 516, 192 S. W. 895. Even if there had been a proper objection, appellant could not complain of an error that placed a greater burden on the state than it was required to assume under the law.

After a period of deliberation, the jury returned into open court and one of the jurors inquired whether there was any way that body could be assured that a life sentence would be served if assessed, or whether appellant might “stay up there a while and get out.” In reply, the court stated that matters of clemency were strictly' within the power • of the executive department and that snch matters should not enter into the jury’s final decision-which should be based’solely on the evidence and the law given them by the court. Appellant objected on the ground that “the court-should have instructed the jury to determine the penalty involved and not to consider any clemency matter which was outside of their scope and should have given this as a direct order rather than in the ambiguous method used.” We, find no ambiguity in the court’s reply which clearly and correctly answered the. juror’s query. See Glover v. State, 211 Ark. 1002, 204 S. W. 2d 373.

Appellant also contends that the jury should have’ been allowed to consider the charge of assault with intent to rape.. No request was made for an instruction on this issue and there is no assignment in the motion for new trial based thereon. Even in cases which do not involve a plea of guilty, we have held that such an instruction is unnecessary when the facts establishing the principal offense cannot be interpreted as proving the lesser offense instead. Whittaker v. State, 171 Ark. 762, 286 S. W. 937; Needham v. State, 215 Ark. 935, 224 S. W. 2d 785. That is the situation here and this contention is without merit.

Appellant also assigns error in the court’s action in impaneling a jury to fix the punishment. While Ark. Stats. Sec. 43-2153 did not repeal the old statute (Ark. Stats. Sec. 41-3403) fixing the penalty for rape at death, it empowered the jury to reduce the punishment to life imprisonment. Allison v. State, 204 Ark. 609, 164 S. W. 2d 442. A jury may not be waived in a case where the death penalty may be imposed and it was mandatory that the court impanel a jury to fix the punishment under Ark. Stats. § 43-2108. Carson v. State, 198 Ark. 112, 128 S. W. 2d 373.

Appellant finally contends for reversal on the ground that the record does not affirmatively show that the jury and officers in charge of the jury were sworn in- accordance with Ark. Stats. Secs.' 43-2121 & 43-2122'. The record does affirmatively show that the jury “were duly.qualified,.accepted and sworn” to try the case. Under this state of the record an objection that the jury was not properly sworn cannot be sustained. Pruitt v. State, (Ark.), 11 S. W. 822. Prior to submission of the case to the jury it was within the court’s discretion under Sec. 43-2121 either to permit the jury to separate after proper admonition or to be kept together in charge of an officer who was properly sworn. In the case at bar, the record affirmatively shows that the “statutory admonition” was given to the jury upon being permitted to separate for a five-minute recess prior to submission of the case to them. There is nothing to indicate any abuse of the court’s discretion in permitting the jury to so separate instead of requiring that they be kept together in charge of an officer. Appellant made no objection to the separation of the jury or the admonition given and there is no assignment in the motion for new trial relating thereto.

In the recent case of Baxter v. State, 225 Ark. 239, 281 S. W. 2d 931, relied on by appellant, there was a reversal because the record did not show that the officer conducting the jury to the scene of the crime had been sworn in compliance with Ark. Stats. Sec. 43-2120. That holding is inapplicable here. As the majority pointed out in that case, it was within the court’s discretion under Sec. 43-2121, supra, to permit the jurors to separate under proper admonition by the court or to require them to be kept together in the charge of officers properly sworn. In cases where the court’s action in exercising its discretion under the statute is properly brought forward in the motion for a new trial, such assignment cannot be considered on appeal in the absence of an objection in the trial court. Lesieurs v. State, 170 Ark. 560, 280 S. W. 9. Further, there is no contention that the jurors were subjected to improper influences during the five-minute recess and no abuse of the court’s discretion has been shown. Under these circumstances, no error was committed in permitting them to separate after being given the statutory admonition. Borland v. State, 158 Ark. 37, 249 S. W. 591.

We find no prejudicial error, and the judgment is affirmed.

RobiNsoN, J., not participating.


author: George Rose Smith, J.

text:
    Hutchison v. Sheppard.
    5-954
    290 S. W. 2d 843
    Opinion delivered June 4, 1956.

      Pickens & Pickens, for appellant.

      Kaneaster Hodges, for appellee.
   George Rose Smith, J.

For tlie second time an appeal and cross appeal bring this case np for review. Tbe suit was brongbt by tbe appellees, Kate Anthony Sbeppard and others, to recover possession of 120 acres. Tbe defense of tbe appellants, Porter Hutchison and bis wife, was a claim of title in themselves. Our first opinion held that the Hutchisons bad only an estate pur autre vie, which was terminated by the death of Edgar Anthony in 1953, and that Mrs. Sheppard then became entitled to possession for the rest of her life. The cause was remanded for further proceedings with reference to the appellants ’ right to reimbursement for improvements made before the expiration of their estate in the land. Hutchison v. Sheppard, 225 Ark. 14, 279 S. W. 2d 33.

Upon remand the chancellor, among other things, (a) gave the appellants judgment for $500 for improvements, this award being apportioned against Mrs. Sheppard and the reversioners, and (b) allowed the appellants $1,088 for their expense in planting and cultivating the unmatured crops that were on the land when the final decree was rendered in July of 1955. By appeal the Hutchinsons contend that both sums are inadequate; by cross appeal the appellees contend that the appellants are not entitled to anything upon either claim.

We consider first the allowance of $500 for improvements. The appellees contend that the Hutchisons did not have a good faith belief in their claim of ownership and therefore cannot rely upon the betterment act. Ark. Stats. 1947, § 34-1423. The chancellor’s decision upon this question of fact does not appear to be against the weight of the evidence. Porter Hutchison bought the land from his father in 1941, received a warranty deed purporting to convey the fee simple, improved the property rather extensively, and testified that he “never was scared of the title.” The appellees attempt to show that Porter did not pay full value for the land, but this argument is weakened by the fact that a father was selling to his son, .The appellees also stress Porter Hutchi-son’s admission that he “looked at” an abstract of title in 1947. This, however, was six years after his purchase, and .even if Hutchison saw the abstractor’s description of the deed to Edgar Anthony for life., with remainder to his bodily heirs, it is doubtful if a layman would understand the legal effect of that conveyance.. "We are not convinced that the Hutchisons knew, their estate to be- a limited one.

The appellants’ contention that the award of $500 is inadequate also involves the review of an issue of fact. There is much testimony concerning the cost and present value of the improvements, but the question is the amount by which they enhance the value of the land. McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88. The chancellor concluded that the buildings' were originally worth $2,500, but he deducted $1,500 for depreciation and $500 more for the appellants’ failure to keep the improvements in good repair. This reasoning is in harmony with-the principles discussed in the McDonald case, and the finding of fact is well supported by photographs in the record. We cannot say that some higher allowance for the improvements would be better sustained by the evidence than is the figure fixed by the trial court.

The other issue relates to the item of $1,088 that was allowed for the planting and cultivation of the 1955 crop. ■ This crop was growing on the land when Mrs. Sheppard finally obtained possession in June or July and was presumably harvested by her in the fall. In contending that the Hutchisons are entitled to nothing for having planted and cultivated the land Mrs. Sheppard argues that this is in substance an action in ejectment and that in such an action the ousted defendant is treated as a trespasser.

We do not find this argument persuasive. The original decree awarding possession to Mrs. Sheppard was entered in August of 1954. The Hutchisons elected to supersede that decree pending the first appeal, as they had a legal right to do.' Their continued possession had the sanction of the law and cannot be regarded as a trespass. When Mrs. Sheppard’s right to possession-was confirmed by the decision of this court she could .have demanded either the rental valúe of the land or the land itself with the growing crop. Obviously she' could not have both, -since the landowner cannot expect to receive both' the crop and a cash rent from the occupant who labored to' produce it. See Gardner v. Kersey, 39 Ga. 664, 99 Am. Dec. 484. Mrs. Sheppard elected to take the crop, and it is plainly fair to require her to reimburse the Hutchi-sons for outlays that she would have been required to make if the decree had not been superseded and she had cultivated the land herself. The point was so decided in Gillies v. Radke, 78 N. D. 974, 54 N. W. 2d 155; see also Rest., Restitution, § 158.

The appellants are correct in their contention that the award of $1,088 is not quite sufficient. The undisputed proof shows that the appellants had spent $1,207.50 in planting and cultivating the land when possession was surrendered to Mrs. Sheppard in the summer of 1955. The chancellor disallowed three items of expense, totaling $119.50, that were incurred in the interval between the filing of the mandate from this court and the actual relinquishment of possession. These outlays, however, were just as beneficial to Mrs. Sheppard as the expenditures made before the mandate was filed, and there seems to be no sound reason for their disal-lowance. This award is therefore increased to the full amount of $1,207.50.

Affirmed as modified.


author: Paul Ward, Associate Justice.

text:
    Walker v. State.
    4838
    290 S. W. 2d 850
    Opinion delivered June 4, 1956.

      No brief for appellant.

      Tom Gentry, Attorney General, Paul C. Rawlings, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, Tommy Loyd Walker, was charged by information with the crimes of burglary and grand larceny. Upon trial the jury returned a verdict of guilty of burglary and petit larceny, fixing his punishment at 3 years imprisonment in the penitentiary for burglary, and one dáy in jail and a $10.00 fine for petit larceny.

Upon appeal appellant has furnished no brief, but .from the abstract furnished by the State we find in the Motion for a New Trial several assignments of error. These assignments will be considered under 6 separate heads.

1. Appellant’s contention that the evidence is not sufficient to support the verdicts of the jury is without merit. Some time in May 1955 Kenneth Manker reported to the Sheriff of Cleburne County that his house had been burglarized. It was conclusively shown that a number of items, including, quilts, bedspreads, radio, money, silverware and- cooking utensils were missing from his home. Many of these items were located at the home of Elmer Lawson who was an uncle of appellant, where Manker identified and recovered several of, the items. Appellant admitted to the Sheriff, the Deputy Sheriff, and the Marshal of Heber Springs that he entered the Manker house through a window and removed the merchandise to the home of his uncle, Elmer Lawson. The officers located the radio on a creek bank where Walker said he had burned it for fear of being caught. Among the items missing from the Manker home were several silver dollars and 15 or 16 dollars in pennies. A merchant in Heber Springs stated that about the time of the burglary appellant brought to his store several silver dollars and a large number of pennies. The incident was so unique that the merchant, at the time, stated to appellant that he must have robbed some child’s bank. The above, together with other testimony which it is unnecessary to set out, fully supported the jury’s verdicts.

2. Appellant contends that, on the voir dire examination of the prospective jurors, the court erred in refusing to allow him to ask the jurors if they would vote for an acquittal if the State failed ip proving beyond a reasonable doubt every material allegation set out in the information. No reversible error is shown for the reason that the record fails to disclose any objection at the time. Also when the court’s attention was later called to this incident the jury was told, without objection, that the burden was on the State to prove every essential of the crime charged in the information.

3. It is insisted that the court erred in permitting the prosecuting attorney, in his opening statement to the jury, to say that the defendant took money, since the information does not state that money was taken. We see no error in this because, during the trial, two witnesses testified without objection concerning the money, and this testimony was also competent under the circumstances. The money was only one of the several items which appellant is shown to have taken from Man-ker’s home. See Childs v. State, 98 Ark. 430, 136 S. W. 285; Stapleton v. State, 97 S. W. 296 (noted but not reported in 80 Ark. 617) and Banks v. State, 187 Ark. 962, 63 S. W. 2d 518.

4. Tom Hensley, deputy marshal, who found the missing items in the home of Elmer Lawson testified that no one present, including appellant, denied that the property belonged to Manker. Appellant objected to this testimony with reference to appellant. This did not constitute error because it was shown that appellant was present part of the time. Also, other testimony conclusively showed that the items belonged to Manker.

5. Appellant also objects to the court allowing the merchant to testify that appellant brought the silver dollars and pennies to his store. This testimony was competent as it tended to show appellant’s connection with the crime. Ward v. Young, 42 Ark. 542.

6. Finally, appellant objects to the court’s action in refusing to give three instructions requested by him. We have examined the record and these instructions were covered by other instructions given by the court. Moreover no objection was made to the court’s refusal to give the requested instructions, and therefore there is nothing presented for our consideration. See Wimberly v. State, 214 Ark. 930, 218 S. W. 2d 730.

Affirmed.


author: Sam BobiNsoN, Associate Justice. Paul Ward, Associate Justice,

text:
    Morrison v. Bland.
    5-967
    291 S. W. 2d 243
    Opinion delivered June 4, 1956.
    [Rehearing denied July 2, 1956.]

      Penix & Penix, for appellant.

      Kirsch, Cathey & Brown, for appellee.
   Sam BobiNsoN, Associate Justice.

The issue here is whether the appellees, Robert P. Bland and his wife, Anna Lou Bland, are liable to appellant, Byrd Morrison, doing business as Byrd Morrison Lumber Company, for lumber supplied by Morrison on a contract between the Blands and R. C. Whitlow. In May 1955, the Blands were preparing to build a house in Paragould. A short time previously, Frank Schreit, Jr. had purchased some lumber from R. C. Whitlow, and recommended Whitlow to Robert P. Bland; in fact, Schreit introduced Bland to Whitlow. Whitlow tried to sell lumber to Bland at that time, but Bland was not ready to purchase, as his plans were not complete. Whitlow gave Bland his card, which reads: “Whitlow Lumber Company, Ronald C. Whit-low, Owner, P. 0. Box 38, Alicia, Arkansas.”

Some time later, Whitlow again called on Bland and represented to him that there was going to be an advance in the price of lumber, but if Bland would place his order at that time and pay part of the purchase price, he could get it at the price then prevailing.They made a deal on those terms, and on May 31, 1955, Bland made a check payable to R. C. Whitlow in the sum of $2,000.00. Whitlow gave Bland a receipt which stated that the order was to be given at, the buyer’s option. Whitlow’s name was given as salesman and Robert P. Bland as purchaser, and nothing on the receipt indicated that any other person or company was involved. Whitlow told Bland that he wonld make arrangements with the In-man Lumber Company to deliver the lumber. Whitlow did not own a lumber yard or have a stock of lumber; in order to carry out his contract with Bland, it was necessary for him to get some one else to supply the lumber. He contacted appellant Morrison, who agreed to furnish the material and pay Whitlow a percentage of the selling price. But, it was necessary for Morrison to obtain the lumber elsewhere as he had no lumber yard or stock of lumber.

Whitlow obtained specifications of the desired lumber from Bland, gave an order for it to Morrison, and stated in the order that Inman was to do the hauling. Morrison obtained the first load of lumber from the Sparkman Lumber Company, Sparkman, Arkansas; In-man picked it up at that place and delivered it to Bland, at Paragould, on July 8. At that time, it appeared that some of the lumber was not according to specifications; there were no 8 foot 2 x 4’s, and, also, some of the lumber was No. 1 whereas No. 2 had been ordered. Bland attempted to get in touch with Whitlow, but was unsuccessful, and Inman suggested that he talk with Morrison, as the lumber was coming through Morrison. Bland did contact Morrison, and was told that he could cut the 16 foot 2 x 4’s in half in order to make the desired 8 foot lumber, and that additional 16 foot pieces would be furnished later. Morrison also stated that the No. 1 lumber was charged out as No. 2, as they did not have the No. 2, but made no statement with reference to his arrangements with Whitlow about furnishing the lumber.

About five days later, on July 13, Bland received an invoice from Morrison stating that there was a 2% discount for payment in 10 days; also stamped on the face of the invoice was an assignment whereby the proceeds of the invoice were assigned to the Merchants and Planters Bank, in Camden, with the request that the remittance be made to the bank. On July 18, the second load of lumber was shipped, and a few days later the invoice for that load was sent by Morrison to Bland, with the same notation as to the assignment. The two invoices came to $2,191.96; Bland sent Whitlow his check for the amount of the difference between the $2,191.96, less 2%, and the $2,000.00 previously paid Whitlow. Whitlow contacted Bland and told him that he (Bland) was not entitled to the 2% discount because theirs was a net transaction, and Bland gave Whitlow another check for the additional amount. The last .of August, Morrison called on Bland for payment, and Bland stated he had already paid Whitlow. Morrison then filed a lien on the property where the lumber was used. On August 30, this suit was filed, asking judgment against Bland in the sum of $2,191.96 and foreclosure of the lien. There was a judgment for Bland; Morrison has appealed.

According to the undisputed testimony in the case, Whitlow was not Morrison’s agent. In dealing with Bland, there was nothing done or said by Whitlow to lead Bland to believe that any one was involved in the transaction except the two people, Bland and Whitlow. In fact, according to the undisputed evidence, no one else was involved at the time of making the contract for the sale of the lumber. There is no contention that, at the time the contract was made, Bland knew anything about Morrison; Whitlow says he was acting for himself, and Morrison says that Whitlow had no authority to act for him. Therefore, according to the undisputed testimony, Whitlow was acting for himself, solely, at the time he made the contract to sell lumber to Bland. Later, Whit-low, without the knowledge or consent of Bland, entered into a contract with Morrison whereby Morrison would supply lumber to Bland. One load of lumber was hauled by Inman from the Fordyce Lumber Company, Fordyce,. Arkansas; that company’s tally sheet went with the lumber. It shows the name, Morrison, written in pencil in the upper left hand corner. The other load of lumber was hauled by Inman from the Sparkman Lumber Company, at Sparkman, Arkansas; the tally sheet sent with that load of lumber shows that the lumber was sold to Morrison, and shipped to Inman Lumber Company, Walnut Ridge, Arkansas. None of these tally sheets or in•voices shows in any manner what arrangements Whit-low had made for obtaining the lumber.

Bland made a contract with Whitlow for the purchase of the lumber, and paid for it. Whitlow made a deal with Morrison to furnish the lumber; Morrison, in turn, contracted with the Sparkman Lumber Company and the Fordyce Lumber Company to supply the lumber, and Inman was employed by Whitlow to deliver the lumber. Had Bland suspected there was anything wrong about the transaction, he would have had more reason to believe that Inman was the actual owner of the lumber than that Morrison owned it. When he saw the lumber, it was in Inman’s truck, in the process of being delivered. There were two loads, and there was a tally sheet with each load; one tally sheet showed that the lumber was shipped to Inman by the Sparkman Lumber Company, at Sparkman, and the other showed that the lumber came from the Fordyce Lumber Company, at Fordyce. Morrison is located at Camden; he had no contract with' Bland; he never heard of Bland before he (Morrison) made a deal with Whitlow to furnish lumber to Bland. Morrison had dealt with Whitlow previously and knew that he was an unreliable person. According to Morrison, Whitlow had given bad checks for lumber on other occasions, and collected from other customers contrary to Morrison’s orders; he collected from Schreit in exactly the same manner he collected from Bland. In all probability, Morrison actually got a large portion of the money paid by Bland, but, according to Whitlow’s orders, it was credited to Schreit instead of to Bland.

At the time of the receipt of the invoices by Bland, he had already paid Whitlow practically all of the purchase price, only a small part being paid thereafter. Although after delivery of part of the lumber, Morrison talked with Bland about specifications, he did not tell Bland that he was looking to him for the money. Bland knew that Schreit had dealt with Whitlow in exactly the same manner as he (Bland) contracted with him, and there was no complaint by any one. It did not appear strange that Morrison came into the deal; so did .the In-man Lumber Company, Sparkman Lumber Company, and; Fordyce Lumber Company. Morrison did not discuss the method of payment with Bland; neither did he ask Bland for any reference as to his credit nor did he make any investigation of Bland as a credit risk. Bland knew tha! he had paid for the lumber, and there was nothing to indicate to him that there was not a mutual agreement between Whitlow, Morrison, Sparkman Lumber;Company, Fordyce Lumber Company and Inman Lumber Com-' pany as to the delivery of the lumber. The invoices did not constitute a contract. In Garner Manufacturing Company v. Cornelius Lumber Company, 165 Ark. 119, 262 S. W. 1011, the court said, in quoting from the Supreme Court of the United States: “ ‘An invoice is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, quantity and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale; hence, standing alone, it is never regarded as an evidence of title.’ Dows v. National Exchange Bank; 91 U. S. 618-630, 23 L. Ed, 214; Sturm v. Boker, 150 U. S. 312-328. To be sure, the im voice was relevant testimony to be considered in determining what the contract was between the parties, but it of itself did not constitute a contract.” ■ ■

If Morrison was an undisclosed principal and Whit-low was the agent, Morrison cannot recover because' Bland could assert every defense against the unknown1 principal that he could against the agent. Frasier v. Poindexter, 78 Ark. 241, 95 S. W. 464. Morrison says, however, that Whitlow was not his agent, but was his broker. A broker is an agent. Ballentine’s Law Dictionary, Second Edition Page 174; 5 Words and Phrases 828. Whitlow could not act as an agent for Morrison without Morrison’s consent; Restatement-Agency, § 15; and, according to Morrison, Whitlow had no authority to .act for him or use his name in any manner whatsoever. Morrison was not bound by anything that Whitlow did. Although the purchase price was páid, Bland would have no cause of action against Morrison if the lumber had not been supplied. Neither is Bland liable to Morrison on any contract, and he is not liable on a quantum meruit basis because the lumber was supplied on a contract with Whitlow, and Morrison is not a party to that contract. Stevens v. Owen, 220 Ark. 196, 246 S. W. 2d 728.

It is agreed that Bland owes the sales tax to some one. From the record it appears that Morrison has paid the tax to the State, hence, according to equitable principles, Bland should reimburse Morrison for the sales tax paid. With this modification, the decree is affirmed.

Mr. Justice Ward dissents.

Paul Ward, Associate Justice,

dissenting. My reasons for disagreeing with the majority opinion are set out below.

1. The undisputed facts are: That Morrison shipped to Bland lumber valued at $2191.96. That Bland accepted and used the lumber; That Morrison has received not one cent for his lumber; That Bland had previously paid Whitlow $2000.00 for some lumber; That Whitlow was not the agent of Morrison, and; That Bland did not deal with Whitlow as an agent of any one.

2. The inevitable result is that Bland or Morrison must lose $2191.96, or some portion thereof.

3. It is a well established principle of law and equity that when one of two innocent parties must suffer because of a mistake, the one more responsible for the mistake, or the one who had the better opportunity to prevent the mistake must be the loser.

In my opinion the undisputed testimony in this case shows that Bland was the one who had the opportunity to prevent the miscarriage of justice, as shown by the following:

(a) When the first load of lumber was shipped to Bland on July 8, the tally sheet which went along with the lumber had nothing on it to show that the lumber was coming from Whitlow, but it did have on it the name of Morrison; (b) When the first load of lumber was received by Bland and part of it was not according to specifications, he was told to and he did talk with Morrison about tbe lumber, and Morrison assured him-jhat the defects would be supplied; (c) On July 13 Bland received an invoice from Morrison (not Whitlow) stating that he (Bland) was entitled to a 2 per cent discount when he paid for the lumber, and the invoice also directed Bland to pay the money to the Merchants and Planters Bank in Camden. Bland must have known that these directions were incompatible with the fact that he had already paid for the lumber; (d) A few days later Bland received the second load of lumber from the Sparkman Lumber Company with a tally sheet showing that the lumber had been sold to Morrison (not Whitlow).

In my judgment any one of the above enumerated incidents was sufficient and certainly all of them were more than sufficient, to have called to Bland’s attention that something was wrong, and placed upon him the burden and obligation of making inquiry. This he did not do. The above is most significant in view of the fact that there is no contention that Morrison did anything to mislead Bland. The record discloses no fact or incident which was calculated to arouse suspicion that Bland had already paid Whitlow for the lumber.

Under the above stated factual situation, the decisions of this court make it clear that this case should be reversed and that Morrison should have judgment for his lumber. In the case of Kellogg-Fontaine Lumber Co., Inc. v. Cronic, 219 Ark. 170, 240 S. W. 2d 872, the question presented was whether a notation on a check was sufficient to put the payee on notice of certain existing facts, and this court approved this statement: ‘This court is committed to the doctrine that notice of facts which would put a man of ordinary intelligence on inquiry is equivalent to knowledge of all of the facts that a reasonably diligent inquiry would disclose.’ ” It was also there said that the same principle of law had been announced many times by this court. In the ease of Trinity Royalty, Inc. v. Riggins, 199 Ark. 939, 136 S. W. 2d 473, the question was whether appellant, in buying an undivided interest in oil, gas and other minerals, did so without notice that appellee had previously purchased the same interest. In dealing with this question the court made the same statement as quoted above.

When Morrison notified Bland that he was to pay for the lumber by sending his check to the Merchants and Planters Bank at Camden, Bland of course knew at the time that he had already paid Whitlow for the lumber. Certainly this was sufficient to put Bland on notice that something was wrong. If Bland, at that time, had merely told Morrison that he had already paid for the lumber in advance (to Whitlow) Morrison would have had an opportunity to protect himself and he certainly would not have shipped Bland the second load of lumber knowing that he would not receive any money therefor.


author: Pee Curiam.

text:
    Martin v. Pope.
    5-966
    290 S. W. 2d 849
    Opinion delivered June 4, 1956.

      Paul K. Roberts, for appellant.

      Martin & Haley, for appellee.
   Pee Curiam.

Appellees, Carl Pope and wife and Bradley Lumber Company, instituted this suit to quiet title to two adjacent 20-acre tracts of land. Appellants, Lummie Martin arid Obilee Thomas, intervened in the suit which culminated in-a decree -quieting appellees’ title and dismissing the intervention of appellants on the ground that they, had disposed of and. no longer claimed any interest in the lands in controversy and had. so testified at the trial.

At the outset, we are confronted with appellees ’ mo-' tion to dismiss the appeal supported by the affidavit of both appellants, which states: “That they are one and the same Obilee Thomas and Lnmmie Martin named in [the instant snit]; that they have never employed an attorney to represent them in said case and are not now represented by any attorney; that they sold the land in' question and are not now and never have since said sale claimed any interest in said land; that they have not authorized any person to file an appeal with the Arkansas Supreme Court in connection with said case and that they do not desire said Court to consider any appeal in connection with said case; that they have not been in contact with any attorney in connection with perfecting an appeal and the first knowledge affiants had that an appeal had been taken was accidentally acquired from outside sources.” The motion also sets forth the testimony of appellants at the trial to the effect that they had sold their interest in the lands in question.

“It is settled law that an attorney cannot compel his client to continue litigation, and that the client may dismiss or settle the cause of action without consulting his attorney. Davies v. Patterson, 135 Ark. 22, 205 S. W. 118. Of course, in ordinary litigation such settlement would be subject to the contractual rights of the attorney in the proceeds of the settlement. St. L., I. M. & S. R. Co. v. Blaylock, 117 Ark. 504, 175 S. W. 1170, Ann. Cas. 1917A, 563; St. L., I. M. & S. R. Co. v. Kirtley & Gulley, 120 Ark. 389, 179 S. W. 648; Davis v. Webber, 66 Ark. 190, 49 S. W. 822, 45 L. R. A. 196, 74 Am. St. Rep. 81.” Purvis v. Walls, 184 Ark. 887, 44 S. W. 2d 353. A client’s action in settling or dismissing his claim or cause of action without consulting his. attorney may also entitle the latter to a lien for his fee under Ark. Stats., Sec. 25-301.

Since appellants liad the right to discontinue or settle any cause of action they had against appellees, the motion to dismiss is sustained, hut without prejudice to counsel’s right to pursue any right of action or lien he may have for his services.


author: Lee Seamster, Chief Justice.

text:
    Magnet Cove Barium Corporation v. Evans.
    5-973
    291 S. W. 2d 237
    Opinion delivered June 11, 1956.

      Riddick Riff el, for appellant.

      Lookadoo, Gooch & Lookadoo, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal from a judgment of the Hot Spring Circuit Court affirming an opinion of the Arkansas "Workmen’s Compensation Commission, wherein maximum compensation benefits were awarded the widow and minor child of Sam Evans, deceased, former employee of appellant, Magnet Cove Barium Corporation. The Commission’s award of benefits was predicated upon a finding, “that deceased, Sam Evans, sustained an accidental injury on June 15, 1954, which arose out of and in the course of his employment, and which injury resulted in deceased’s death on June 15, 1954.” Appellee is the widow of the deceased, Evans.

For reversal, the appellants contend that the finding of fact that decedent’s death resulted from an accidental injury in that the conditions under which he worked caused him to exert himself to a degree over and above that normally required to operate Ms machine, is not based upon sufficient competent evidence. It is based on speculation and conjecture, and therefore was insufficient to support the award.

Tbe record reveals that deceased died about 10:00 o’clock the morning of June 15, 1954, while at work in appellant’s mine. The immediate cause of death, as revealed by autopsy, was coronary thrombosis with occlusion. The autopsy also brought to light the fact that deceased had a weakened or damaged heart of long standing, such being attested to by the presence of scars on the heart.

As deceased was alone at the time of his death it is not known exactly what his activities were during the moments immediately preceding death. However, the deceased was employed to operate a machine wMch, by cable attachment, controlled the movements of a five hundred pound bucket used to capture barite ore. Some fifteen to thirty minutes before death occurred a cable attached to the ore bucket broke while deceased was dragging for ore. A fellow employee, Cletus Grinder, left deceased at the time the cable broke, and returned fifteen to thirty minutes later to find deceased, apparently dead, in an ore drift. The location of deceased’s body was some thirty-five or forty feet away from the machine he operated, in an ore drift that could only be reached by crawling or stooping. The body was covered to the arm pits with ore of various sizes ranging from the size of a grain of sand to the size of a man’s fist. The body was within reaching distance of the heavy ore bucket which, at the time was lodged, or hung, against a wooden timber. The broken cable, referred ;to by Grinder, had been tied in the customary manner.

The uneontradicted testimony showed in addition to the facts as previously set out that there was a decided decrease in the amount of air where deceased’s body was located and that the ore at tMs particular drift was gaseous and gave off fumes that made breathing difficult; that because of the size of the shot or dynamite blasts Scrapper Drift 91, the regular place of employment of the deceased, was too hot for him to go to work as his shift came on duty and it was necessary for him to wait a period of time before he could go to his place of employment; that Oletus Grinder, the fellow .employee who found the deceased’s body, worked several minutes attempting1 to rake the hot ore off the body — became weak from inhaling the gaseous air and had to leave the body in the shaft to go outside the shaft for fresh air.

The medical testimony adduced in this case is basically the same in that a heart attack such as was fatal to the deceased, could be brought about or precipitated by unusual physical effort or exertion, lack of oxygen and certainly it would be precipitated if an emotional disturbance or fear was added to the above conditions. In this particular instance the deceased had a previous heart condition as was shown by the autopsy report. The condition of the shaft in which the deceased was working was extremely hot and full of gaseous fumes and the deceased was found lying in a horizontal position buried to his arm pits in hot ore. We feel that these factors warrant a conclusion that deceased’s death was an accidental injury resulting from an overexertion above and beyond that normally required to perform his duties.

We find that there is substantial evidence to sustain the award of the Commission.

Affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Ferguson v. Van Gundy.
    5-978
    291 S. W. 2d 248
    Opinion delivered June 11, 1956.
    [Rehearing denied July 2, 1956.]

      0. E. Williams, for appellant.

      James R. Hale, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Mrs* Ferguson, brought this action in ejectment at law alleging ownership and the right to possession of “Lot 5, except West 35 feet, and North half of Lot 6, Block 6, Jennings Addition to the City of Fayetteville, Arkansas. ’ ’ She further alleged: that she acquired title to this property by deed dated June 12, 1950 from the Commissioners of Sewer District No. 1 of the City of Fay-etteville; that said Sewer District had acquired title through two foreclosure decrees for delinquent sewer tax assessments, the first deed to said District from the commissioner in chancery being procured on August 31, 1944 under a foreclosure decree of May 19, 1939, and the second deed to the District from the commissioner in chancery on March 20, 1950 under a foreclosure decree of June 6, 1944. Appellees answered with a general denial and also alleged as one of their defenses: “That if the Sewer District foreclosed assessment liens against the property of defendants, . . . each and all of said decrees of foreclosure of the assessment and all proceedings had thereunder are void, illegal and of no effect.” On a trial, and at the close of all the testimony, both appellant and appellees asked for a directed verdict, whereupon the court found in favor of appel-lees and directed the jury to so find. This appeal followed.

For reversal appellant says: “It is plaintiff’s (appellants) contention that the Court erred in refusing to give a directed verdict for the plaintiff and in giving a directed verdict for the defendants”; and argues that: “When the sewer district got deeds on August 31, 1944, under the 1939 foreclosure, and March 20,1950, under the 1944 foreclosure, it got two titles impervious to collateral attack.” We have concluded that the court did not err in directing a verdict for appellees.

Appellant, as indicated, is relying on her deed, dated June 12, 1950, from said Sewer District No. 1 by its Board of Commissioners, and in support, as above indicated, she argues that when the district got a deed on August 31, 1944 under the 1939 foreclosure decree and another deed on March 20, 1950, under the 1944 foreclosure decree, that, in effect, the deed to her from the district under either of those foreclosure decrees would be valid and pass title to her. As to the effect of the foreclosure decree of May 19, 1939, we hold, for the reasons hereinafter stated, that this decree is void and of no effect as to the property here involved. The record discloses (and in fact it is stipulated) that the 1939 de.cree described the property here involved as: “Owner: W. J. Sanders, Description -— Block 6, Pt. Lot 5 exc. W 35 ft. & N 1/2 Lot 6 (Among other lands) Years Delinquent: 1929 to 1937 inc. Assessment & Penalty 24.58.” No mention of any Addition or city is contained in said description of the property. The failure to describe this property properly, by including in the description “Jennings Addition to the City of Fayetteville,” made this 1939 decree and all proceedings thereunder void in so far as it affected the property here involved. In Massey v. Bickford, 208 Ark. 685, 187 S. W. 2d 541, where there was involved.a tax forfeiture sale and a deed from the State Land Commissioner based thereon, and wherein the property was described as “Lot 5, Block 6, Fishback No. 2 Addition to the City of Fort Smith,” and where it appeared that there was no “Fishback No. 2 Addition” in said city, we said: “It is undisputed that there is no such addition to the City of Ft. Smith as ‘Fishback No. 2,’ and we think the forfeiture, sale, confirmation and deed to appellee are all void and ineffective to convey the title to Lot 5, Block 6, Fishback Addition. It is conceded that the rule is that property must be sold under a proper and valid description to effect a valid sale. See Shelton v. Byrom, 206 Ark. 665, 177 S. W. 2d 421, and cases there cited. But appellee insists that, because we have held in certain cases, ‘the description of land in a tax deed is sufficient if it furnishes a key by which the land may he definitely located by proof aliunde,’ Moseley v. Moon, 201 Ark. 164, 144 S. W. 2d 1089, this lot may be definitely located in Fishback Addition. This cannot be true. Since the description places the lot in Fish-back No. 2 Addition, no amount of proof aliunde could locate it in an addition that does not exist. The description being absolutely null and void, it follows that all proceedings by which the State attempted to acquire title, including the confirmation, are null and void, as the court would have no power to confirm a title where there was a total absence of any kind of title.” As to the foreclosure decree of Sewer District No. 1 on January 6, 1944, while it appears that the property here was correctly described in the decree of foreclosure, however, neither the “Commissioner’s Report of Sale” nor the “Commissioner’s Deed” to the District, based on this decree, in the description of the property, made mention of the “City of Fayetteville.” In these circumstances the Commissioner’s Deed to Sewer District No. 1 under this 1944 decree was void and conveyed no title to the District to the property here involved, and following our rule announced in the Massey v. Bickford Case above, the deed from the District, dated June 12, 1950, to appellant, Mrs. Ferguson, conveyed no title since the District had no title to convey to appellant.

Our rule is well established that in a case of this nature, appellant, (Plaintiff in the court below) must recover on the strength of her own title, and not on the weakness of her adversary, (appellees). Nix v. Pfeifer, 73 Ark. 199, 83 S. W. 951; Crow v. Johnston, 209 Ark. 1053, 194 S. W. 2d 193; Bailey, Trustee v. Martin, 218 Ark. 513, 237 S. W. 2d 16.

Affirmed.


text:
    Olin Mathieson Chemical Corporation v. Shirey.
    5-952
    291 S. W. 2d 250
    Opinion delivered June 11, 1956.

      Shackleford & Shackleford, J. M. Shackleford, Jr., Mehaffy, Smith & Williams, John T. Williams and Robert V. Light, for appellant.

      Bruce Bennett, William I. Prewett and Wright, Harrison, Lindsey & Upton, for appellee.
   Ed. F. McFaddin, Associate Justice.

The sole question on this appeal is whether the Trial Court was in error in refusing to direct a verdict for the appellant.

The appellee, Mrs. Ethel Shirey, as administratrix of the estate of her husband W. E. Shirey, filed action against Olin-Mathieson Chemical Corporation (hereinafter called “Olin”), seeking to hold Olin liable for the negligent acts of L. C. Lester, the driver of the truck that killed'W. E. Shirey. -Lester was hauling a truck load of pulpwood -timber from-'Olin’s -land in South Arkansas to the International Paper Company in Louisiana when he negligently drove his truck on the wrong side of the highway, into a truck being driven by W. E. Shirey; and, as a result, Shirey was killed. Olin has all the time insisted that there was no substantial evidence to take the case to the jury on the question of the liability of Olin for the negligence of L. C. Lester. Olin’s defense was and is that Lester was not its employee, and that. Olin was and is in no way liable for the negligence of Lester.

Olin claims that it sold its pnlpwood timber in Arkansas to Joe Canady, and that the relation between Olin and Canady was that of seller and buyer; that Canady contracted with Leo Harper, an independent contractor, to cut the pnlpwood timber and transport the same from Olin’s lands to the plant of the International Paper Company : and that Lester was the servant of Harper, who was an independent contractor. Thus, Oliii claims that it could not be legally responsible for the acts of Lester, the servant of Harper, since Harper was an independent contractor dealing with Can-ady, who was, in turn, a buyer of timber from Olin.

But the appellee claims that the so-called seller-buyer relationship between Olin and Canady was a sham to conceal the real fact that Canady was an agent of Olin for the sole purpose of selling pnlpwood timber: that Olin directed the activities of Canady; that Can-ady directed the activities of Harper; that Lester, as the admitted servant of Harper, was in effect working for Olin; and that Olin had the right to direct and control the operations of Lester in driving his truck. In the excellent briefs submitted in this Court, both sides have cited our authorities on independent contractors. Some of the cases so cited are: Moore and Chicago Mill & Lbr. Co. v. Phillips, 197 Ark. 131, 120 S. W. 2d 722; Pine Woods Lbr. Co. v. Cheatham, 186 Ark. 1060, 57 S. W. 2d 813; Farmer Stave & Heading Co. v. Whorton, 193 Ark. 708, 102 S. W. 2d 79; Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 674; Rice v. Sheppard, 205 Ark. 193, 168 S. W. 2d 198; Fordyce Lbr. Co. v. Wardlaw, 206 Ark. 35, 176 S. W. 2d 241; Hearnsberger v. McGaughey, 218 Ark. 663, 239 S. W. 2d 17; Mathews v. Zimmerman, 221 Ark. 622, 255 S. W. 2d 168; Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S. W. 2d 888; Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S. W. 2d 341; Barr v. Matlock, 222 Ark. 260, 258 S. W. 2d 540; Boone v. Massey, 212 Ark. 280, 205 S. W. 2d 454; Sinclair Refining Co. v. Piles, 215 Ark. 469, 221 S. W. 2d 12; Cap ital City Lbr. Co. v. Cash, 214 Ark. 35, 214 S. W. 2d 363; Ozan Lbr. Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182.

Olin insists that there is no substantial evidence to take the case to the jury as to the liability of Olin for the. negligence of Lester. The rule is well established that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury. St. L. I. M. & S. Railway Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786. It is also well established that it is proper to direct a verdict for the defendant only when, under the evidence and all reasonable inferences deducible therefrom, the plaintiff is not — under the law — entitled to recover. Wortz v. Ft. Smith Biscuit Co., 105 Ark. 526, 151 S. W. 691.

We hold that the aggregate of the evidence, as hereinafter listed in the numbered paragraphs, was sufficient to present a jury question as to Olin’s liability for the negligence of Lester:

(1) Olin owned a quarter million acres of timber land in South Arkansas and North Louisiana and regularly sold pulpwood from these lands. Olin sold pulpwood from its Louisiana lands to only one person, who was O. B. Crow; and Olin sold pulpwood from its Arkansas lands to only one person, who was Joe Canady.

(2) Canady had no capital invested and never directly paid Olin for such timber. Instead, all the timber from Olin’s land was taken to the plant of the International Paper Company at Bastrop, Louisiana, and there scaled for the first time; and International calculated the amount of the timber at so much per cord and remitted to Olin, direct, the amount due Olin for such timber. At the time herein involved, International was paying $15.55 per cord for the timber and was remitting to Olin $3.50 per cord for pine timber and $2.50 per cord for gum timber. International had on file a written authorization from Canady to make such remittances direct to Olin. After making such, remittances to Olin, the remaining balance of the money was sent to Canady by weekly remittance; and from such amount Canady paid Harper and others similarly working. Harper, in turn, settled with Lester and Harper’s timber cutters. Thus, Canady never paid Olin, direct, for any timber cut and never had any timber deed of any kind from Olin.

(3) The dealings between Olin and Canady had extended over several years; yet there had never been a written agreement of any kind as to the terms and conditions under which it was claimed that Olin sold, and Canady bought, the timber. The price that Olin was to receive from time to time was an oral matter. As aforesaid, there was no writing of any kind to evidence any agreement or sale between Olin and Canady; and Olin’s agreement with Canady was terminable at any time. Likewise, all of Canady’s agreements with Harper were oral and were terminable at any time.

(4) Olin’s timber men would go over certain of Olin’s lands in Arkansas and mark the trees and tops to be cut into pulpwood. Most of the time Canady went with Olin’s timber men, but on one or more occasions Canady was away and Leo Harper went in place oL Canady with Olin’s timber men.

(5) After the trees were marked, Canady authorized Harper to cut the trees and tops into pulpwood and, after such was done, the pulpwood was loaded into trucks and hauled to the International Paper Company’s plant in Louisiana, where the timber was scaled. One such truck was that of L. C. Lester.

(6) International Paper Company issued a scale ticket for each load. “ Canady-Harper ” was the name on the timber scale slips here involved. Once a week International delivered the scale tickets to Canady and paid him at the cordage rate shown, less the amount deducted and remitted direct to Olin, as previously recited. Canady then took the scale tickets to Olin and left them for Olin to calculate and determine whether all the timber cut from Olin’s lands had reached International. The scale tickets remained' with Olin.

(7) Some time prior to the events of this litigation, Olin’s Chief Forester had become suspicious that some of the trucks hauling pulpwood from -Olin’s lands might not be taking the load to the International Paper Company’s plant.' -So Olin’s Chief Forester (the man in direct control for Olin) had “requested” Canady to have all the trucks hauling pulpwood from Olin’s Arkansas lands numbered in even numbers, and had likewise “requested” Crow to have all trucks hauling pulpwood from Olin’s Louisiana lands to be numbered in odd numbers. The identification of each truck was by a number in a circle painted on the door of the truck so hauling. Neither Canady nor Harper knew who had selected or assigned the numbers, and no one knew who paid for the number being placed on Lester’s truck involved in this collision. At all events, the trucks were numbered as “requested”; and Lester’s truck was No. 40.

(8) Olin gave instructions to its field men and spotters that if anyone saw a truck loaded with pulpwood and bearing the Olin identification number, as aforesaid, such person was to make a note of the truck number, and the time, and direction the truck was headed, and report such information to Olin so that a check-up could be made to see if tbe truck reached tbe plant of tbe International Paper Company.

(9) After a truck was once numbered by tbe Olin system, tbe driver of tbe truck was not to baul any pulpwood in that truck from any lands except Olin’s, or to any place except tbe International Paper Company. If tbe driver of tbe truck desired to use tbe truck except for tbe Olin-International trip, then advance notice of sucb particular trip was to be given to Olin; and in slicb instance tbe truck driver was to be given an instrument bearing Olin’s approval as to sucb particular trip.

(10) If a truck, numbered to tbe said Olin identification system, should be making a trip and taking pulpwood from lands other than Olin’s to tbe International Paper Company’s plant at Bastrop, tbe copy of Olin’s approval of such outside trip was to be given to International.

(11) On one occasion a truck bearing an Olin identification number, as aforesaid, broke down enroute to tbe International Paper Company’s plant; and one of Olin’s executives instructed the driver of the truck to transfer the load to an unnumbered truck and to tell the International Paper Company that such Olin executive had so ordered.

(12) Canady paid the Workmen’s Compensation insurance coverage on all of the men cutting and hauling for Leo Harper, as well as all other persons cutting and hauling pulpwood from Olin’s Arkansas lands. He may have been repaid by Harper, but that point is uncertain.

On the facts reflected by the foregoing numbered paragraphs, we hold that a question was made for the jury as to whether Olin had the right to direct and control the operations of Lester and his truck. There is no need to take any one of these isolated facts and say that such matter in itself was sufficient to support the Court’s decision in sending the case to the jury. The point is that all of these facts together made a case from which reasonable men might draw the inference that Canady was in fact an agent of Olin and that Canady, as such agent, dealt with Harper as a servant rather than an independent contractor and that Olin became liable for the negligence of Harper’s servants. Thus, on the total of all these facts, we hold that a jury question was made.

The judgment is affirmed.

       Other cases to the same effect are collected in West’s Arkansas Digest, “Trial,” § 139.

       Other.cases to the same effect are collected in West’s Arkansas Digest, “Trial,” § 139.

       An inter-office communication brought into the record from Olin’s files, dated August 26, 1964, read in part: “SUBJECT: Pulpwood truck numbers assigned to truckers hauling USM stumpage:
      Joe Canady’s producers- — Arkansas
      Truck Truck Truck
      No. No. No.
      2. L. E. Gatson 16.J. L. Gatson 30. Leo Harper
      4. C. B. Smith 18. Prank Thrower 32. Leo Harper
      6. R. M. Smith 20. Prank Thrower 34. C. O. Rogers
      8. R. M. Smith 22. L. E. Gatson 36. Dick Dugal
      10. J. L. Gatson 24. C. 0. Rogers 38. Clea Gatson
      12. G. A. McGee 26. C. O. Rogers 40. Leo Harper
      14.J. L. Gatson 28. E. D. Purlow 42. Taunton
      B. Crow’s producers (La.)
      Truck Truck Truck
      No. No. No.
      1. J. C. Edwards 19. M.J. Halley 37. W. L. Andrews
      8. H.V. Crow 21. Bill Halley 39. Will Traylor
      7. L. L. Edwards 25. J.C. Hodge 43. K.C.Golsby
      5. L. L. Edwards 23. C. E. Halley 41. Will Traylor
      9. S. D. Kennedy 27. J. C. Nales 45. A. L. McElroy
      11. S. H. Cooper 29. J. L. Thomas 47. Leon Washington
      13. E. Antley 31. E. E. Auger 49. Jas. C. Hunt”
      15.J. B. Ward 33. J. A. Auger
      17.J. B. Ward 35. Prank Will

       In the record are two letters wherein Leo Harper had made outside hauls. These letters were written by Olin’s executives and signed by Harper before' the proposed trip, and were worded as follows:
      “August 2, 1954
      “Mr. E. A. Freeman
      Frost Lumber Industries, Inc.
      Huttig, Arkansas.
      Dear Mr. Freeman:
      I will be hauling one load of gum pulpwood today, August 2, 1954, that belongs to B. A. Meshell. I have bought this load of wood from Mr. Meshell. This wood does not belong to Olin Industries, Inc. This is the only load of wood I will haul on this permit. This load of wood is on the side of the road about 3 miles north of Bastrop. I will haul this on my truck No. 32.
      Yours very truly,
      Leo Harper.
      This is approved August 2, 1954. E. A. Freeman, Head Forester.”
      “September 9, 1954
      Mr. E. A. Freeman
      Olin Industries, Inc.
      Huttig, Arkansas.
      Dear Mr. Freeman:
      I will haul 1 load of pulpwood from Belton Frisby’s place 4-miles north of New London to Crossett today.' Also we will be hauling 3 loads from East Main Street near El Dorado today to Crossett. We have no quota at Bastrop this week. This is the only outside wood I will haul without again notifying you and getting approval.
      Yours very truly,
      Leo Harper.
      This hauling has been approved this day, September 9, 1954.”


author: Ed. F. McFaddiN, Associate Justice.

text:
    Arkansas State Board of Architects v. Larsen.
    5-989
    291 S. W. 2d 269
    Opinion delivered June 11, 1956.

      Mehaffy, Smith & Williams and B. S. Clark, for appellant.

      Bethell & Pearce, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This appeal must be dismissed because of the absence of a final order from which an appeal might be prosecuted.

The appellant, Arkansas State Board of Architects, filed suit in equity against the appellee, Larsen. The complaint alleged that Larsen had prepared plans and specifications for the construction of a shopping center in Fort Smith; and that appellee was not a licensed architect, as required by § 71-301 et seq. Ark. Stats. The prayer of the complaint was that Larsen be enjoined from the further practice of architecture. To the complaint Larsen demurred on the ground that the Board’s remedy at law was adequate. The Chancery Court sustained the demurrer and entered an order, which recited:

“. . . that the Demurrer of the defendant to the Complaint of the plaintiff be, and the same is hereby, sustained, and the plaintiff is given leave to file an amendment to its Complaint within thirty days from this date, if so advised, and the defendant shall recover his costs herein expended, to all of which the exceptions of the plaintiff are noted.”

Appellant attempts to appeal from the above quoted order; and appellee says: “The order from which this appeal is taken is not a final and appealable order.” The appellee is correct. We have frequently held that where the record shows only an order made by the lower court disposing of a demurrer, and no final order or judgment, no appealable order is shown. Campbell v. Sneed, 5 Ark. 398; Hamilton v. Buxton, 5 Ark. 400; Hanger & Co. v. Keating, 26 Ark. 51; Johnson v. Robinson, 9 S. W. 432; Gates v. Solomon, 73 Ark. 8, 83 S. W. 348; Moody v. Jonesboro, Lake City & Eastern Br. Co., 83 Ark. 371, 103 S. W. 1134; Atkins v. Graham, 99 Ark. 496, 138 S. W. 878; Adams v. Primmer, 102 Ark. 380, 144 S. W. 522; Davis v. Receivers St. Louis & San Francisco Rr. Co., 117 Ark. 393, 174 S. W. 1196; State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S. W. 555; Fairview Coal Co. v. Ark. Central RR. Co., 153 Ark. 295, 239 S. W. 1058.

The provision in the order here involved — adjudging the recovery of costs — does not make- the order final. In Johnson v. Robinson, 9 S. W. 432, this Court, speaking through Chief Justice Cockrill, said, in a similar situation:

“A demurrer to the complaint was sustained, and costs thereupon awarded against the plaintiff. From these orders he appealed. There is no final judgment; nothing from which an appeal will lie. Benton Co. v. Rutherford, 30 Ark. 665, Hamlett v. Simms, 44 Ark. 141. Dismissed.”

The provision in the order here involved — allowing time for amendment “if so advised” — does not make the order final after thirty days. In Radford v. Samstag, 113 Ark. 185, 167 S. W. 491, the trial court over-ruled a demurrer and allowed thirty days for answer; and such order was held not to he final and ap-pealable. We there said: ■

“This was not a final order, and did not adjudge the rights of the parties, and there was nothing to prevent the court from reconsidering the demurrer, while said cause was still pending and undisposed of before him, and from changing his opinion and decision if he saw proper to do so.”

Since the record in this case does not show that the Trial Court made a final order or decree, the appeal must be dismissed as premature.

       See § 71-301 et seq. Ark. Stats, for the law creating the appellant Board and involved in this case.

       The opinion in this case does not appear in the Arkansas Reports; so we have quoted it in full herein.

       It is interesting to note that in the case of Radford v. Samstag, su-pra, the Trial Court several terms later decided that - the original demurrer should have been sustained; and we held that the Trial Court never lost jurisdiction after over-ruling the demurrer. Another interesting case is that of Portis v. Board of Public Utilities, 212 Ark. 822, 208 S. W. 2d 772.


author: Motor W. Millwee, Associate Justice.

text:
    Drewry v. Sykes.
    5-981
    291 S. W. 2d 258
    Opinion delivered June 11, 1956.

      Wiley W. Bean, for appellant.

      D. B. Bartlett and Marti E. Woolsey, for appellee.
   Motor W. Millwee, Associate Justice.

On March 4, 1952, appellee, Ralph Sykes, entered into a written partnership agreement with appellant, L. E. Drewry, and H. K. Blackard for the operation of a coal mine located on a 40-acre tract of land in Johnson County belonging to appellee. The partnership was known as New Spadra Coal Company and was for a period of five years unless earlier dissolved by agreement or by operation of law. The agreement provided tbat appellee would lease to tbe partnership the coal underlying the tract, the coal mine and buildings for a term of five years with the right of renewal for an additional five years for a royalty of twenty-five cents per ton payable on the fifteenth day of each month for all coal mined during the preceding month. In addition, certain machinery and tools belonging to appellee would become the property of the partnership.

The agreement also provided that appellee would have a 3/4 interest in the partnership and that Drewry and Blackard would each have a 1/8 interest for which they agreed to pay $3,000 each by performing labor for wages to be agreed- upon. All such wages were to be applied on the payment of their respective interests until the beginning of production and thereafter only twenty-five per cent of such wages would be so applied. In addition to wages, they also agreed to apply twenty-five per cent of any profits accruing to them from the operation until the full purchase price of $3,000 each was paid to appellee.

On June 23, 1952, appellant, Harve Willis, purchased a 1/8 interest in the partnership from appellee in accordance with the terms of the agreement. On November 10, 1952, Blackard sold his 1/8 interest to Willis, giving him a 1/4 interest, Drewry a 1/8 interest and appellee a 5/8 interest in the partnership subject to payment for the respective interests in the manner provided in the original agreement.

The partnership began operations shortly after execution of the agreement in March 1952. In the summer and early fall of 1952, only a few cars of coal were produced and the appellants and Blackard had made some improvements to the -mine, including the digging of a shaft 100 feet deep and appellee had spent considerable money in defraying expenses of the operation. The partnership was operating at a loss primarily because no sale could be found for the coal, and appellee was paying all partnership bills from his private funds. On November 1, 1952, it was agreed that the appellants and Blaekard would operate the mine individually, pay all operating expenses and retain all profits after payment of twenty-five cents per ton royalty to appellee. The operation was continued by appellants under this arrangement until January 2,1953 when they turned the keys over to appellee and procured other employment. Operations ceased and the mine remained idle until August 25, 1954 when the appellants returned and resumed operations on the same individual basis as when they quit in January, 1953, except that they failed to pay any royalty to appellee for the coal they produced.

On October 18, 1954, appellee brought this suit for dissolution of the partnership and an accounting and settlement of its affairs. After a lengthy trial the chancellor made extensive findings as the basis of a decree granting the relief prayed. After crediting appellants Avith all labor and money paid on their interests in the partnership, the court found that Drewry still owed $406.07 and Willis $103.20 for their respective interests. The court ordered the sale of all partnership assets including all machinery and equipment originally contributed by appellee together with all additional machinery and movable buildings, including a coal tipple, which had been placed on the premises since formation of the partnership. It was further directed that net proceeds of the sale be applied as follows: First, the sum of $542.19 to creditors other than partners; second, the sum of $8,082.01 to appellee as a creditor of the partnership; and third, that if any sale proceeds remained after payment of said liabilities, then the court would make further orders for the distribution of such proceeds. The court further directed that if the sale proceeds were insufficient to pay said liabilities, then said partners should contribute to the payment of said unpaid bal-anee according to their respective interests in the partnership.

For reversal appellants first contend: “The trial court erred in stating an account for appellee, since an account had already been stated under oath and is a part of this record.” This contention is predicated on the theory that appellee’s answers to certain discovery interrogatories propounded by appellants, together with the exhibits thereto, constituted an account stated between the parties. These interrogatories and answers were propounded and given pursuant to Act 335 of 1953. They were filed with the clerk but never offered in evidence. Conceding, without deciding, that such interrogatories and answers are properly before us, they do not constitute an account stated between the parties. In Charlesworth v. Whitlow, 74 Ark. 277, 85 S. W. 423, this court held (headnote 2): “In an account stated two things are necessary, viz: (1) that there be a mutual examination of each other’s items; (2) that there be a mutual agreement as to the correctness of the allowance or disallowance of the respective claims and of the balance on final adjustment.” We have also defined an account stated as an account balanced and rendered with an assent to the balance, express or implied. Brown v. Southern Grocery Co., 168 Ark. 547, 271 S. W. 342, 40 A. L. R. 383. In his answers to the interrogatories, ap-pellee did not purport to strike a balance between the parties and there was no mutual agreement as to the correctness of the matters set forth in such answers. On the contrary, much of the testimony offered by appellants was in contradiction of some of the answers made by appellee.

It is next argued that the trial court erred in holding that the mine shaft and other realty were not a part of the partnership assets; and in requiring the purchasers of said improvements to remove a concrete building, coal tipple and blacksmith shop from the premises. Although appellants disavow any claim of ownership in the realty, it is nevertheless argued that they had a 3/8 interest therein until March 4, 1962 under that provision of the partnership agreement in Avhich appóllee agreed to lease the mine and buildings to the partnership for a renewable 5-year term. While appellants make no contention that the partnership should not have been dissolved, it is argued that the mine shaft and a lease, which was never executed, should have been ordered sold along with the other properties. The mine shaft is simply a hole in the ground which became a part of the realty, and it is difficult to understand how the court could have ordered it sold or removed. The court did hold that all movable machinery and buildings were partnership assets and ordered them sold with the right of removal.

The execution of the lease by appellee was contingent upon the operation of the partnership in accordance with the terms of the agreement which was abandoned by mutual consent of the parties after November 1, 1952. A preponderance of the evidence supports the chancellor’s finding that all mining operations after November 1, 1952 were conducted by the appellants individually, and not as a partnership, pursuant to the new agreement under which they were to pay all expenses and receive all profits and pay appellee twenty-five cents per ton royalty. In doing so, appellants clearly waived any rights they might otherwise have had under this feature of the agreement.

Appellants next say: “The Court erred in holding that Appellant Drewry must pay a balance of $406.07 into the partnership, the balance he owed on his 1/8 interest in the partnership; and that Appellant Willis owed and must pay into the partnership $103.20 as a balance due on his 1/4 interest in said partnership.” A sufficient answer to this contention is that the court did not decree that appellants pay any amount into the partnership, There is no contention that the amounts of the unpaid balances which the court found due by appellants in payment for their respective interests are incorrect. The court did not direct that appellants pay these amounts into the partnership but decreed that if any proceeds from the sale of partnership assets remained after payment of the liabilities, then the court would make supplemental orders for the proper distribution of such proceeds. In the event of an excess of sale proceeds over liabilities, the conrt will doubtless take these unpaid balances into consideration in determining the respective interests of the parties in said proceeds.

The fourth point argued by appellants is that the trial court erred in holding they were not entitled to damages for breach of the partnership contract by ap-pellee. In this connection the court expressly found that appellants were not entitled to damages for the alleged wrongful dissolution of the partnership by appellee or alleged wrongful issuance of the temporary order restraining appellants from further operation of the mine. A great volume of testimony was introduced on this issue which we do not attempt to detail. As previously indicated, the partnership enterprise proved to be mutually unprofitable for all the parties concerned and was virtually abandoned in November 1952 when appellants proceeded to operate the mine individually for a time. This arrangement also proved unprofitable and appellants abandoned the project and procured other employment in January, 1953. When appellants returned nineteen months later they resumed operations by using the partnership equipment in mining coal and retaining the proceeds of all sales made by them without paying any royalty to appellee. There is considerable dispute as to the negotiations between the parties at this time which resulted in their failure to agree on a plan of future operation of the mines. At that time the partnership owed appellee approximately $8,000 which he had advanced to defray expenses of the partnership. Under all these circumstances, we cannot say the chancellor erred in refusing to hold there was a breach of contract on his part.

Appellants finally say that, regardless of the final disposition of the case on its merits, costs in the sum of $224.25 for that part of the record on appeal designated by appellee should be adjudged against him under Sec. 12 of Act 555 of 1953 (Ark. Stats. Sec. 27-2127.6). The statute authorizes this court to withhold or impose costs as circumstances may require for a party’s infraction of the rule against the inclusion of - nonessential matters as part of the record on appeal. It further provides that no presumption shall he indulged that the findings of the trial court are supported by any matters omitted when the record has been abbreviated by agreement or without objection from opposing parties. Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486. We do not concur in appellants’ contention that the record designated by appellee had no bearing on the decision of the questions presented by the appeal. It is true that appellee designated the entire record after appellants had designated only certain portions thereof, but the chancellor sustained in part appellants’ motion to strike certain portions of the record designated by appellee. We cannot say that the remaining portions were not essential to the decision of the questions presented by the appeal. On the contrary, we agree with appellee’s assertion that he might have found himself powerless to sustain the correctness of the chancellor’s accounting and other conclusions reached if he had not designated that part of the record now challenged by appellants. See Manila School District No. 15 v. Sanders, 226 Ark. 270, 289 S. W. 2d 529, where this court held that an appellee could not be heard to say that some portion of the testimony not in the record justified the trial court’s rulings where he failed to designate any additional portion of an abbreviated record on appeal.

Affirmed.


text:
    Daggett v. St. Francis Levee District.
    5-984
    291 S. W. 2d 254
    Opinion delivered June 11, 1956.
    [Rehearing denied July 2, 1956.]

      Daggett & Daggett, W. H. Daggett, for appellant.

      F. N. Burke, Jr., for appellee.
   George Rose Smith, J.

This is a taxpayer’s suit brought by the appellant to enjoin the directors of the St. Francis Levee District from putting into effect a retirement plan for its officers and employees. The proposal, as approved by a resolution of the board of directors, contemplates that each participating officer and employee will contribute three per cent of his salary to the retirement fund, that these contributions will be matched with money appropriated from the district’s treasury, and that the participants in the plan, upon reaching the age of sixty-five, will be entitled to retirement pay based upon their contributions and length of service. The chancellor sustained a demurrer to the complaint and dismissed the suit.

The levee district tacitly concedes that it has no inherent power to set up such a retirement plan in the absence of legislative authority. For that authority the district relies upon Act 126 of 1951, which provides that the directors shall have the power to fix the compensation to be paid to the district’s officers and employees. Ark. Stats. 1947, § 21-648. It is contended that retirement pay amounts to compensation and therefore falls within the scope of the authority granted to the directors by the 1951 statute.

It cannot be doubted that a retirement allowance, financed over a period of years by the joint contributions of the employer and the employees, represents compensation rather- than a mere gratuity. Kane v. City of Flint, 342 Mich. 74, 69 N. W. 2d 156; Salz v. State House Com’n, 18 N. J. 106, 112 A. 2d 716; Retirement Bd. of Allegheny County v. McGovern, 316 Pa. 161, 174 A. 400. Cases .might also-be cited to show that compensation embraces the furnishing of group insurance, medical benefits, work uniforms, meals, housing, and anything else of value that the employer provides in return for the work done by his employees.

The question, however, is not whether retirement pay comes within the definition of compensation; it is whether the legislature may fairly be said to have had such pay in mind when it enacted the statute relied on by the district. When the statute is considered in the light of its history there can be no doubt that the enactment was for a purpose quite different from that of enabling a levee district to use tax funds for the creation of a pension plan for its employees.

It was formerly the practice of the General Assembly to fix by statute the salaries to be paid to employees of the St. Francis Levee District. Act 93 of 1913, § 3; Act 116 of 1920, § 2. Those two sections were expressly repealed by Act 49 of 1943, which authorized all levee districts to fix the compensation of full-time employees. Ark. Stats., § 21-612. The 1951 act, which applies only to districts composed of land in four or more counties, extended the district’s authority to all employees, whether full-time or not.

It is perfectly clear that the purpose of the 1943 and 1951 statutes was simply to transfer to levee districts a power that the legislature had previously reserved to itself, that of fixing the salaries to be paid to officers and employees of the various districts. That the 1943 statute embodied an express repeal of earlier acts on the same subject establishes the legislative intent beyond question. If the lawmakers had meant to enter a new field by authorizing the use of tax money for the creation of a pension fund that intention would doubtless have been expressly stated in the statutes. The fact that the intention was not so stated convinces us that it did riot exist. Additional legislation is needed if the appellee is to have the authority to adopt a retirement plan such as the one now in issue.

Reversed, the demurrer to be overruled.

McFaddiN, J., concurs.