author: George Eose Smith, J.

text:
    Pinnacle Old Line Insurance Co. v. Ellis.
    5-1419
    307 S. W. 2d 882
    Opinion delivered December 23, 1957.

      Talley ■& Owen and William L. Blair, for appellant.

      G. P. Houston, for appellee.
   George Eose Smith, J.

This is an action upon a bealtb and accident insurance policy issued by the appellant to Y. E. Ellis and three members of his family. While the policy was in force Mrs. Ellis was confined to a hospital and underwent a combined hysterectomy and appendectomy. Upon the insurer’s refusal to pay the claim the Ellises sued for hospital and medical expenses amounting to $520. Judgment in their favor was entered upon a jury verdict for $333.96. The defendant later asked the court to reduce the judgment to $212, which was asserted to be the insurer’s maximum liability under the policy for the several items enumerated in the complaint. This appeal is from the original judgment and from the court’s refusal to grant the requested reduction.

On the basic issue of liability tbe appellant contends that tbe claim is not within tbe coverage of tbe policy. Tbe defendant offered in evidence tbe original application for tbe insurance, which shows that Mrs. Ellis stated that she suffered from “female trouble” and waived any liability on tbe part of tbe insurer for that ailment. It is argued that according to tbe proof, the hysterectomy was tbe sole cause for Mrs. Ellis’s hospitalization and falls within the waiver of coverage contained in the application.

On this issue tbe appellant’s position is fatally defective in two particulars. First, tbe contract expressly covers tbe operation in question and further provides: “This policy, including tbe endorsements and tbe attached papers, if any, constitute the entire contract of insurance. ’ ’ To prove tbe affirmative defense of waiver it was necessary for tbe insurer to show that a copy of tbe application was attached to tbe policy and become part of tbe contract. There is no clear-cut proof in tbe record that tbe application was in fact incorporated in tbe policy. Tbe insurer, without requesting a directed verdict, obtained an instruction by which this question of fact was submitted to tbe jury. In these circumstances it cannot now be contended that tbe verdict on this issue was erroneous. Berman v. Shelby, 93 Ark. 472, 125 S. W. 124; Western Union Tel. Co. v. Cowardin, 113 Ark. 160, 168 S. W. 1133. Secondly, tbe notice of appeal was filed on January 22 and refers to tbe original judgment as having been rendered on December 22.. Tbe judgment itself is dated December 19 and does not show when it was entered of record. Even if tbe judgment was entered on December 22, as the notice of appeal indicates, tbe notice was not filed until tbe thirty-first day thereafter, which is too late for this jurisdictional step to be taken. Ark. Stats. 1947, § 27-2106.1; General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40. It should be observed that tbe thirtieth day did not fall on Sunday, as was true in White v. Avery, 226 Ark. 951, 295 S. W. 2d 364.

Tbe trial court was correct in denying tbe motion to reduce tbe amount of tbe judgment. Tbe policy limitations relied upon are not set forth, in the main insuring clause, which provides in general terms for protection against loss caused by hospital, surgical, and other specified expenses. The restrictions upon the insurer’s liability are contained in a subsequent schedule and constitute exceptions that must be pleaded affirmatively. Stucker v. Hartford Acc. & Ind. Co., 220 Ark. 475, 248 S. W. 2d 383. These defenses were not mentioned in any way until after the verdict. As we said in a similar situation in Greenwich Ins. Co. v. State, 74 Ark. 72, 84 S. W. 1025: “If the appellant is right in its contention, then it had a defense, pro tanto, to the suit, and a failure to plead it waived it. This court has frequently decided that when a battery is masked in the trial court, it cannot be opened in this court. ’ ’

Affirmed


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Taliaferro v. Gamble.
    5-1401
    307 S. W. 2d 884
    Opinion delivered December 23, 1957.

      John E. HooJcer, for appellant.

      ■Coleman, Gantt & Ramsay, for appellee.
   Paul Ward, Associate Justice.

This litigation is over. the north and south boundary line between land belonging to appellants on the west and land belonging to appellee on the east. Hereafter we will refer to appellants,’ land as the “west farm” and to appellee’s land .as the “east farm”. Both farms (insofar as they relate to this opinion) are in the north half of section 35, Township 7 South, Range 8 West, in Lincoln Connty. Bayon Bartholomew rnns from near the northeast corner of said half section in a southwesterly direction to a short distance north of the center of said section, and thence in a northwesterly direction. The course of the Bayou is such that the east farm comprises all of the northwest quarter of the northeast quarter and all of the southwest quarter of the northeast quarter lying-north and west of the Bayou, and the west farm comprises all the northeast quarter of the northwest quarter and all of the southeast quarter of the northwest quarter lying north and east of the Bayou less 7 acres "belonging to the east farm. It is here noted that the 7 acres parcel (described by metes and bounds in the pleadings) lies in the shape of a parallelogram (717 feet north and south and 425 feet east and west) and is bounded on the south by the Bayou and on the east by the north and south line between the northeast quarter and the northwest quarter of said section 35 — the same line which divides the two farms.

Many years before 1940 the west farm was owned by James H. Taliaferro, and the east farm (including the 7 acres) was owned by his brother, Zack Taliaferro. James died testate in 1942, leaving his farm (west farm) to Zack as trustee, with authority to keep it rented and to pay the net income to the deceased’s wife and others designated in his will. Zack looked after both farms until December 22, 1944 when he sold his farm (the east farm) to Sam Gamble, the appellee (the sale was to appellee and his wife, in fact,) and at the same time Zack, as trustee, rented the west farm to appellee. Appellee thereupon looked after and cultivated both farms for the years 1945 and 1946. On November 6, 1946 Zack died, whereupon the widow of James, Mrs. Kate Taliaferro, one of the appellants, succeeded him as trustee, and continued to lease the west farm to ap-pellee until the end of 1952.

On May 13, 1953, Mrs. Kate Taliaferro, her 3 nephews and 2 nieces (owners of the west farm) filed a complaint against Sam Gamble, appellee, in which they described their land substantially as above set ont and alleged that appellee “had taken posession of a part of said property and appropriated for his own nse a parcel 150 feet wide east and west extending in length approximately 2,000 feet running north and south along the east side of plaintiff’s property . . In answer, appellee pleaded his deed from Zack Taliaferro, setting out the true description, and 35 years adverse possession by himself and his predecessors.

The chancellor, after hearing testimony of several witnesses and the introduction of several exhibits, and after personally viewing the premises, found the issues in favor of appellee; dismissing appellants’ complaint. For the reasons set out hereafter, we conclude that the decree of the trial court must be affirmed.

While appellants, in their pleadings, did not rely on adverse possession or an established boundary line, much of their testimony was directed to those issues. Several witnesses, some of whom had worked on west farm and others who were familiar with it, testified that as early as 1924, and for many years thereafter, there was a turn-row which they considered or assumed to be the dividing line between the two farms. It is not shown however that James and Zack ever agreed on a turn-row or any other marker for a north and south boundary line between the two farms. There is no testimony which shows definitely where the turn row is located with reference to the true north and south line, but some witnesses said the turn-row was some 150 feet east of the line claimed by appellee. Other witnesses stated that the turn-row ran close to a bungalow built for Zack Taliaferro, somewhere on the 7 acres parcel of land.

J. H. Gould, a surveyor, made a survey of the west farm in 1953 in an attempt to establish a division line between that land and the land on the west side. He talked with a Mr. Gatlin who had also surveyed the land. One point he located was 183 feet east of the corresponding point located by Gatlin. E. A. Harris made a survey in 1936 and a blueprint of the map of that survey was introduced in evidence. It seems that one of the chief purposes of this survey was to determine the amount of cultivated land and not to establish boundary lines. Other maps and sketches of the west farm were introduced, but they contain no letters, figures, or markings to which the testimony is related, and therefore are of little assistance to us in arriving at the location of the boundary line in controversy.

Appellee and his wife testified that when they bought the east farm from Zaek Taliaferro in 1944. Zaek showed them the dividing line between the two farms and that they had occupied to that line ever since. They also stated that the line pointed out to them would, if extended south, run through the bungalow referred to above. Oscar N. Gatlin, an engineer and surveyor of considerable training and experience, made a survey to determine the true north and south line between the two farms. The description of the manner in which he established his beginning and reference corner sounds convincing at least. He stated that the line he established would, if extended south, run through the bungalow mentioned above.

In view of the lack of definite testimony in the record, we think the trial court was justified in finding that appellants failed to discharge the burden of proof which they assumed when they filed their complaint. In reaching this conclusion we rely to some extent upon the fact that the trial court had the opportunity to observe the witnesses while they testified and especially had the opportunity to correlate their testimony with the several exhibits, while we are denied these opportunities. Not only is this true, but the chancellor personally viewed the lands related to the disputed boundary line. In view of all this we cannot say that his findings and final determination are against the weight of the testimony.

Affirmed.

Harris, C. J., disqualified and not participating.


author: Sam RobiNsoN, Associate Justice. J. SeaborN Holt, J.,

text:
    Sloan v. Sears, Roebuck & Co.
    5-1393
    308 S. W. 2d 802
    Opinion delivered December 23, 1957.
    [Rehearing denied January 27, 1958.]

      James L. Sloan, pro se, Tom Gentry and Thorp Thomas, for appellant.

      Robert M. Wood, Atlanta, Ga.; Eichenbaum, Scott & Miller, for appellee; James M. McHaney, of Owens, McHaney, Lofton and McHaney, amicus curiae.

   Sam RobiNsoN, Associate Justice.

The appellee, Sears, Roebuck and Co., sold a garden tractor and four automobile tires to appellant, James L. Sloan. The price of the tractor was $295.58, including sales tax. Apparently a sales ticket was made out for that amount. The four tires came to $111.80; $20.00 was allowed on old tires traded in, leaving $91.80; federal tax of $4.36 was added to that amount, and a sales tax of $2.24, making a total for the tires, including tax, of $98.40. This amount, added to the price of the tractor, as shown on the face of the written contract, is ‘ ‘ Total Cash Price $393.98”. Added to that sum is what is designated as “Carrying Charge $37.17”, making a total of $431.15”. There was a cash payment of $40.00, leaving a balance of $391.15. This sum was payable in monthly installments of $22.00. The “Carrying Charge” amounts to more than 10 per cent per annum.

The issue is whether the transaction is usurious. The trial court held there was no usury, and Sloan has appealed. There does not appear to be any substantial dispute as to the facts.

It is appellee’s contention that our usury laws have no application to a sale of merchandise on credit; that such laws apply only to a loan of money and to an amount charged by a creditor for allowing additional time to pay a debt after it has become due.

Article 19, Section 13, of the Constitution of Arkansas of 1874 provides:

“All contracts for a greater rate of interest than ten percent per annum shall be void, as to principal and interest, and the General Assembly shall prohibit the same by law; * * *”

Pursuant to this constitutional directive, the very first year following the adoption of the 1874 Constitution, the General Assembly adopted Act 56 of 1875. It provides:

“SECTION 1 (Ark. Stat. § 68-602). The parties to any contract, whether the same be under seal or not, may agree in writing for the payment of interest not exceeding ten per centum per annum on money due or to become due.
“SECTION 2 (Ark. Stat. § 68-603). No person or corporation shall, directly or indirectly, take or receive in money, goods, things in action, or any other valuable thing, any greater snm or value for the loan or forbearance of money or goods, things in action, or any other valuable thing, than is in section one of this act prescribed.
“SECTION 3 (Ark. Stats. § 68-608). All bonds, hills, notes, assurances, conveyances, and all other contracts or securities whatever, whereupon or whereby there shall be reserved, taken or secured, or agreed to be taken or reserved, any greater sum, or greater value for the loan or forbearance of any money, goods, things in action, or any other valuable thing than is prescribed in this act, shall be void.”

Act 39 of the Acts of Arkansas of 1887 (Ark. Stat. § 68-609) provides:

“Every lien created or arising by mortgage, deed of trust or otherwise, on real or personal property, to secure the payment of a contract for a greater rate of interest than ten (10) per centum per annum, either directly or indirectly, and every conveyance made in furtherance of any such lien is void; and every such lien or conveyance may be cancelled and annulled at the suit of the maker of such usurious contract, or his vendees, assigns or creditors. * * #”

The constitutional interdiction that “all contracts for a greater rate of interest than ten percent per annum shall be void” is not limited to loans of money or to debts after they once become due. If that had been the intention of the framers of the Constitution, no doubt the wording would have been explicit in that regard and would have provided “no contract for the loan of money”, etc. It is clear that the Legislature did not construe Art. 19, § 13, of the Constitution as being so limited, because the aforementioned act of 1875, § 1 (Ark. Stat. § 68-602), provides that interest, not exceeding 10 per cent, may be charged on any contract “due or to become due”.

Appellee contends that “forbearance” means an extension of the time to pay a debt after it becomes due. Section 68-602, quoted above, settles the question of the meaning of forbearance. The statute provides: * * due or to become due.” “Forbearance” as used in the act simply means that the person to whom the money is owed waits for all or part of the money after the consummation of the contract in which the money is involved. The seller foregoes payment in cash and waits for all or part of his money. In the early case of German Bank v. DeShon, 41 Ark. 331, it is said:

“* * * ‘All contracts’ include bonds, bills, notes and all other contracts, verbal and written, whereby a rate of interest greater than ten per centum per annum is reserved, taken or secured, or agreed to be taken or reserved, as fully and completely as if they had been severally and particularly enumerated in the constitution and declared void.”

Over a considerable period of time this court approved contracts for the sale of merchandise where interest exceeded 10 per cent per annum. Finally, in 1952, there was decided the case of Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. There it was said:

“In a long line of cases, we have permitted the seller, under one guise or another, to do exactly what was done in the case at bar, and we have permitted the transferee of the paper to recover in just such a situation. Some of such cases are: Garst v. General Contract Purchase Corp., 211 Ark. 526, 201 S. W. 2d 757; Harper v. Futrell, 204 Ark. 822, 164 S. W. 2d 995, 143 A. L. R. 235; General Contract Purchase Corp. v. Holland, 196 Ark. 675, 119 S. W. 2d 535; Cheairs v. McDermott Motor Co., 175 Ark. 1126, 2 S. W. 2d 1111; Standard Motors v. Mitchell, 173 Ark. 875, 298 S. W. 1026, 57 A. L. R. 877; and Smith v. Kaufman, 145 Ark. 548, 224 S. W. 978.”

We then went on to say that the case had to be affirmed on the strength of the previous holdings, but added:

“Caveat. But the time has come when we must reexamine these holdings, so we now give the public a caveat that the effect of transactions, such as in the case at bar, may impinge on the constitutional mandate against usury, and transactions entered into after this appeal becomes final, may be subjected to the taint of usury with the aforementioned decisions affording no protection. * *

Following the Hare case, many cases arose involving the question of usury. In those cases where the contract was made prior to the decision in the Hare case, we have uniformly held that the rule announced in the old cases decided prior to the Hare case applied. Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S. W. 2d 551; Aunspaugh v. Murdock Acceptance Corp., 222 Ark. 141, 258 S. W. 2d 559; Perry v. Duncan, 222 Ark. 160, 258 S. W. 2d 560; Universal C. I. T. Credit Corp v. Grossley, 222 Ark. 200, 258 S. W. 2d 562; Murdock Acceptance Corp. v. Clift, 222 Ark. 313, 259 S. W. 2d 517; Pacific Finance Co. v. Tinsley, 222 Ark. 723, 262 S. W. 2d 282; Hoover v. Murdock Acceptance Corp., 223 Ark. 181, 264 S. W. 2d 838; General Contract Corp. v. Dodge, 223 Ark. 476, 266 S. W. 2d 816.

But in appeals where the transaction occurred subsequent to the Hare case, we have held that contracts providing for interest greater than 10 per cent per annum are controlled by Art. 19, § 13, of the Constitution and are void.

O’Brien v. Atlas Finance Co., 223 Ark. 176, 264 S. W. 2d 839, involved a transaction between a borrower and a lender of money. No sale was involved, and the Court was of the opinion that perhaps the Hare ease, which involved the sale of an automobile, could be construed as applying only to sales. In the O’Brien case we said:

“The caveat in the Hare case was not broad enough to apply to a transaction like the one in the case at bar; but the present caveat is to apply to all kinds of loans. * * *”

In the case at bar appellee contends that the caveat in the Hare case is not broad enough to apply to sales transactions.

In Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S. W. 2d 11, we held that the court erred in sustaining the finance company’s motion that the case he dismissed at the completion of plaintiff’s testimony. We held that according to the evidence introduced up to that point, Mrs. Thompson had made out a case of usury. Our decision was based on the fact that the evidence showed that more than 10 per cent per annum had been charged by the seller of the automobile. The fact that the note had been transferred to the Murdock Acceptance Corporation was not considered as material.

And in Public Loan Corp. of Fayetteville v. Peterson, 224 Ark. 22, 271 S. W. 2d 353, in speaking of the Hare, case we said:

# But there we overruled several earlier decisions which had sanctioned an artificial distinction between a cash sale and a credit sale. * * *”

The cases we overruled were mostly contracts for the sale of goods, wares and merchandise. See cases cited in Hare v. General Contract Purchase Corp., supra.

In Universal C. I. T. Credit Corp. v. Stanley, 225 Ark. 96, 279, S. W. 2d 556, it was held that a usurious rate of interest was charged on the balance owed on the purchase price of an automobile. It is true the seller had transferred the paper to a credit company, but there is nothing whatever in the opinion to indicate that the same transaction would not have been held usurious if the seller had kept the paper.

The facts and circumstances existing at the instant the contract is consummated determine whether it is usurious. The test is not whether the seller at a later date transfers the paper to a finance company.

General Contract Corp. v. Duke, 223 Ark. 938, 270 S. W. 2d 918, involved the sale of an automobile, and there we said:

‘ ‘ Our cases hold that the transaction is to be judged •at the time the contract is entered into, and not thereafter. * * *”

In Universal C. I. T. Credit Corp. v. Avery, 225 Ark. 190, 280 S. W. 2d 229, we said:

“The principal question in this case is whether a certain conditional sales contract, now attacked by the appellee for usury, was executed before or after the decision became final in Hare v. General Contract Purchase Corp., * * * That decision overruled a series of earlier cases but stated that the new rule would apply only to transactions entered into ‘after this opinion becomes final’. The contract now before us would have been valid under the theory that formerly prevailed but would be usurious and void under the doctrine announced in the Hare case. * * *” (emphasis supplied)

As heretofore pointed out, the cases overruled by the Hare case were mostly those in which a seller was allowed to add a sum in excess of 10 per cent to the sales price as a carrying charge, differential or interest, and had been held to be non-usurious.

In the very recent case of Holland v. C. T. Doan Buick Co., 228 Ark. 340, 307 S. W. 2d 538, it appeared that no finance company was involved. Doan sold the ear and financed the transaction himself. Perhaps he later sold the note to a bank, but the decision of this Court that the transaction was usurious was in no way based on the fact that a bank may have bought the note.

The Hare case and the many decisions of this Court since that case make it clear that credit sales as such, as distinguished from cash sales, have just about disappeared. In the Hare case it was said:

“Buying at a credit price, as distinguished from a cash price, has largely disappeared in fact, but is being used as a cloak for usury in many cases by such words as ‘time price differential’, or some other such language. * * * ”

This language in the Hare, case was quoted in Cunningham v. Chamblin, 227 Ark. 389, 299 S. W. 2d 89. Even in the old case of Ford v. Hancock, 36 Ark. 248, it is clearly stated that if a sale be really made on a cash estimate and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious. There can be no doubt about the sale in the case at bar being based on a cash estimate. Tickets were made out showing the cash price; the cash price was named in the contract ; and sales tax was paid only on the cash price.

Appellee contends that the caveat in the Hare case applies only to a transaction where a loan of money is involved and that it has no application between the seller and the buyer where a credit sale is involved, which is based on a cash price with an additional sum added as interest, differential, carrying charge, or whatever it may be called. But there have been several cases since the Hare case which clearly show that this Court has not construed the caveat in that case as applying only to transactions where a finance company is involved. Nor has the caveat been so construed by the public in general.

Following the Hare case an attempt was made to amend the Constitution. A petition containing the proposed amendment was widely circulated. Thousands of signatures were obtained thereto. It was proposed that the Constitution should be changed to provide: “Nor shall the difference between a cash sale price and an agreed upon time sale price be considered interest.” Undoubtedly it was considered by all interested persons that the Hare case was a warning that usury could be involved in the sale of merchandise on credit where an amount totalling more than 10 per cent per annum was added to the agreed cash price. The proposed amendment was not allowed to go on the ballot because of an insufficient ballot title. Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. In that case we said:

“Thus the proposed amendment has a two-fold purpose : (a) It would legalize service charges that have previously been regarded as usurious, and (b) it would legalize credit price differentials that have previously been regarded as usurious.”

It is hard to believe that anyone would consider that a loan of money was being referred to as “a credit price differential”.

In Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S. W. 2d 551, more than 10 per cent was charged on the balance dne on an antomobile. .We were nrged to recall the caveat in the Mare case, bnt we declined to do so and in effect reaffirmed the proposition that the cases cited in the Mare case conld not be relied on by merchants as authority for a charge of more than 10 per cent per annum for extending credit in the sale of merchandise.

In Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737, we said:

“This is a suit by the appellee to cancel an assert-edly usurious contract by which he bought a car from the appellant, an automobile dealer . * * *”

It appears that this was a transaction between the seller and the buyer only. No finance company or loaning agency was involved. The trial court held that a usurious charge had been made, and the decree was affirmed by this Court.

In Cunningham v. Chamblin, 227 Ark. 389, 299 S. W. 2d 89, Cunningham, the buyer, was an individual, and the seller was W. D. Chamblin, doing business as the Chamblin Sales Company. There the question of usury was involved. The court had rendered a decree for the defendant sales company on the theory that the plaintiff had not made out a case with his evidence in chief. We reversed, saying:

‘ ‘ When viewed in the manner required under the statute, the appellant’s proof was sufficient to make a prima facie case of usury and the cause should be reversed for further development * * *”

No finance company was involved; no loan of money was involved. There was the question of whether the seller of an automobile had charged more than 10 per cent on the deferred payments.

In Whiddon v. Universal C. I. T. Credit Corp., 227 Ark. 824, 301 S. W. 2d 567, the decree to the effect that a usurious rate of interest was not charged was allowed to stand because an honest mistake was made involving the premium on insurance. Although a finance company was involved, there is nothing in the opinion to indicate that the presence of the finance company in the case had anything to do with the outcome of the litigation. The case was decided in favor of the seller of the automobile solely on the ground that an honest mistake had been made.

Unfortunately, in the case at bar the seller happens to be a company bearing a splendid reputation for its dealings with the public; the amount of interest charged in excess of 10 per cent per annum, permitted by the Constitution, is not great, but if we should hold that this contract is not usurious, it would be a precedent by which all the sellers of merchandise of every kind and description could add any amount to the cash price as interest, carrying charge, differential or what not, that those whom the Constitution and statutes were designed to protect would of necessity agree to pay. And Art. 19, § 13, of the Constitution, prohibiting usury, would amount to nothing more than a scrap of paper. The quotation given by Judge Frank Smith in Byler v. State, 210 Ark. 790, 197 S. W. 2d 748, is peculiarly applicable:

‘‘It may be asked therefore, what difference it makes that this relationship existed * * * The answer is, ‘Twill be recorded for a precedent and many an error by the same example will rush into the state. It cannot be’.”

It is the duty of this Court to uphold the Constitution, and therefore we must reverse the judgment in this case, because the contract involved provides for a greater amount of interest than is allowed by the Constitution.

Appellee further contends that even if the contract is declared void, the title remains in the seller. We rejected this theory in Universal C. I. T. Credit Corp. v. Avery, 225 Ark. 190, 280 S. W. 2d 229, citing Universal C. I. T. Credit Corp. v. Stanley, 225 Ark. 96, 279 S. W. 2d 556. See, also, Ark. Stat. § 68-609.

Reversed.

Holt, J., dissents.

J. SeaborN Holt, J.,

dissenting. I am so firmly convinced that the undisputed facts in this case show that it was purely a bona fide credit sale, that both parties to the sales contract so understood and intended it, and made it in good faith — that I cannot bring myself to agree with the majority that usury was involved.

To constitute usury we are all agreed there must appear to be a charge of more than 10% for the loan or forbearance of money. The words “loan” and “forbearance” are not synonymous. Appellant concedes that there was no actual loan applied for or involved, either directly to appellant or through any third party or finance company, and the trial court so found. Therefore, if appellant is to prevail he must show that there was a usurious forbearance in the case at bar. “Usury is a corrupt agreement for more than the legal rate of interest on a loan of money, or for the forbearance of a debt * * * Therefore where the intention is not apparent, it is a question for the jury to determine whether it was a bona fide credit sale, or a device to cover usury,” Ford v. Hancock, 36 Ark. 248. Black’s Law Dictionary (4th Ed. 1951) defines Usury: “A profit greater than the lawful rate of interest, intentionally exacted as a bonus, for the forbearance of an existing indebtedness or a loan of money, * * * ” and defines Forbearance: “Act by which creditor waits for payment of a debt due him by debtor after it becomes due. * * * A delay in enforcing rights. * * * Indulgence granted to a debt- or. * * * Refraining from action. The term is used in this sense in general jurisprudence, in contradistinction to‘act’. * * * Within usury law, term signifies contractual obligation of lender or creditor to refrain, during-given period of time from requiring borrower or debtor to repay loan or debt then due and payable.”

Appellant is a practicing attorney, be knew wbat be was doing when be signed tbe contract in question. Ap-pellee is engaged in the selling of merchandise at retail, is not in the loan business, and there was no third party such as a loan agency or finance company involved here. As I see it, Sloan bought the merchandise purely on a credit sale, there was no pre-existing debt at the time of the transaction. The trial court found that the transaction was a bona fide sale on credit. I think the preponderance of the testimony supports that finding.

In each case, whether there was an intent to collect usury depends upon the facts. In our recent case Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, we said: “It is not usury for one who sells a piece of property on credit, to contract for a higher price than he would have sold it at for cash. If the intention be, in fact, to sell on credit, he has the right to fix a price greater than the cash price, with legal interest added; but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious. Therefore, where the intention is not apparent, it is a question for the jury to determine, whether it was a bona fide credit sale, or a device to cover usury. Tyler on Usury, 92. * * * (1) We leave unimpaired the doctrine that a seller may, in a bona fide transaction, increase the price to compensate for the risk that is involved in a credit sale. But there may be a question of fact as to whether the so-called credit price was bona fide as such, or only a cloak for usury. (2) If the seller, -whether he has quoted two prices to the purchaser or not, subsequently transfer the title documents to an individual or company which is engaged in the business of purchasing such documents, at a price which permits the transferee to obtain more than a return of 10% on its investment, then a question of fact arises as to whether the seller increased Ms cash price with the reasonable assurance that he could so discount the paper to such individual or finance company. If that reasonable assurance existed, then the transaction is in substance a loan, and may be attacked for usury. (3) When finance companies or purchasers of title paper supply dealers with a set of forms and a schedule for credit price increases, such will tend to show that the dealer had reasonable assurance that such finance company or purchaser of the paper would take the paper at such discount. ’ ’

As indicated, in the present case there is absent any loan or finance company, or any interested third party. What we said in Blake Brothers v. Askew & Brummett, 112 Ark. 514, 166 S. W. 965, announces the governing rule in this state and applies with equal force here. We there said: “Appellants also testify that they paid Askew and Brummett for goods which they purchased from them, a greater amount than 10 per cent added to the cash price of the goods. Askew & Brummett were retail dealers in merchandise, and sold goods mainly on a credit. It was the intention of the parties at the time the mortgage was executed that Askew & Brummett should furnish them with supplies, and that the goods should be sold on a credit. Askew & Brummett had a right to sell goods on a credit for a higher price than they would have sold them for cash. It is true that they sold them to appellants at a profit greater than 10 per cent over the price they were usually sold for cash, but there is nothing to show that this was done to evade the usury law. On the contrary, the evidence shows that it was done in good faith, for the purpose of making a profit on the goods sold. Ap-pellees testified that they sold the goods to appellants at the usual price they sold goods to their customers generally on a credit, and this statement is not denied by appellants. Therefore, there was no usury in this transaction. ’ ’

In the present case it appears undisputed that the credit terms offered Sloan were available to all customers and had been openly held out as available to customers for more than a score of years. I think'all the cases relied on by the majority are clearly distinguishable on the facts — all, in effect, involved an interested loaning agency or a third party. As indicated, here we are concerned only with the alleged usurious forbearance of money, which can only come into play when there is a pre-existing debt. While I feel certain of the soundness of my views, I feel doubly certain that scores of retail merchants throughout Arkansas are not only going to be surprised but shocked at the far reaching effect of the majority decision.

I would affirm the decree as not being against the preponderance of the evidence.


author: CarletoN Harris, Chief Justice.

text:
    Fagan Electric Company v. Green.
    5-1412
    308 S. W. 2d 810
    Opinion delivered January 13, 1958.

      8. Hubert Mayes, for appellant.

      Loohadoo, Gooch & Loohadoo, for appellee.
   CarletoN Harris, Chief Justice.

Roy L. Green, in the course of his employment with the Fagan Electric Company, received, on December 22, 1950, a compensa-ble injury. He was thereafter paid temporary total disability for a healing period of 55 weeks at $25.00 per week. At the conclusión of the healing period, it was determined that Oreen had a 20 per cent permanent partial disability to the body as a whole. This represented 90 weeks of compensation at $25.00 per week. This was paid to Green, and on September 28, 1953, when the last payment of $25.00 was tendered to him, he was requested to sign Form A-ll (which is a required form of receipt by the Commission). Green refused to sign, it being his contention that he was entitled to a greater percentage of disability. The ease thereafter was heard by one of the referees, and an opinion was rendered on September 19, 1955, in which the referee held there was no greater residual attributable to the accident of December 22, 1950, than the 20 per cent admitted by appellant. A timely appeal was taken by Green to the full Commission. Thereafter, on May 15, 1956, the Commission rendered its opinion, in which it sustained the original opinion of the referee, and denied any additional claims for compensation. Whereupon Green appealed to the Circuit Court of Hot Spring County. On April 2, 1957, the said Circuit Court rendered a judgment reversing the Workmen’s Compensation Commission, and directed that an award be entered compensating Green for permanent and total disability. From such judgment appellant brings this appeal.

Green’s injuries, occasioned by a tree falling on him, were rather severe, and included a fractured spine, a brain concussion, and a fractured wrist. Three operations were performed on the wrist alone, and he was hospitalized off and on for about a year, last hospitalization occurring in May of 1951, at which time there was an operation on his right arm. In August, 1952, he commenced work for the Arkadelphia Sand and Gravel Company (where he had previously been employed before working for Fagan Electric Company). His duties consisted of driving a locomotive engine from the plant to tlie river, a distance of about a balf mile each way, hauling gravel. Fred Wells, superintendent, stated this was light work, and he would not put Green on heavy work. He stated that Green was a willing and satisfactory worker, but somewhat irregular. In his words: “Just roughly, I’d say he would come down, maybe work this week, maybe next week lose two or three days of that week — just in and out that way.” In Wells’ opinion, Green’s condition was growing-worse. Green’s testimony as to his condition, briefly summarized, is as follows: It was approximately two years after the accident before he attempted to work at all. . . it is necessary that he stay busy, otherwise, he is like something “caged up”; . . . he is extremely nervous, and suffers constantly except when “my head and neck all goes to sleep” . . . his head hurts all the time, and he is unable to sleep ... he has to take sedatives ... he has “black out” spells . . . when his head would hurt, he would “go wild” and chew his tongue . . . that he now becomes irritated and angry easily; “Anytime anybody messes with me, I am mad, my wife, or anything else. If I go out to the porch, at times I have gone home from work, something or other, if a dog rears at me, it makes me mad, kill him right then. Whenever I get that way something hits me. Everything goes out. Maybe I have forgotten about the dog. Looks like a thousand lights hits my head.” He further testified that when he is not busy, he worries; that he will not travel by himself, and that the condition referred to came about after the accident; that prior thereto, he was entirely able bodied. Green’s wife corroborated much of this testimony.

Green’s medical evidence consisted of reports by Dr. F. Walter Carruthers of Little Rock, Dr. Frank Padberg of Little Rock, Dr. R. L. Bryant of Arkadelphia, and Dr. Joe Winston Reid of Arkadelphia. At the request of the Commission, Green was examined by Oschner’s Clinic in New Orleans, and the report of Dr. Homer Kirgis is favorable to Green. The reports are rather extensive, and can only be briefly summarized here. Dr. Carruthers’ report of October 16, 1953, sets out that Green is mentally disturbed, and

“* * * In all probabilities he had a fracture involving the base of his skull. * * * — these episodes of black outs, his angry spells, the chewing of his tongue all point to cerebral irritation. Certainly he has a mild form of the Jacksonian type of epilepsy. This is an epilepsy due to a physical condition following injuries to the brain. * * * I feel that his major aftermath complaints can be based entirely upon the craniocere-bral injury that he has rather than upon his general physical conditions that I have mentioned as being normal. In other words, the other fractures and injuries that he received apparently have healed, and he has recovered from those. On the other hand, his mental and physical debilities as the results of the head injury, certainly he has not recovered from that . * * *”

The report concludes by stating that it is his opinion that the general overall body disability amounts to a minimum of 30 to 35 per cent. Dr. Padberg’s findings, dated October 8, 1953, are based entirely on the patient’s history. He found Green to be “quite anxious,” and stated that he appeared to have some disturbance with recollection of dates. From the report:

“* * * His history of black out attacks accompanied by sphincteric disturbance as well as tongue biting episodes certainly sounds like he may have had some sort of major cerebral irritation to produce these attacks. * * *”

Dr. Bryant found:

“* * * My diagnosis from examinations and x-rays and treatment at the time was that this man was suffering from post-traumatic headaches; extreme nervousness; poor muscular coordination, as he was very unstable on his feet. He would be expected to have these post-traumatic headaches, with possibly a change in his personality, and to become emotionally unstable as a result of tbe injuries be received. Prognosis: I have not seen Mr. Green since February 18, 1952, and at that time my prognosis was ‘unfavorable.’ * * *”

Dr. Reid saw Green regularly over a period of five or six years, and submitted several reports. It was Ms opinion that Green’s symptoms and attacks were the results of the injuries received in 1950. On November 9, 1955, Dr. Reid stated:

“* # * j-jg not abie to work and in my opinion will not become any better. I believe his disability to be the end result of injuries received in 1950. I believe he will continue to become progressively worse. # * *”

Dr. Kirgis, in a report of October 9, 1954, stated:

“* * * This patient, undoubtedly, sustained a severe cerebral contusion and the present symptoms represent a residual of that injury. The extent to which the brain was damaged could be evaluated more satisfactorily if an electroencephalogram and a pneumo-encephalogram were made. In view of the occurrence of the ‘blacking out spells’, I think it is important that these tests be made. I doubt, however, that he will ever be able to perform work which requires any significant exertion or responsibility. * * *”

On December 23, a further report was mailed to the Commission by Dr. Kirgis, which concludes by stating:

“* * * The electro-encephalographic and the pneumo-encephalographic findings suggest that this patient has permanent organic damage to the brain. This, of course, was suggested by the clinical picture. I do not think his condition will change much from the present level. * * *”

The medical evidence on the part of appellant consisted of the reports of Dr. Fred Harris of Little Rock Dr. H. M. Nixon of Little Rock, Dr. Joe F. Shuffield of Little Rock, and Dr. Robert Watson of Little Rock. Dr. Harris’ report, dated July 26, 1952, concluded by finding:

“ * * * It is my opinion from the standpoint of the traumatic injuries, that healing was completed by December, 1951, or one year following his accident. This may be too liberal in time element. At present, it would be desirable to state definitely whether the head symptoms are the result of the injury to the brain or are the result of hypertension. I cannot definitely draw a conclusion here, because the present symptoms could all be explained on the basis of hypertension. Since high blood pressure is the result of pathological changes, it is my opinion that the existing hypertension is the result of pathological changes and not caused by his accident. In considering the permanent partial disability of the body as a whole, it is my opinion that it will not exceed 12 to 15 per cent, and this again may be liberal. * * * ”

Dr. Nixon’s report, dated January 25, 1952, concluded:

“* * * It is my opinion that Mr. Green’s healing period has ended, and from a bone or joint standpoint, I see no reason to further examine or treat him. From a bone and joint standpoint, it is my opinion that he has a permanent disability of 25 per cent of the body as a whole. * * *”

The report of Dr. Shuffield, dated July 10, 1952, finds:

<<# # « It is quite evident that the fractures that he had in his spine, which have been previously reported, have now healed solidly with very little deformity, * * * So far as this man’s disability resulting from his injury is concerned, apparently, it is not great. Certainly it could not exceed 20 per cent to the body as a whole. # * *”

Dr. Watson made several examinations of Green over a period of time, concluding such examinations on January 31, 1955, as reflected by his report of February 9, 1955.

“* * * This man has been working for the Arkadelphia Sand and Gravel Company for the past two years. In substance, he has many generalized complaints referable to his body. He states he feels ‘give out all over’. Also he describes smothering spells, and tells me he has a hurting sensation over his heart. When questioned pertaining to his neck and shoulder they ‘give him lots of trouble’. Also he tells me his left kidney ‘hurts’ a lot and that he has rheumatism in his bones and joints.
On examination this man gets around in active agile fashion. He bends well in undressing, but later, when it is obvious that such movements are coming under the direct observation of the examiner, these movements of his back are then quite limited. * • *
Throughout the whole of the neurological examination this man continued to complain unceasingly in respect to some part of his body, first one part and then the other. * * *
All along this man has had a disturbingly high blood pressure and even back in 1951, a diagnosis of hypertensive heart disease with aortic insufficiency was made. His blood pressure has always been too high, particularly his diastolic reading. On many occasions back in 1950, reading such as 180/ 120, 190/110, 170/120, 210/120, and even at the time of this present examination, the man’s blood pressure was 200/130.
In evaluating this man, one must draw definite distinction between those symptoms which are residuals from his injury and those symptoms which are due to the progressively increasing high blood pressure this man possesses.
Back in 1952, in July, it was concluded that these complaints referable to headache, feeling of fullness in the head, impaired hearing on the left, and whatever complaints of backache he might possess, were logical and acceptable and very likely the result of the trauma he experienced in 1950, and for that reason he was given an estimate of 20 per cent permanent residual disability affecting the body as a whole. On the other hand, these complaints of ‘black out spells, crazy drunk spells in the head’, and other such subjective complaints are definitely a picture so frequently seen in situations of hypertension with associated cerebral vascular involvements.
In comparing his present picture with that back in 1952, one cannot demonstrate any basis for now increasing his estimate of residual disability that would be based on actual progression of disability due to his earlier trauma. Whatever progression he now has is a part of his advancing picture of cerebral arteriosis and a generalized increase in his picture of hypertension.”

It might be pointed out also that the report from Dr. Kirgis showed Green’s blood pressure 200/120. Dr. Reid concurred in a report dated August 9, 1955, by saying, “His blood pressure continues to range from high normal to an extremely high pressure.” The Commission found that “* * * claimant herein, by reason of the compensable accidental injury sustained December 22, 1950, suffers residual permanent partial disability of 20 per cent to the body as a whole. * * *” This finding was largely based upon the statements of Dr. Watson. The Commission said:

“ * * * we believe the statements of Dr. Robert Watson, a neurosurgeon who examined claimant shortly after his injury and on several other occasions thereafter, resolves any doubt which might be created by other medical evidence. Dr. Watson attributes claimant’s present disability in excess of 20 per cent to the body as a whole to hypertension resulting from pathological changes not associated with claimant’s injury. The same pathological changes are described in the reports of other competent medical authority. * # * ”

Tlie only question before this Court is whether there was substantial evidence to support the finding of the Commission. As was said in Hughes v. Tapley, Administratrix, 206 Ark. 739, 177 S. W. 2d 429:

“* * * ipkg rilie is well established, under the Workmen’s Compensation Act that ‘Findings of fact made by the Workmen’s Compensation Commission are, on appeal, given the same verity as attach to the verdict of a jury’, and this applies on appeal to the Circuit Court as well as to the Supreme Court from the Circuit Court. * * *”

In the same case it was also said:

“* * * The rule is also well settled that in testing the sufficiency of the evidence before the Commission, the Circuit Court, on appeal from the Commission, and this Court, on appeal from the Circuit Court, must weigh the testimony in its strongest light, in favor of the Commission’s findings. * * *”

Both holdings have been reiterated numerous times, and such is recognized as well settled law in this state. Ap-pellee points out that Dr. Watson was the only one of appellant’s witnesses to examine Green after September 28, 1953, while examinations by appellee’s medical witnesses were made subsequent to that time. This fact, of course, merely goes to the weight of the evidence, and was due to be considered, along with all other circumstances, in reaching conclusions. As far as we know, this fact was considered. Obviously, appellee made rather a strong case, but though we had the inclination to do so, we are completely without authority to overturn the ruling of the Commission if there is substantial evidence to sustain same.

Here, the evidence was rather conflicting, but clearly both sides presented evidence of a substantial nature. Such evidence included (from both sides) statements of doctors who are widely recognized. It was simply a matter of which evidence proved more persuasive to the Commission. For this Court to hold con-ti-ary to the findings of the Commission, would be merely to substitute onr judgment for theirs. We are not a jury, and as stated in H. C. Price Construction Company v. Southern, 216 Ark. 113, 224 S. W. 2d 358: “* * * It is immaterial that we might reach a different conclusion if permitted to try the case anew. * # # J ?

Accordingly, the judgment of the Hot Spring Circuit Court is reversed, and the cause is remanded with directions to enter judgment affirming the findings of the Commission.

       Works eight or nine hours a day during the week at an hourly wage of 80$.

       A Plymouth automobile with the wheels changed.


author: J. SeaborN Holt, Associate Justice.

text:
    Scifres v. State.
    4888
    308 S. W. 2d 815
    Opinion delivered January 13, 1958.

      C. T. Sims and D. A. Clarke., for appellant.

      Bruce Bennett, Atty. General; Thorp Thomas, Asst. Atty. General, for appellee.
   J. SeaborN Holt, Associate Justice.

Appellant, A. D. Scifres, by information was charged with the crime of robbery. Trial resulted in a verdict of guilty and tbe jury fixed Ms punishment at a term of three years in the penitentiary. This appeal followed.

For reversal appellant has brought forward 19 assignments of alleged errors. In assignments 16, 17 and 18 he, in effect, challenges the sufficiency of the testimony. The testimony shows that on May 28, 1957, Scifres and the victim of the robbery, Oscar Hunsaker, had been together in Little Eock and later in the afternoon returned to Pine Bluff, where Hunsaker left Scifres and went on to his home in Star City. Appellant and an accomplice, Charles Hackney, in appellant’s truck went from Pine Bluff to Dumas to sell some vegetables. Scifres had on occasion borrowed money from Hunsaker and knew that he had a substantial amount of money with him on that day. In company with Hackney, Scifres went to Hunsaker’s home (at about 9 p.m.) called him to his front door, struck him over the head, knocked him down and took his wallet which contained about $285. Both Hackney and appellant later admitted the robbery but each accused the other of actually talcing the money. On the above brief statement of material facts, we hold the evidence ample to convict appellant.

By assignments 1 and 2 error is alleged in the refusal of the trial court to excuse veniremen McLemore and Russ. On voir dire McLemore testified that he had served as a peace officer, and when asked by the court if he were prejudiced against people accused of crime, he replied: “Well, to some extent.” After further questioning, however, he said in effect that he would lay aside any prejudice and try the case on the law and the evidence. In similar situations we have held the juror qualified. See Lewis and Wren v. State, 220 Ark. 914, 251 S. W. 2d 490 and Buchanan v. State, 214 Ark. 835, 218 S. W. 2d 700. We hold, therefore, that there was no abuse of the court’s discretion in holding this juror qualified in the circumstances.

The other venireman, Russ, — a Negro who had reached the 7th grade in school, — was challenged by the appellant on the ground that he lacked sufficient education to understand or comprehend the court’s instructions. Specifically he based this contention on the following: “Q. Can you define . . . the words bias and prejudice? A. You have something within you against. Q. Can you define . . . the word duress. A. No, sir. Q. Can you define . . . the word intimidation? A. I am sorry. Q. You have no idea? A. No, sir, why I wouldn’t express. Q. Can you define . . . presumption of innocence. . .? A. That he is not guilty. Q. Can you define . . . present ability. A. I am sorry.” Also on certain answers given by Russ (Appellant’s abstract): “I have lived northeast of town about twenty years. I have not had any experience that would cause me to be prejudiced against the crime of robbery. No, I would not be prejudiced if evidence shows defendant drank liquor to excess. No. I do not drink. I have never sat on a jury before. I am 49 years old. If some reasonable doubt as to guilt existed in my mind I would acquit Mr. Scifres. I would follow the testimony and law and would follow my own opinion.”

We find no atrase of the court’s discretion in declaring Buss qualified when reasonable tests as to qualifications were applied, as here. The text writer in 31 Am. Jur., Jury, Sec. 131 used this language: “. . . It is not necessary, of course, that a juror should he a scholar and understand the definition of every word used in the course of a trial by witnesses, counsel, and the court. It is sufficient if he is conversant with the language to the extent that he can understand in substance the testimony of witnesses and the argument of counsel. An objection based on a juror’s supposedly imperfect knowledge of English is one addressed to the judgment of the trial court, and unless flagrant abuse of discretion clearly appears, the court’s ruling thereon is seldom disturbed . . .” We said in Montaque v. State, 219 Ark. 385, 242 S. W. 2d 697: “Jurors must be presumed to possess the qualifications required under Sec. 39-208 and 39-206 of the statutes (Ark. Stats. 1947) and that is ‘persons of good character, of approved integrity, sound judgment, and reasonable information’.” The Supreme Court of the United States in the case of The Sioux City S Pac. RR Co. v. Harry G. Stout, (1873) 17 Wall 657, 21 L. Ed. 745, set out what it termed to be the complexion and general qualifications of the members of the ideal jury under our jury trial system: “Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring, than can a single judge.”

In Assignments 4, 5, 6 and 7 Scifres contends that the court erred in permitting the prosecuting attorney to question him about prior convictions. It appears undisputed that appellant was interrogated on Ms cross-examination only as to prior convictions except in one instance when he was asked if he had ever been arrested for grand larceny in Mississippi, but he was not permitted to answer this latter question, on instruction by the court. These questions were proper as going to his credibility as a witness, and the court so limited it. See Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650.

In Assignments 8, 9, 10, 11, 12, 13 and 15 appellant argues that the court erred in giving instructions 1, 2, 3, 4, 5, 6 and 8. In assignment 14 Scifres specifically objected to instruction 7 on the ground that larceny is not included in robbery. The record reflects that only a general objection was made to all of the above instructions with the exception of No. 7. Upon examination we do not find that any of these instructions, to which only a general objection was made, was inherently wrong. It was appellant’s duty to point out to the court, by a specific objection, any evil or error in these instructions in order to afford the court an opportunity to make corrections if necessary. TMs he failed to do, as indicated, in all but No. 7, to which he specifically objected on the ground that larceny did not include robbery. Instruction 7 provided: “Every person who shall for his own gain, or to prevent the owner from again possessing his property, buy or receive (any stolen goods, or anything the stealing of which is declared to be larceny, or) property obtained by robbery or burglary, knowing the same to have been so obtained, shall upon conviction be punished as in cases of larceny. ’ ’ The answer to this contention of appellant is, that larceny is included in the crime of robbery. See Haley v. State, 49 Ark. 147, 4 S. W. 746, and Cook v. State, 130 Ark. 90, 196 S. W. 922. We hold, therefore, that instruction 7 was correct.

In Assignments 3 and 19 appellant contends that the court erred in permitting the prosecuting attorney to attempt to impeach him by reading his prior alleged inconsistent statement and further erred in failing to require the introduction of appellant’s original confession. In answer it suffices to say, it has long been the rule in this state that a witness may be impeached by showing that he has made prior inconsistent statements. See Sec. 28-707, Ark. Stats. 1947; Hamm v. State, 214 Ark. 171, 214 S. W. 2d 917, Comer v. State, 222 Ark. 156, 257 S. W. 2d 564; Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473. Appellant’s objection that the original confession was not introduced in evidence is not supported by the record. The record reflects that appellant’s statement or confession was introduced in evidence without objection. It is, therefore, too late for appellant to complain at this time. See Jenkins v. State, 222 Ark. 511, 261 S. W. 2d 784.

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Chapman v. Deer.
    5-1414
    308 S. W. 2d 818
    Opinion delivered January 13, 1958.

      Gordon and Gordon, for appellant.

      Brasil and Brasil and John G. Moore, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This appeal comes from an unsuccessful attempt by the appellants to set aside a deed on the claim that the grantor lacked mental capacity. The appellants (plaintiffs below) are heirs of the grantor: the appellees (defendants below) are heirs of the grantee.

On March 14, 1955 Ed Doyle executed the warranty deed here questioned, which conveyed a track of 80 acres to his niece, Margaret Deer. The recited consideration was $1.00 and love and affection. Mr. Doyle was then 87 years of age and suffering from cancer. Margaret Deer died intestate in the early part of 1956. In April 1956 Mrs. Twila Chapman was appointed guardian of her father, Ed Doyle; and filed this suit against Margaret Deer’s heirs to set aside the deed. Mr. Doyle died intestate on August 1, 1956; and the plaintiffs’ cause of action was revived by his heirs at law. The case was heard by the Chancery Court on depositions and evidence ore terms; and resulted in a decree denying plaintiffs the prayed relief. In this Court the appellants state the issue as follows: “It is the sole contention of the appellants that Ed Doyle did not have sufficient mental capacity to execute a deed at the time the deed in question was executed, and that the Chancery Court erred in dismissing the complaint for want of equity”.

A vast array of witnesses testified for each side. It was shown that in early March 1955 Ed Doyle was 87 years of age and suffering from arteriosclerosis; that his eyesight was somewhat impaired; that he did not recognize old friends; that he would wander in his conversations; that at times he thought someone was trying to do him bodily harm; that some of his friends and family considered him absolutely incompetent; and that others merely said that they would not want him attending to any business for them. In early March 1955, his physician, Dr. Grutowski, suspected that Mr. Doyle was suffering from cancer of the jawbone, and arranged to send him to Little Rock for examination. A few days before he left for Little Rock, Mr. Doyle executed the deed in question. In Little Rock the cancer diagnosis was confirmed. Mr. Doyle was in a rest home for a short time, returned to his home near Per-ryville, and’ died intestate on August 1, 1956.

The vital question is whether Mr. Doyle was mentally competent to execute the deed on March 14, 1955. The accepted test of competency in a case like this one was clearly stated by Justice Hart in Bilyeu v. Wood, 169 Ark. 1181, 278 S. W. 48:

“To invalidate a deed on the ground of the grantor’s mental incapacity, the proof must show that the grantor was incapacitated from intelligently comprehending and acting upon the affair out of which the transaction grew, and that he did not intelligently understand and comprehend the nature and consequences of his act. In other words, the mental capacity at the time of signing a deed sufficient to comprehend the nature of the transaction is the standard fixed by the law for determining the mental competency of the person signing the deed. Kelly’s Heirs v. McGuire, 15 Ark. 555; Pulaski County v. Hill, 97 Ark. 450; McEvoy v. Tucker, 115 Ark. 430; and Reaves v. Davidson, 129 Ark. 88.”

Again, in McEvoy v. Tucker, 115 Ark. 430, 171 S. W. 888, Justice Frank G. Smith quoted from Justice Riddick’s language in Seawel v. Dirst, 70 Ark. 166, 66 S. W. 1058:

“ ‘It follows, therefore, that the proof which is designed to invalidate a man’s deed or contract on the ground of insanity must show inability to exercise a reasonable judgment in regard to the matter involved in the conveyance ... To that effect (i. e. to invalidate the deed) the insanity must be such as to disqualify him from intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his act.’ ”

Measured by the test of the quoted cases, and the evidence now to be mentioned, we cannot say that the Chancery decree is erroneous. Both of the doctors who testified for the plaintiffs (appellants) admitted that a person in Mr. Doyle’s condition in March 1955 could have had intervals of competency. Dr. Gullett testified: “He would have bad periods of time when he would be more or less lucid . . . it is possible that he could have been lucid during a period in there”. Dr. Gutow-sld testified: “At times he might know, and then at other times he might not know about it”. Thus, even according to plaintiffs’ doctors, it was possible for Ed Doyle to have executed a valid instrument on March 14, 1955.

It was shown that Mr. Doyle’s sister and his niece, Margaret Deer, had lived with him and taken care of him since 1946; that he owned in excess of 220 acres; that on March 14, 1955 he went to Perryville and paid his taxes; that he went, alone, from the courthouse to the office of W. E. Jones, an abstracter; that Mr. Doyle selected from the other lands on his tax receipt the particular eighty acres that he decided to convey to his niece, Margaret Deer; and that he stated the consideration was love and affection. Mr. Jones was also a Notary Public, and a former County Clerk of Perry County. He testified he had known Mr. Doyle quite well since 1922 and had made loans for him; that on March 14, 1955, Mr. Doyle, alone and unaccompanied, entered Mr. Jones’ office; that Mr. Doyle gave the instructions for the preparation of the deed and signed and acknowledged it before Mr. Jones; and that Mr. Doyle was entirely competent at that time.

Further, it was shown by the witness, S. V. Gullett, that in July 1955, after Mr. Doyle returned from Little Rock, where the cancer diagnosis had been confirmed, Mr. Doyle heard that some of his children might attack the validity of the deed he had made to Margaret Deer; and that Mr. Doyle made two visits at several weeks interval to the law firm of Brazil and Brazil to arrange for them to defend the title of Margaret Deer, should any of the Ed Doyle heirs subsequently attack the deed in court.

We have sketched the testimony in considerable detail because it possesses certain ingredients which clearly demonstrate that Mr. Doyle was competent to execute the deed on March 14, 1955; that he retained in his mind tlie fact that he had executed the deed; and that he undertook to arrange to have its validity defended. The rules of law are well understood: the problem is the weighing of the evidence in the light of such rules. We hold that the Chancellor was correct in dismissing the complaint.

Affirmed.


author: MiNok W. Millwee, Associate Justice.

text:
    Flippin v. McCabe.
    5-1438
    308 S. W. 2d 824
    Opinion delivered January 13, 1958.

      H. J. Denton and Jennie F. Pond, for appellant.

      Thomas B. Tinnon, for appellee.
   MiNok W. Millwee, Associate Justice.

Appellants filed this suit on February 4, 1957, to abate a private nuisance allegedly resulting from the operation of a battery of four charcoal kilns by appellees near the town of Cotter, Arkansas. On February 5, 1957, appellees filed a motion for continuance of a hearing on appellants’ motion for a temporary restraining order which had been originally set for February 7, 1957, and said hearing was continued by agreement of the parties until February 13, 1957. Following such hearing a temporary order was entered restraining the operation of three of the kilns but permitting the operation of one of them pending a further hearing on the merits set for March 6, 1957.

At the conclusion of the final hearing the chancellor filed an opinion as a basis for a decree enjoining appellees from operating any of the kilns during the period from December 15 to March 15, and further restraining them from operating more than two of said kilns at any one time during the other nine months of the year. The court retained jurisdiction for the purpose of modification or vacation of the decree upon proper showing of a change in circumstances warranting such action.

In the written opinion the chancellor found as follows: “That the defendants, T. J. McCabe and Charles Kelley, erected four charcoal kilns upon a tract of land near the town of Cotter, in Baxter County, Arkansas, and near United States Highway 62, and that they started producing charcoal from said kilns about the first of January, 1957; that in the process of converting the green hardwood into charcoal there was involved a burning of the green wood under controlled conditions as to draft and other factors, and this process resulted in a large amount of smoke and volatile vapors being discharged from the kilns into the air; that the petitioners live in the vicinity near said charcoal kilns, and the smoke and volatile vapors discharged from said kilns frequently enveloped the atmosphere about the homes of the various petitioners and caused serious and substantial discomfort and annoyance to the petitioners; that after the preliminary order was entered closing all but one of the charcoal kilns, some discomfort and annoyance from smoke and vapors emanating from the one kiln was experienced by the petitioners, but the degree of annoyance and discomfort was not as great as had been previously experienced.

“The Court finds that the smoke and vapor from the kilns tends to settle and remain near the surface of the ground during cloudy, damp and overcast weather conditions and that when the weather is fair and the air is light, there is a tendency for the smoke and vapors to dissipate with little or no discomfort to the people living in the vicinity of the kilns. The Court takes judicial notice of the fact that the period of year beginning with December 15, and ending March 15 is ordinarily attended with considerable cloudy and overcast weather and that the air during such period is quite often heavy and damp.

“The Court finds that these charcoal kilns cannot satisfactorily be operated under present known or proposed operating conditions without resulting in actual and substantial physical discomfort and annoyance to the petitioners during the period from December 15, to March 15, both dates inclusive. The Court believes and finds, however, that during the remainder of the year the kilns can be operated without substantial physical discomfort or annoyance to the petitioners, provided that not more than two of the kilns are permitted to be burning at any one time. The Court finds that the operation of the kilns from December 15 to March 15, inclusive, constitutes a private puisance in violation of the rights of the petitioners, and therefore, same should be restrained and abated during said period of time; and that the operation of the kilns during the remainder of the year shall be a private nuisance to the petitioners, unless such operation is restricted so that only two of the kilns shall be permitted to burn at any one time.”

For reversal of the decree based on said findings appellants first contend the court erred in denying their motion for default judgment because of appellees failure to answer within the time required by Sec. 2 of Act 49 of 1955 (Ark. Stats. Sec. 27-1135). It is true that in Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 432, we held the act mandatory in its requirement that the “defense” to a complaint be filed within 20 days after service of summons. But we have refused to construe the word “defense” as being limited to an answer going to the merits. Thus in West v. Page, 228 Ark. 13, 305 S. W. 2d 336, we held that a motion to transfer to law constituted a defense to a complaint within the meaning of the statute. In the instant case appellees filed a motion for continuance the day following service of summons when the parties agreed in writing to a continuance until February 13, 1957, when the cause proceeded to a hearing on appellants’ application for a temporary order without protest. There was also testimony to the effect that appellees actually filed their “response” to the petition of appellants on February 13, 1957, but the clerk neglected to make proper notation of such filing. Under these circumstances we cannot say the chancellor erred in refusing to render default judgment against ap-pellees on March 6, 1957.

Appellants also argue the chancellor erred in failing to declare the operation of all four kilns at any time a nuisance which should be abated. This presents a difficult factual issue. Anything that materially and substantially lessens or destroys the use and enjoyment of one’s homestead constitutes a nuisance. Junction City Lumber Co. v. Sharp, 92 Ark. 538, 123 S. W. 370. In numerous cases of this kind we have approved the following statement from the early case of Ross v. Butler, 19 N. J. Eq. 294: “The law takes care that a lawful and useful business shall not be put a stop to on account of every trifling or imaginary annoyance, such as may offend the taste or disturb the nerves of a fastidious or overrefined person. But, on the other hand, it does not allow any one, whatever his circumstances or conditions may be, to be driven from his home, or to be compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity.” See also, Durfey v. Thalheimer, 85 Ark. 544, 109 S. W. 519; Terrell v. Wright, 87 Ark. 213, 112 S. W. 211; Thiel v. Cernin, 224 Ark. 854, 276 S. W. 2d 677. The usual rule applied in cases like this is that if the plant involved is not a nuisance per se, then the injunction should not restrain the entire operation of the plant, but only that part of the operation that created the nuisance. Ozark Bi-Products, Inc. v. Bohannon, 224 Ark. 17, 271 S. W. 2d 354.

Where the thing complained of is not a nuisance per se, the burden is upon the complaining party to show that it is a nuisance in fact by clear and satisfactory evidence. Lonoke v. Chicago R. I. and P. Ry. Co., 92 Ark. 546, 123 S. W. 395. The testimony of the numerous Avitnesses who testified on this question in the case at bar is highly conflicting and pretty evenly balanced. The eleven appellants live within distances ranging from 306 to 1106 feet of the kilns in question. Some of the appellants and others in their behalf testified that the smoke and vapor from the kilns had an unpleasant and offensive odor, burned or irritated the nose or throat, interfered with sleep and Avas annoying. Other residents and employees in the area and others Avho resided much closer to other plants identically operated testified just to the contrary and stated that the smoke and vapors were non-irritating, inoffensive, harmless and the odors in fact pleasant. Under this highly conflicting evidence we cannot say the chancellor’s findings are against the preponderance of the evidence. Appellants are of course free at any time to move for modification of the injunction upon proper showing.

Nor do we agree with appellants’ further contention that the court erred in admitting testimony regarding the effects of similar, if not identical, operations of other charcoal kilns in North Arkansas and South Missouri. The kilns involved here had only been in operation about a month when this suit was filed and we are unwilling to say that evidence of the experience of others in similar operations in nearby communities is without probative value. See Falcon Zinc Company v. Flippin, 171 Ark. 1151, 287 S. W. 394, where similar proof was held competent on the question whether it was possible to operate a smelter without certain alleged injuries to plaintiff’s farm.

The decree is affirmed.


author: G-eoege Rose Smith, J.

text:
    State ex rel. Hebert, Prosecuting Attorney v. Hall, Secretary of State.
    5-1429
    308 S. W. 2d 828
    Opinion delivered January 13, 1958.

      Q. Byrum Hurst and Virginia H. Ham, for appellant.

      Bruce Bennett, Atty. General; Roy Finch, Jr., Chief Asst. Atty. General, for appellee.
   G-eoege Rose Smith, J.

House Bill No. 268 of the 1957 G-eneral Assembly, purporting to change the method of selecting jury commissioners in the eighteenth judicial circuit, was vetoed by the Governor two weeks after the legislature had adjourned. This suit was brought by the prosecuting attorney for a decree declaring the attempted veto to have been ineffective and for a writ of mandamus requiring the Secretary of State to enroll the measure as a valid act. It is the plaintiff’s theory that when the legislature adjourned the bill in question had already remained with the Governor for a sufficient time to become a law without his approval. The chancellor upheld the Governor’s veto and accordingly dismissed the complaint.

Article 6, § 15, of the Constitution reads in part: “If any bill shall not be returned by the Governor within five days, Sunday excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State and give notice thereof by public proclamation within twenty days after such adjournment.”

The decisive question is whether the specified period of five days elapsed between the presentation of this bill to the Governor and the subsequent adjournment of the General Assembly. The Governor’s receipt for the bill shows that it was received by him at 3:27 p.m. on Friday, March 8, which sufficiently establishes this fact. Whaley v. Independence County, 212 Ark. 320, 205 S. W. 2d 861. The legislature adjourned at noon on Thursday, March 14, without any action on the bill having been taken by the Governor.

On these facts the bill did not become a law by reason of the Governor’s failure to return it before the legislative adjournment. It is the settled rule in this state that in the computation of time the first day is to be excluded and the last day included. Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491; State v. Hunter, 134 Ark. 443, 204 S. W. 308. This method of caleu-lation is not restricted to the field of statutory construction; it has also been followed in the interpretation of the Constitution. Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72. In the case at bar we must therefore disregard Friday, March 8, the day on which the Governor received the bill. He was accordingly entitled to act on the measure within the ensuing five days, Sunday excepted, which were Saturday, Monday, Tuesday, Wednesday, and Thursday. Since the legislature adjourned at noon on the fifth day the bill had not yet become a law, and the Governor’s veto power was therefore extended by the terms of the Constitution.

Affirmed.


text:
    Knight & Johnson v. State.
    4877
    308 S. W. 2d 821
    Opinion delivered January 13, 1958.

      John F. Gibson, for Appellant Knight; Clifto'n Bond, for appellant Johnson.

      Bruce Bennett, Atty. General; Roy Finch, Jr., Chief Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

On September 30, 1956, at approximately 3:30 A.M., James Harper’s Pan Am Service Station at Warren, Arkansas, was entered and a cash register valued at approximately $300, containing about $35, was taken, and the cash register was thrown in the Saline River near Warren. Calvin Mc-G-ehee, age 21, Jerry Lawrence, age 18, J. C. Adams, age 18, and Rudolph Herrod, age 18, all of Warren, Arkansas, entered pleas of guilty to entering the station and taking the cash register and money. They stated that appellant Terrell Y. Johnson, who was an employee of the burglarized station, had previously given Calvin McGehee a key to the side door of the station for the purpose of entering the station. They stated that appellant Ray Knight, an ex-policeman of Warren, had conferred with and encouraged them, to commit the crime, allegedly, in an effort to embarrass the city police officers.

On February 4,1957 appellants, Knight and Johnson, were indicted for the crime of burglary and grand larceny in connection with the above described incident, and on February 8, 1957 they were tried jointly, and convicted as charged. Knight was sentenced to 5 years in the penitentiary and Johnson was sentenced to 2 years in the penitentiary. They prosecute this appeal from said convictions and sentences.

The two appellants are represented by different attorneys and they have filed separate briefs in which they rely upon somewhat different grounds for a reversal.

Knight relies upon three separate grounds, in his brief, which we now discuss in the order named.

One. Appellant contends that it was error for the court to refuse to direct a verdict of not guilty at the close of the State’s testimony. In support of this contention appellant says there is no corroborating testimony of the accomplices and, also, that the trial court failed to properly instruct the jury during process of the trial. We do not agree with either of appellant’s contentions.

As pointed out by appellant, Ark. Stats. § 43-2116 provides that a conviction can not be based upon the testimony of an accomplice unless corroborated by other evidence “tending to connect the defendant (Knight) with the commission of the offense.” We agree, as also pointed out by appellant, that mere suspicion does not meet the test above set forth. See Bright v. State, 212 Ark. 852, 208 S. W. 2d 168. We have consistently held that the sufficiency of the corroborating testimony in such instances is a matter for the jury to decide. See: Kennedy v. State, 115 Ark. 480, 171 S. W. 878; Mankey v. State, 192 Ark. 901, 96 S. W. 2d 463; and McClure v. State, 214 Ark. 159, 215 S. W. 2d 524. After a careful review of the record we are convinced that there is substantial corroborative testimony to support the verdict of guilty by the jury. James Harper, the owner of the filling station, said Knight came to him voluntarily and offered to take him to where the cash register was for the $100 reward which had been offered for its return. A State Policeman said Knight told him and the sheriff about two weeks after the burglary who had committed the crime. The sheriff said that the next day after the burglary Knight told him he was under the bridge when the boys threw the cash register in the river and he knew who did it. Later Knight told the sheriff he talked with some of the boys at the Economy Station (near the burglarized station) about the burglary and knew they were going to commit the theft, and, according to the sheriff, Knight admitted the boys later told him what they had done. The above testimony was, we think, substantial corroboration as required by the rules announced by our decisions.

Appellant says the trial court improperly instructed the jury regarding the amount of corroboration necessary. When Calvin McG-ehee was asked whether Knight had anything to do with the burglary, the court was asked to tell the jury that the witness was an accomplice and that his testimony could be considered only as such in accordance with later instructions. The court did, at that time, so instruct the jury, but in doing so he said “there must be some fact, some evidence, however, slight, to connect the defendant with the commission of the crime outside of the evidence of the accomplice”. Appellant objects to the words, “however slight,” used above. Even if it be conceded that these words were used inadvisedly, still we think any possible error was cured and any possible prejudice was erased by proper instructions later given by the court. The words above mentioned were used by the trial court during the trial of the case and were not intended as an instruction to the jury. The statement of explanation was made by the court to the jury at the request of the defendant. If appellant objected to any particular words used by the court, he should have pointed them out at the time. This he failed to do, and cannot now be heard to complain.

Two. Harper was asked by the State if he received any money from any of the accused by way of restitution, and in replying in the affirmative he mentioned appellant’s name. The witness was immediately interrupted by an objection on bebalf of the appellant. Thereupon the court cautioned the jury to disregard the testimony. The court also asked the jurors if they could do that and all of them held up their hands to indicate they could. From this it is hard to see how any prejudice could have resulted to appellant. Moreover, appellant is in no position to urge a reversal on this ground because it was not brought forward in his motion for a new trial.

Three. Finally it is contended that the court committed reversible error in allowing the introduction of certain testimony relative to crimes committed by appellant, or within his knowledge. When a question of this nature was asked of Jerry Lawrence, an objection was immediately interposed. Thereupon the court limited the testimony to “a scheme between this ex-officer or officer at the time and these young men.” After this the witness was allowed to say he and appellant, with some of the other boys, had siphoned gas out of cars. Again we are not called upon to- decide whether the above testimony was erroneously admitted, because no such contention was brought forward in the motion for a new trial.

We have considered other assignments of error mentioned in the motion for a new trial, including a general objection to the instructions, but find no reversible error. Therefore the case is affirmed as to appellant, Ray Knight.

Johnson seeks a reversal on four separate grounds set forth in his brief but we deem it unnecessary to discuss all of them, because we have concluded the case must be reversed and remanded for a new trial, as to him, on a combination of two of the grounds.

It is not contended by the State that Johnson was present when the robbery occurred, or that he even knew it was going to take place. His conviction rests solely upon the testimony of an accomplice, Calvin Mc-G-ehee, to the effect that Johnson gave him a key to the filling station, and upon certain alleged admissions, to the same effect, made by appellant to the sheriff. Nei-tlier of these sources of testimony is definite or convincing. One of McGehee’s accomplices testified that Mc-Gehee told him that he (McGehee) stole the key (used to enter the filling station) from appellant. McGehee later said that Johnson gave him the key some 3 or 4 months previously. In fact McGehee stated he had forgotten he even had the key until they decided to rob the filling station. None of the four accomplices claim the intended robbery was ever mentioned to Johnson before it was executed. Outside of this decidedly weak testimony on the part of Johnson’s accomplice, there is no substantial testimony tending to connect him with the crime. The strongest testimony in the record of this nature is that of the sheriff, and it is far from positive. He says appellant admitted, after much hesitation, that he gave the key to McGehee. This, standing alone, would of course be substantial evidence to sustain a jury’s verdict, but its evidentiary force is weakened if not erased entirely by other facts and circumstances. Appellant admits, and he is corroborated by McGehee, that he gave a bunch of keys to McGehee several weeks or months before the robbery. It seems that the purpose was not a laudable one but it definitely was not for the purpose of committing the robbery in question — perhaps explaining why appellant was reluctant to admit giving the keys to McGehee. Also, the sheriff, with commendable frankness, admits that appellant never did say he gave the key to McGehee to rob the filling station. In addition, there are numerous circumstances which tend to show appellant took no part in the robbery. He was not present, he did not know the boys were going to rob the station, he knew of $1,000 concealed in the station but did not tell the four boys anything about it, and he did not get any of the money which was taken.

Prom a study of the record it seems that one of the strongest incriminating circumstances against Johnson and one which could have been the deciding factor with the jury, was that McGehee knew which key (of a large number of keys given to him by appellant) would unlock the side door to the filling station. This circumstance, unexplained, would indicate appellant must have pointed out to McGrehee the proper key.

In view of the above circumstance and in view of the weakness of the testimony against appellant as heretofore set out, we have concluded that appellant’s motion for a new trial on the ground of newly discovered evidence should have been granted. In this motion, appellant set out that, after the trial was over, Mrs. Harper Wolfe of Warren informed him that Calvin McGrehee had formerly worked at the filling station which was robbed. The form and sufficiency of other material allegations in the motion are not questioned.

From what has already been stated, the relevancy and importance of Mrs. Wolfe’s testimony is apparent.

We have concluded therefore, that the judgment against Johnson should be reversed, and that the cause should be remanded for a new trial consistent with this opinion. It is so ordered.


author: Sam RobiNSON, Associate Justice.

text:
    Bates v. Brock.
    5-1406
    309 S. W. 2d 20
    Opinion delivered January 13, 1958.
    [Rehearing denied February 10, 1958]

      Wiley W. Bean, for appellant.

      L. A. Willimns and Richard Mobley, for appellee.
   Sam RobiNSON, Associate Justice.

This is the second time this case has been here on appeal (Brock v. Bates, 227 Ark. 173, 297 S. W. 2d 938). The suit was filed by appellees, Jack Brock and others, to enjoin the appellant, Bates, from maintaining a gate across a road which appellees claim is a public road. At the first trial the chancellor granted Bates’ motion for a judgment when the plaintiffs closed their case in chief. The decree was reversed by this Court on a finding that the evidence was sufficient to make out a case for the plaintiff in the absence of other evidence. On a retrial the cause was fully developed and the chancellor rendered a decree in favor of plaintiffs, Jack Brock and others, requiring Bates to leave the road open.

The issue is whether the road in question is a public road. If it is, then of course Bates has no right to close it and the decree of the chancellor must be affirmed; and there is the further issue, raised on cross-appeal, as to whether appellees are entitled to damages.

The road in controversy is located in Johnson County and extends from Old Highway 64 westward across the land of Bates and then across the land of Buddy Brock and then on to the land of appellees, Jack Brock and H. G. Clark. Bates bought his land from Cecil Bar-ger in 1953. Barger, now about 65 years of age, testified that he first became acquainted with the land and the road across it in the year 1906, when the property now owned by Bates was purchased by his, Barger’s, father. He moved onto the property at that time and lived on it during a greater portion of the time until 1950. He purchased the property about 1937 and sold it to Bates in 1953. Barger testified that the road had always been considered a public road and that he had never regarded it as a private road. At one time he did threaten to “nail it up” because of troublesome stock, but he didn’t do it.

Older residents of the area, ranging in age from about 56 to 70 years, testified that the road had been there ever since they could remember and that it had been used freely by them and the public generally for fifty years and more, one such resident, W. P. Smith, testifying that he had traveled the road for some 63 years, which would date back to 1892, and John Brown that he had traveled the road on a specific occasion in 1900 and also that he had been over it before then. There is a reasonable inference deducible from the evidence that the road extended from Old Highway 64 to a point on the Arkansas River known as Pittsburg Landing and that the road was used by the public in going to and from the landing during a good part of the last century. The evidence is convincing that the road was open and being used by the public as a matter of right without objection by those who owned the land prior to Bates.

In Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18, we said:

“To establish their easement by prescription, it is necessary that appellees establish their use of the roadway for more than seven consecutive years, under a claim of right, adverse, and hostile to appellants. Quoting from 14 Words and Phrases, Easement by Prescription, p. 98: ‘ “Easement by prescription” may be created only by adverse use of privilege with knowledge of person against whom easement is claimed, or by use so open, notorious, and uninterrupted that knowledge will be presumed, and exercised under claim of right adverse to owner and acquiesced in by him.’ ” (Emphasis supplied)

In the case at bar Barger stated that from 1906 until he sold the land in 1950 he considered the road a public road, considered that the public had a right to use it, and never stopped its use; that he never considered it was being used by his permission, but on the contrary that people were using it as a matter of right. He also testified that lie signed a petition to have the road made a connty road. However, the record does not reflect a conrt order to that effect.

The case of Kimmer v. Nelson, 218 Ark. 332, 236 S. W. 2d 427, deals with a time element comparable to that in the instant case:

“The fair inference to he drawn from preponderating testimony is that for the greater part of a half century nse of the thoroughfare was not questioned and that to the extent of the limited travel in that area those who utilized the way believed they had a right to do so, and their actions were open, notorious, and adverse. In these circumstances the original restriction in the nature of a permissive use in favor of particular persons was abandoned through the long lapse of time.”

Appellant further contends that even though it should be held that the public has gained the right to use the road by prescription, such right has been lost by reason of adverse possession on the part of appellant and his predecessors in title. Appellant contends that a gate has been maintained across the road for more than seven years; that it has therefore been held adversely to the public. The evidence is not convincing that either Bates, or Barger, his predecessor in title, ever reacquired by adverse possession the land on which the road is located.

The gate in question which brought about this controversy is located on the Bates land and is across the road which has just been described. The gate was constructed in September, 1955. There is nothing in the record which shows that this, or any other gate on the land to which Bates claims title, had been maintained continuously for a period of seven years.

On cross-appeal appellees contend that according to a preponderance of the evidence they are entitled to damages by reason of Bates’ having kept the road closed during the year 1956, and we believe that appellees are right in their contention. It appears that the land could have been rented by appellees for $200 for that year, except for tbe fact that the road was closed to them by the appellant.

Affirmed on appeal; reversed on cross-appeal, with directions to enter a decree not inconsistent herewith.

Ward, J., dissents.