text:
    Ben B. HUBBARD and Irma W. Hubbard, his wife v. Mrs. Roscoe McKEE
    5-5629
    471 S.W. 2d 550
    Opinion delivered October 18, 1971

      Wiggins & Christian, for appellants.

      J. Clib Barton and Franklin Wilder, for appellee.
   J. Fred Jones, Justice.

Mrs. Irma W. Hubbard and Mrs. Roscoe McKee own their homes on adjacent lots fronting on Kinkead Avenue in the City of Fort Smith. A concrete driveway extends from Kinkead Avenue to garages on the rear of the two lots. The driveway is approximately ten feet wide with approximately six feet of it on the Hubbard lot and four feet of it on the McKee lot. The Hubbards attempted to build a fence along their property line through the length of the driveway and they bring this appeal from a decree of the Sebastian County Chancery Court holding that Mrs. McKee has a private easement for ingress and egress to the rear of her property over the concrete driveway and enjoining each party from interfering with the other in the free use of the driveway. The Hubbards rely on the following point for reversal:

“The trial court erred in finding that the appellant had objected to the use of the driveway for more than seven (7) years last past and in awarding a private easement for ingress and egress to the appellee.”

The facts as gathered from the evidence of record are to the effect that both pieces of property were originally owned by a single individual and adjoining garages were constructed under one roof on the rear of the lots. These garages are unaccessible from the alley behind the lots. The McKee property was purchased and occupied by Roscoe McKee and the appellee, Mrs. Roscoe McKee, about 1935. Mr. McKee died in 1964 and Mrs. McKee, now 89 years of age, has continued to live on the property. She continued to drive her own automobile and use the driveway until about four years before the trial of this case, and her friends and relatives have continued to use the driveway in reaching the rear of her home since she quit driving her own automobile.

Mr. and Mrs. Harry Whitenak originally owned the Hubbard property having purchased it about 1938. Appellant Irma W. Hubbard is the daughter of Mr. and Mrs. Whitenak who are now deceased. She now owns the property originally owned by her father and mother. She lived at home with her father and mother after they purchased the property and has continued to live in the home since the death of her parents. She and Mr. Hubbard were married in 1943; they lived a short time in Knoxville but have lived on the property involved since 1945. The driveway between the two lots was constructed in 1938 and there is no question that it was used constantly from 1938 until the incidents leading to this litigation.

It appears from the evidence that Mr. and Mrs. Hubbard became dissatisfied with the extent and manner Mrs. McKee’s relatives, friends and neighbors used the driveway in visiting Mrs. McKee after her husband’s death, and that this dissatisfaction finally resulted in Mr. Hubbard attempting to close the driveway to Mrs. McKee by erecting a fence through the length of the driveway three inches inside his true property line.

The chancellor found that the driveway had been used by Mrs. McKee and others in an adverse, hostile and continuous manner for more than 20 years and he entered an order enjoining and restraining each of the parties from interfering, obstructing or blocking the driveway or doing anything to prevent the normal and peaceful use of the driveway by either of the parties or their friends, relatives, people making deliveries and other visitors. The chancellor further found that there had been objections by Mr. and Mrs. Hubbard to the use of the driveway by Mrs. McKee, her relatives, friends and visitors for more than seven years and, therefore, the adverse use under claim of right was brought home to the Hubbards for more than seven years prior to the effort on the part of Hubbard to erect the fence in the driveway.

The evidence is not perfectly clear as to the exact date the Hubbards first objected to Mrs. McKee’s use of the driveway. Mrs. McKee and her witnesses testified that friction between the families resulted from bankruptcy proceedings 15 years ago and that Mr. Hubbard had objected in various ways to the use of the driveway since that time. The Hubbards and their witnesses testified that all the objections indicated by the Hub-bards were within the past three years.

There is no question that the driveway was being used for ingress and egress to Mrs. McKee’s house. Mr. Hubbard testified that all the difficulty over the driveway arose during the past three years; that he kept an accurate account of the automobiles using the driveway to Mrs. McKee’s house over a period of time, and that there were 243 vehicles going to her house over the driveway from September 29, 1969, to June 16, 1970.

A plat of the premises offered in evidence shows that the driveway forks near the rear of the two lots and that portion leading to the front of the McKee garage is entirely on the McKee lot as it enters the garage. Mrs. Hubbard was living at home with her parents when the driveway was constructed and her own testimony relating to its construction is significant. She testified that Mr. McKee came over and discussed the driveway with her father; that her father built the driveway with his own labor and that he and Mr. McKee shared equally in the cost of. the materials. In answer to questions propounded by the chancellor, Mrs. Hubbard testified as follows:

“THE COURT: Your Dad built the driveway?
A. He built the driveway, and he did the labor, and he and Mr. McKee split the cost of the concrete.
THE COURT: They mutually agreed then to put the driveway in and split the cost?
A. Yes.”

Mrs. Hubbard testified that she begged her father not to share the driveway with the McKees because of trouble they had previously had, but that her father and Mr. McKee went ahead and built the driveway over her objections as she put it:

“Me begging them not to do it, not to share it, because we had had trouble before. And I asked Dad not to do it. And they said, oh, it is two old people, they can’t bother anybody.”

Mrs. Hubbard testified that Mr. McKee has been dead about nine years and that about 18 months before his death his daughter, Mrs. Pitts, who lived nearby, converted her own garage into a temporary apartment and started parking her automobile in the McKee yard. She testified that Mrs. Pitts used the driveway in gaining access to the McKee yard and that she, Mrs. Hubbard, objected to the use of the driveway by Mrs. Pitts. In this connection Mrs. Hubbard testified as follows:

“A. ... I asked Mr. McKee, I said, Mr. McKee, how long is this going on, you know this driveway has just been built for the two houses. And he said, oh, they are going to build a carport. Well, he was not well. I didn’t push the issue, which was my mistake.
Q. That was Mr. Roscoe McKee?
A. Yes.
Q. About when they were going to quit using the driveway? And he died nine years ago. How many years before was that?
A. About a year or eighteen months before he died.
Q. And you asked him then how long he was going to use that driveway?
A. I asked him how long they were going to use the driveway. He died in 1961, and I would say this was along in 1959.
Q. And you let him know then you didn’t like him using that driveway?
A. Yes, sir.” (Emphasis added).

In the recent case of Armstrong v. McCrary, 249 Ark. 816, 462 S. W. 2d 445, the facts were almost identical to the facts in the case at bar. In Armstrong the two adjoining property owners built their garages under one roof on the back of their lots with their respective garages on each side of the division line. In Armstrong most of the driveway was on Armstrong’s property and he could drive his car directly over the driveway into his garage, whereas McCrary, when using the driveway to reach his garage, was required to deviate to his right and onto his own lot in order to enter his garage. Most of the evidence in Armstrong was directed to the continuous use of the driveway by both parties over a long period of years, and there was considerable evidence both pro and con as to the extent of actual use. The appellant Armstrong contended that he had maintained the driveway over to the appellee’s fence since he purchased the property in 1956, and that McCrary had only used the driveway on rare occasions and then by specific permission granted by Armstrong. McCrary contended that he had used the driveway regularly and as a matter of right over the years. In sustaining the chancellor’s findings that the continuous use had ripened into a right by prescription we said:

“We are unable to say that the findings of the chancellor are against the preponderance of the evidence. Whether appellee used the driveway and under a claim of right was highly disputed. . . The chancellor elected to give greater credibility to the evidence proffered by appellee and he was in much better position than we are to make the choice. Additionally, the construction of the double garage in 1932 by Snodgrass and Bracy is highly pursuasive. Each had contributed part of the land that went into the project and they endeavored to place the garage astride the common boundary. Entrance to Mr. Bracy’s [McCrary’s] side of the garage from the street could be gained only by traversing the established driveway. The hedge and wrought iron fence on the Bracy property, instead of being straight, curved at the north end so as to permit Mr. Bracy to deviate to the right at the north end of the driveway and enter the garage.”

The dissenting opinion in Armstrong points out that use which is permissive in its inception can never ripen into an adverse or hostile right no matter how long continued unless an adverse right has been brought home to the owner, and the two dissenting Justices simply disagreed with the majority as to the sufficiency of the evidence to establish the claim of right adverse to the owner.

In the case at bar there is no question as to the constant use of the driveway for more than 20 years by both the Hubbards and the McKees. As a matter of fact it was the use of the driveway by Mrs. McKee’s relatives and visitors, which was considered excessive by the Hub-bards, that brought about the lawsuit in this case. According to Mrs. Hubbard’s own testimony her father and Mr. McKee each contributed a portion of their lot for the construction of the driveway; they both contributed to the cost of the materials that went into the construction of the driveway, and they did so over her personal objections.

Furthermore, by the construction of the common driveway to the adjoining garages under one roof, through their joint efforts, Mr. and Mrs. McKee obtained a license to use the driveway, and the Whitenaks, and the persons holding under them, having accepted the benefits of the improvement, are estopped to contest Mrs. McKee’s use. See Styers v. Northern, 241 Ark. 1023, 411 S. W. 2d 296 (1967), and Wynn v. Garland, 19 Ark. 23 (1857).

We are of the opinion, therefore, that the chancellor’s decree is not against the preponderance of the evidence in this case and should be affirmed.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Henry WELTER et al
    5-5590
    471 S.W. 2d 541
    Opinion delivered October 18, 1971

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Gordon, Gordon if Eddy, for appellees.
   Conley Byrd, Justice.

On the first appeal of this case, Arkansas State Highway Commission v. Welter, 247 Ark. 23, 444 S. W. 2d 65 (1965), we reversed a $23,000 verdict because all the landowners’ witnesses had compared the values of the lots in the landowner’s paper subdivision to the sales of lots in fully developed subdivisions containing curbs, gutters and all utilities. After the date of our mandate, the landowners consummated a $50,000 sale of a one acre tract to Franks Oil Company. At the commencement of the present trial, the landowners waived all rights to severance damages. The trial court then instructed counsel for the Highway Department that the sole issue was just compensation for the parcel actually taken and that he could not refer to the fact that the landowners owned any adjacent or contiguous lands to the lands condemned or that the lands were enhanced in value as result of the highway construction. The jury returned a verdict for $6,000. The Highway Department appeal contends that the trial court erred in refusing to allow it to introduce evidence of the before and after market value of the property in litigation and also that the trial court erred in refusing to strike the testimony of appellees’ value witnesses.

As far as the record here shows, the landowners, for some 9 or 10 years, had on record a paper plat of the lands involved. Welter readily admittéd that they have neither installed utilities, constructed streets nor sold any lots. Thus for practical purposes their so-called subdivision is nothing more than a paper plat or, as sometimes called in the real estate trade, a “paper tiger’’.

There is a diversity of opinion among the several jurisdictions of the United States on the issue presented here. See 27 Am.. Jur. 2d Eminent Domain § 357. However, our court has consistently ruled that where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits under our constitution. See Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707 (1897); Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62 (1923), and Gregg v. Sanders, 149 Ark. 15, 231 S. W. 190 (1921). The federal decisions are in accord, see Bauman v. Ross, 167 U. S. 548, 17 S. Ct. 966, 42 L. ed. 270 (1896) and McCoy v. Untion Elevated Railroad Co., 247 U. S. 354, 38 S. Ct. 504, 62 L. ed. 1156 (1917). Of course the benefits to be set off are those which are local, peculiar and special to the owner’s land, who has been required to yield a portion pro bona publico, Weidemeyer v. Little Rock, supra. It follows that under the foregoing authority, the trial court on the record before us erred in limiting the issues and excluding evidence of special benefits.

While the other issue, because of the foregoing ruling, may not arise in the same context on a new trial, we point out that the trial court did not err in refusing to strike the testimony of the landowners’ witnesses. In this trial the landowners’ witnesses properly limited their comparable sales for purposes of establishing value to sales of parcels in undeveloped subdivisions.

Reversed and remanded.

Brown and Fogleman, JJ., concur.

John A. Fogleman, Justice,

concurring. I concur in the result, but the real issues on this appeal do not seem to have been fully covered in the majority opinion. As a result, this case appears to be in conflict with our decision in Arkansas Power & Light Company v. Furlong, 250 Ark. 617, 466 S. W. 2d 476.

In this case appellees successfully moved for exclusion of evidence of benefits to land owned by them by the simple expedient of waiving their right to recover severance damages. The court directed, upon appellees’ motion, that all testimony be restricted to the value of the land taken. While our cases contain language that might be taken to approve such a procedure, I do not believe that to be their actual effect.

Some of them are cases wherein eminent domain was exercised by public utilities. See, e. g., Arkansas Power & Light Company v. Furlong, supra; Arkansas Louisiana Gas Company v. Burkley, 242 Ark. 662, 416 S. W. 2d 263. These cases are not particularly persuasive because the corporations condemning were constitutionally barred from offsetting benefits. Article 12, § 9, Constitution of Arkansas. Another did not really settle the question here involved. Lazenby v. Arkansas State Highway Commission, 231 Ark. 601, 331 S. W. 2d 705. While its language appears to support appellees’ position, the question involved was whether the court properly directed a verdict against a landowner when her sole witness testified only as to the value of the land taken. The language seized upon to support the trial court’s action is in the following paragraph:

It appears to us that appellee, and perhaps the trial court, erroneously thought the proper way to fix the value of the condemned land was to show the market value of the entire tract of land before the taking and the market value of the remaining land after the taking. This rule would be correct if appellant was seeking severance damages to the remainder of the land because of having been divided by the right-of-way. It will be noted, however, that the witness did not attempt to establish this kind of damages but was only seeking to show the value of the land that was actually taken.

In evaluating this language it must be remembered that only one witness testified and that the verdict was directed without any testimony having been introduced on behalf of the condemnor. As we then pointed out, a directed verdict in favor of the condemnor for the value of the land taken could not be justified as representing the value of the land less benefits, because there was no evidence that the land was benefited, much less that benefits were peculiar to the land involved.

Although there is a conflict of authorities, we have clearly adopted the rule that special benefits peculiar to the tract involved may be set off against both severance damages and the value of the land actually taken. See Ark. Stat. Ann. § 76-521 (Repl. 1957); Martin v. Raulston, 239 Ark. 769, 394 S. W. 2d 133; Washa v. Prairie County, 186 Ark. 530, 54 S. W. 2d 686; Cullum v. Van Buren County, 223 Ark. 525, 267 S. W. 2d 14; Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051, cert. denied, 305 U. S. 642, 59 S. Ct. 148, 83 L. Ed. 414 (1938); Peterson v. Garland County, 188 Ark. 1167, 65 S. W. 2d 18; City of Paragould v. Miller, 114 Ark. 334, 170 S. W. 78. Since appellant had a right to have benefits to the remainder of the tract involved set off against the value of the lands actually taken, the mere waiver of severance damages by appellees did not and could not prevent appellant from offering proof of benefits.

But the problem goes deeper than this. Not every local, special and peculiar benefit to any land owned by the particular owner can be offset against the value of the land taken plus damages to the remainder of the particular tract involved.

The property was described in lots and blocks in appellant’s complaint. The total area taken amounted to some 1.6 acres out of the undeveloped subdivision. Appellant was attempting to proceed, however, upon the theory that the subdivision constituted part of a still larger tract owned by Welter and that the whole tract consisting of 40 acres had been benefited by the construction of the highway to such an extent that the total value of the Welter property remaining was even greater than the value of the entire tract before the taking.

Appellees objected to appellant’s proffer of evidence of benefits made during the course of the trial on the ground that appellant had failed to show that there was any unity in the 40 acres selected by appellant out of a total of 128 acres owned by Welter. The only reasons given by the appellant’s witnesses for doing this was that this particular 40-acre tract happened to be the only quarter-quarter section touched by the highway and that it was conveyed to Welter by a single separate conveyance. They gave no reason for not considering the other contiguous lands of Welter as a part of the total unit.

This proffer was hardly sufficient to meet one of the tests for admissibility of evidence of offsetting benefits, i. e., that the benefits must relate to a unit of which the tract taken is a part. This requires unity of ownership and use. The unit to be considered must be determined either by the court or, in certain cases, by the jury. See Arkansas State Highway Commission v. Arkansas Real Estate Company, 251 Ark. 96, 471 S. W. 2d 340. Appellant’s witnesses may have been observing this principle when they excluded from consideration an additional 88 contiguous acres owned by Welter.

The rules pertaining to offsetting benefits are the same as those pertaining to severance damages. The pertinent law is discussed in such a concise manner in 27 Am. Jur. 2d 220, § 365, that I take the liberty of quoting it largely, to-wit:

In order for benefits to be deducted or set off, they must be such as relate to the particular property which has been damaged, or part of which has been taken for public use, as distinguished from other property.
# # *
It is an established general principle that benefits to land owned by the condemnee other than that which is damaged, or a part of which is taken, for public use, cannot be taken into consideration in the deduction or setoff of benefits. A difficult question may arise, however, as to whether, for the purpose of setting off benefits, a piece of land allegedly benefited is, or is not, part of the particular tract which is damaged, or a portion of which is taken, for public use. Whether two or more lots constitute a single plot for benefit purposes is said to depend on the improvements erected upon them, the nature and character of their use, and also, in some cases, on the ordinary use to which land in the vicinity is put. Unity of use, unity of title, and contiguity are held to be required to constitute a single tract for the offset of special benefits against severance damages. A piece of land allegedly benefited by a public improvement constitutes no part of the particular tract which is damaged, or a portion of which is taken, for public use, where the piece allegedly benefited is a distinct and separate parcel of land, independent, differently located, not connected with the land appropriated or damaged, or not a part of the same body of land. In some cases the deductibility of benefits has been denied where they accrued to land near, but not adjacent to, the piece of which part was taken for public use, even though it does not appear that the land allegedly benefited was separate and disconnected from that appropriated. On the other hand, a piece of land allegedly benefited by a public improvement is held to be part of the particular tract which is damaged, or a portion of which is taken, for public use, where the estate to which both parcels belong is an entire or continuous one and not several distinct lots and parcels, or where the entire property is used and treated by the owner as one tract, or used together for a common purpose, at least where the whole land lies in a contiguous body, or where the properties in question are adjoining.
It has been held that property adjacent to that which is damaged, or a part of which is appropriated, but abutting upon another street, or lots in the same tract, but abutting upon different streets and separated by an alley or street, are to be treated as separate lots for the purpose of the deduction of benefits in eminent domain. It has also been held that regularly platted unoccupied city lots are presumed, unless shown to the contrary, to be separate tracts for the purpose of determining damages and benefits. On the other hand, lots of the same owner situated upon opposite sides of the same highway have been treated as one tract of land for the offset of benefits, although the contrary position has also been taken.
It has been held that irrespective of other considerations, benefits to a piece of land, though not contiguous to the property taken or damaged, can be deducted, where the owner’s petition for the recovery of compensation or damages treats the property in question as a whole, and damages are asked for in a lump sum.
While the condemnee is generally protected against a deduction of benefits which accrue to property other than that which is damaged, or a part of which is taken for public use, it should be noted that the condemnor also is protected, in that it is entitled to have the deduction based upon the benefits accruing to the whole tract or lot, not merely those accruing to a part thereof. Such protection is assured by the rule that, in assessing compensation for the taking or damaging of property for public use, a partial effect only is not to be considered, but the whole effect, and the effect, not upon a selected part of the tract, but upon the whole tract. Therefore, damages cannot be estimated separately to a limited portion of the land not taken, without balancing special benefits and damages in connection with the whole tract not taken.

The applicable principle is expressed by the text writer in § 188, Eminent Domain, 29A C. J. S. 790, as follows:

Benefits are referable to the same tract of land as is considered in determining damages; subject to this restriction, they are referable to the tract as a whole, except where the value of only a portion of the tract is affected by the taking, in which case the remainder of the tract may be disregarded in assessing benefits.

An authority frequently resorted to by this court has this to say:

The situation above described is to be distinguished from the case where an owner, part of whose property has been taken or damaged, is also the owner of a contiguous but separate and distinct parcel which, although not taken or damaged, is enhanced in value by the improvement. It has been held that the benefit to such separate tract may not be set off against the compensation for the taking of and damage to the first parcel unless such separate parcels are in fact utilized by the owner as a unit so that they may be regarded as one parcel for the purpose of. determining benefits. If, as a matter of fact, however, such parcels are not actually used as a unit, but simply have such future possibilities, they may not be so considered.

3 Nichols on Eminent Domain, Third Edition, § 8.6210 [1].

The same thought is expressed by the annotator in “Eminent Domain: Deduction of Benefits in Determining Compensation or Damages in Proceeding Involving Opening, Widening, or Otherwise Altering Highway,” 13 A. L. R. 3d 1149 (1967) at 1212, viz:

In conformity with the general principles governing the assessment of damages as between separate tracts of land in eminent domain proceedings; benefits' accruing to one tract of land may not be deducted from damages to another in the absence of evidence of such unity of ownership and use as will justify treating the two tracts as one.

See also, Annot. 145 A. L. R. 7, 116, et seq. (1943); Arkansas State Highway Commission v. Conway Development Corp., 244 Ark. 988, 428 S. W. 2d 291.

There have already been two trials in this case, and our action today will result in a third one. It is obvious that the question treated in my separate opinion will arise on retrial. As I see it, it is clearly our duty to treat the question in an effort to avoid the possibility of a fourth trial.

I am authorized to state that Mr. Justice Brown joins in this concurrence.

      The rules dealing with this question are primarily developed in cases concerning the proper measure of compensation and damages in eminent domain, irrespective of whether benefits are in issue. See §§ S15 et seq., supra. [Footnote reproduced from the text.]

      See 95 ALR 2d 887 dealing with the unity of ownership necessary to allowance of severance damages in eminent domain. No exhaustive treatment of the question whether supposedly separate tracts may be treated as one for eminent domain purposes is here intended. [Footnote reproduced from the text.]


author: Frank Holt, Justice.

text:
    Lauretta BENTLEY v. Ralph HENDERSON, d/b/a Lewis Bar-B-Q and Glens Falls Ins. Co.
    5-5607
    471 S.W. 2d 549
    Opinion delivered October 18, 1971

      Q. Byrum Hurst and Harmon if Wallace, for appellant.

      Wood, Smith if Schnipper, for appellees.
   Frank Holt, Justice.

In this workmen’s compensation case the appellant seeks dependency benefits as the result of the death of her husband. The Commission affirmed the referee’s denial of benefits and the Commission’s action was affirmed by the circuit court. For reversal the appellant first contends that the court erred in denying benefits to the appellant because there is insufficient evidence to support the Commission’s finding that the decedent’s death was not causally connected with his employment.

Appellant’s husband, 49 years of age, was an employee of the appellee, Lewis Bar-B-Q, as the cook and manager “off and on” for many years. On January 12, 1968, as he walked toward the kitchen, appellant noticed that her husband staggered and when she came to his assistance, his right arm drew “straight up” and he fell. Following this spasm, “his head went limp like he was dead.” He was hospitalized and under treatment until January 22. On February 6 he was again admitted to the hospital and three days later a pneumonectomy operation was performed for carcinoma of the right lung. On February 21 he was released and he died on March 28, or about two and one-half months after collapsing at his place of employment. During this period he never returned to work. The death certificate shows that the immediate cause of his death was “bronchogenic carcinoma right lung metastatic to base of brain.”

Appellant testified that before his collapse at the place of employment, her husband’s health appeared to be good. He told her on the date he fell that he was going to the hospital where Dr. Bennett was going to treat a calcium deposit in his shoulder and that he also had chest pains and couldn’t breathe. She stated that Dr. Bennett told her that her husband had suffered a cerebral spasm that was due to “sheer exhaustion for months.” She said that her husband had other episodes like this but less severe and she thought he had hit his head when he fell and that she also fell on him.

A January 25, 1968 report by Dr. Bennett states in pertinent part: My diagnosis of Mr. Bentley’s condition is a cerebral vasospasm; I discharged Mr. Bentley on January 22, 1968, into the care of Dr. Sammons with no evidence of residual. The March 19 report of Dr. Bennett states: “Mr. Bentley, in February 1968, had a pneumonectomy right for bronchogenic carcinoma. He subsequently developed metastatic lesion on the base of the brain. He is hemiplegic on the right and developing paralysis left lower. He is not expected to live.”

According to Dr. Sammons, he saw appellant’s husband on January 18, 1968, and had the impression that appellant’s husband had lung cancer and it was a distinct possibility that his convulsion was secondary to the spread of his tumor to the brain. Further, that an electroencephalogram run by Dr. Frank Padberg did not reveal any definite evidence of a localized lesion to account for Mr. Bentley’s seizure. Dr. Sammons also said that on February 9 he performed a right pneumonectomy; Mr. Bentley made a relatively smooth recovery until March 6, 1968, when he began to have blurred vision and slurred speech similar to that associated with the original attack. He recommended that Bentley see Dr. Padberg relative to his cerebral symptoms; that he could not say absolutely, but thought the preponderance of evidence would suggest that Bentley died of cerebral metastasis from his carcinoma of the lung.

Dr. Padberg was not further consulted. His final report, dated January 29, 1968, stated: “The electroencephalogram did show some occasional spiking which was non-focal and there was no focal slowing or spiking noted in the record which would go along with any type of local lesion. * * * I told him that we did not point out or come up with any dramatic or particular findings from the studies we have concluded at this time which I thought would require further investigative measures at this time. I did tell him I wanted to see him again in 5-6 weeks or a few weeks after he had the therapy directed towards his chest, if this was the thing that was going to develop for him.”

On appeal we give the testimony adduced its strongest probative force in support of the Commission’s action and affirm if there is substantial evidence to support its finding. St. Michael Hospital & Argonaut Ins. Co. v. Wright, 250 Ark. 539, 465 S. W. 2d 904 (1971); Farrelly Lake Co. v. Redden, 235 Ark. 404, 360 S. W. 2d 187 (1962). Certainly we cannot say, in the case at bar, that there is no substantial evidence to support the finding of the Commission that the decedent’s death did not arise out of and in the course of his employment.

The appellant next contends that the court erred in denying appellant’s motion for remand because one referee conducted the hearing and another rendered the decision. Appellant asserts this is a denial of due process of law as guaranteed by our federal Constitution. We cannot agree. This issue was before us in Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S. W. 2d 43 (1970). There we said: “[T]he findings of the referee áre of no significance either to the circuit court or to this court; resort is had on appeal only to the findings of the commission in testing the sufficiency of the evidence.” The Commission is the trier of the facts and weighs the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Leonard BEARDEN, Administrator v. ARKANSAS TRANSPORT COMPANY et al
    5-5621
    471 S.W. 2d 748
    Opinion delivered October 25, 1971

      Fulk, Lovett ir Mayes, for appellant.

      Terrel, Rawlings, Matthews ér Purtle, for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to the legal doctrine of joint enterprise. On November 2, 1965, a collision occurred near El Dorado on Highway 167 between a northbound tanker truck owned by appellee, Arkansas Transport Company, and driven by A. E. Greer, and a southbound Mercury automobile owned and driven by Lois Ann Phelan, and in which Jack Wesley Johnson was riding. As a result of the collision, Greer, Miss Phelan, and Johnson were all killed, and this suit was instituted by Arkansas Transport, and the widow and child (by her guardian) against the administrator of the estate of Jack Wesley Johnson, the passenger in the Phelan automobile. The complaint, together with the amendment, asserted that Johnson and Miss Phelan were both intoxicated, and were on a joint enterprise at the time of the collision; that the negligence of Miss Phelan was imputed to Johnson. After the filing of an answer denying the allegations, the case proceeded to trial and was submitted to the jury on interrogatories. Interrogatory No. 1 inquired whether the jury found that Johnson and Miss Phelan were engaged in a joint enterprise at the time of the accident, and this interrogatory was answered “Yes”. Interrogatory No. 2 inquired whether the jury found that Lois Ann Phelan was guilty of negligence which was a proximate cause of the accident, to which the jury answered “Yes”. Interrogatory No. 3 inquired whether the jury found Johnson to be guilty of negligence which was a proximate cause of the accident, and this inquiry was answered “No”. The jury returned a nine man verdict awarding the widow and daughter the sum of $5,000 as damages, and likewise awarding Arkansas Transport Company the sum of $5,-000 for property damage. From the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that there was no substantial evidence that a joint enterprise existed between Lois Ann Phelan and Jack Wesley Johnson at the time of the accident.

Testimony reflected that the truck driven by Greer was traveling 45 or 50 miles per hour, and that the Phelan automobile was moving at “a terrific speed” at the time of the collision; further, that the truck was on its right side of the highway and the Mercury automobile was straddling the center line. Appellant does not question in his brief that the wreck was caused by the negligence of Miss Phelan. Following the collision, blood tests were made from blood samples of Miss Phelan and Johnson by Dr. Kenneth R. Duzan, and the report was offered in evidence without objection. The report reads as follows:

“The blood tests which you refer to were performed in my laboratory. The blood was drawn by Union County Coroner, Dr. John H. Pinson. The blood was given to me. I brought it to my laboratory, where the tests were run by Mr. Wayne Tubbs, my chief laboratory technologist, under my supervision.

The blood alcohol levels are reported as 75 mg.% on Jack Wesley Johnson and 354.8 mg.% on Lois Ann Phelan. This means that there were 75 mg. of alcohol by weight in each 100 grams of blood of Johnson and 354.8 mg. per 100 grams in the blood of Phelan. At the time these tests were done, I believe that 100 mg.% was considered to be under the influence. 354.8 mg.% is a high level of blood alcohol and should indicate drunkeness.”

The validity of the recovery by appellees in this case, of course, depends entirely upon whether Miss Phelan and Johnson were engaged in a joint enterprise at the time of the wreck. Appellees do not cite any authority relative to whether persons riding in an automobile, engaged in drinking intoxicants, are engaged in a joint enterprise, devoting their arguments rather to the fact that Phelan and Johnson were acting in concert in carrying out the purpose of having a good time and were accordingly embarked upon a joint venture. However, we have cases containing dictum to the effect that where persons are driving around, bent on pleasure, and have become inebriated from drinking, such parties are engaged in a joint enterprise. Missouri Pacific Transportation Co. v. Howard, 201 Ark. 6, 143 S. W. 2d 538, Albritton, Admr., v. C. M. Ferguson & Son, 197 Ark. 436, 122 S. W. 2d 620. There are other cases involving a guest suing an alleged drunken driver; Sparks v. Chittwood Motor Co., 192 Ark. 743, 94 S. W. 2d 359, Lewis v. Chittwood Motor Co., 196 Ark. 86, 115 S. W. 2d 1072. Still others involve a passenger in a car with a drunken driver suing a third party; Wilson v. Holloway, 212 Ark. 878, 208 S. W. 2d 178. While the term “joint enterprise” is used in Wilson v. Holloway supra, a subsequent case, Hurley v. Peebles, 238 Ark. 739, 384 S. W. 2d 261 (November 30, 1964) explains that the above cited cases were really talking about “assumption of risk” rather than joint enterprise. The court said:

“A divided court in Missouri Pacific Transportation Co. v. Howard, 201 Ark. 6, 143 S. W. 2d 538, reversed a judgment in favor of appellee passenger because of erroneous instructions. Before discussing the instructions, the court stated that there was sharp conflict in the testimony, appellee’s evidence being that the driver and passengers were sober, appellant’s being that they were drunk, ‘in the car . . . driving around on pleasure bent,’ and then said, ‘If this testimony is true [i. e., all inebriated], the parties in the car were engaged in a joint enterprise, and the negligence of the driver would be imputed to each of them. Albritton v. Ferguson [supra].’ To set the record straight, if the group, appellee, the driver and other passenger, were drunk, appellee may have ‘assumed the risk’ [J. Paul Smith Co. c. Tipton, 237 Ark. 486, 374 S. W. 2d 176], but the facts reflected in the Missouri Pacific Transportation Co. v. Howard opinion, supra, do not meet the criteria of joint enterprise as we understand them in the law of Arkansas. Woodward v. Holliday, supra.

In Wilson v. Holloway, 212 Ark. 878, 208 S. W. 2d 178, the court cites Missouri Pacific Transportation Co. v. Howard, supra, and Albritton v. Ferguson, supra, as authority for the ‘drunken joint enterprise’ theory, and then states:

‘In the case of Sparks v. Chitwood Motor Co., 192 Ark. 743, 94 S. W. 2d 359, Justice Mehaffy approved the following statement from Berry on Automobiles, § 5.181: ‘If the occupants and driver of an automobile drink together and become intoxicated, each is as responsible as the driver for negligent driving, and none can recover injuries due to such negligence.’

The logic in this quotation is well-founded in the law of assumed risk and was ample basis for the holding in Wilson v. Holloway without reference to the dicta on ‘drunken joint enterprise.’ ”

We have been cited to no case where a passenger riding with a drunken driver, the negligence of the latter being the proximate cause of injuries to a third party, was held liable to such third party on the basis of joint enterprise. That, of course, is the situation that we have in the case before us, and it is at once apparent that there is a vast difference where one, riding with a drunken driver who causes a collision, institutes suit himself for recovery, and where a third party, injured by the drunken driver, institutes suit only against the passenger. The last type of case requires far more evidence than the first because in the first instance we may well have the situation of a passenger assuming the risk of riding with one who is intoxicated.

We have held that to establish a joint enterprise, two fundamental and primary requisites must exist. In Woodward v. Holliday, 235 Ark. 744, 361 S. W. 2d 744, we said:

“This court has consistently held that in order for a joint enterprise to arise two fundamental and primary requisites must concurrently exist, to-wit: A community of interest in the object and purpose of the undertaking in which the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto. If either or both of these elements is absent, there is no joint enterprise. Stockton v. Baker, 213 Ark. 918, 213 S. W. 2d 896.”

Without hesitancy, we hold that proof is lacking of the second requisite in the case before us. Admittedly, if joint enterprise were established, it had to be on the basis of the testimony of Tommy D. Roberts, whose deposition by interrogatories was taken by appellees. The deposition first recites that Roberts, 27 years of age, was working on November 2, 1965, for Wheeling Pipeline Company in El Dorado; that he saw Miss Phelan and Johnson at Folger’s Truck Stop between 1:00 a.m. and 2:00 a.m.; that he knew, and had seen, both parties many times. Roberts said he was around the two until about 4:00 o’clock a.m., the three sitting at a counter in the cafe. The witness stated that when the two came to Folger’s, Lois Ann Phelan was driving “and almost ran into the cafe where I was sitting. She was driving too fast when she turned into the parking lot and skidded up to the door”. Roberts said that the three just carried on regular conversation, the two mentioning that they had been “to a party but didn’t say where the party was”. According to Roberts, Johnson “appeared to be slightly tight”. When asked if Johnson was drunk or sober, he replied “drunk”. When asked about the appearance of Miss Phelan the witness stated “she was really drunk”. Roberts said that from his observation, Johnson was “not capable of driving a car safely” and that Miss Phelan “wasn’t capable”. Pertinent portions of the deposition are as follows:

“(a) Did Jack Wesley Johnson and Lois Ann Phelan talk or have any discussions?
A. Yes, they were talking together and to me.
(b) Did both of them participate in the talks or discussions?
A. Yes.
(c) Did they talk about where they were going or what they were going to do? If so, state fully and in detail what each said.
A. Yes. They said they were going to El Dora-do, Arkansas.
(d) Was any food or drink ordered by either of or both? If so, state fully and in detail who placed the order and who paid for the order.
A. They both placed an order for coffee and Jack Wesley Johnson paid for the order.
(e) Did either or both play the music machine, and if so, state whose idea or suggestion it was, who made the selections and who put the money in the machine?
A. They both played the music machine — she wanted to play it and he put the money in.
(f) State fully and in detail any other activity, discussion or agreements you heard or observed between Jack Wesley Johnson and Lois Ann Phelan.
A. They just drank coffee and played the music machine.
(g) In all of the talks, discussion and activities, which you observed between or by Jack Wesley Johnson and Lois Ann Phelan, did Jack Wesley Johnson participate in such talks, discussions and activities less, equally or more than Lois Ann Phelan?
A. Less.”

Appellees argue that the evidence of Roberts constitutes substantial evidence that the parties were engaged in a joint enterprise, there being a clear showing of a community of interest in the subject and purpose of the undertaking. We agree that the evidence could be said to show that the two were at Folger’s having a good time, had been to a party together, were drunk, were not capable of driving an automobile safely, and were fixing to go to El Dorado, Arkansas (though the purpose of the trip was never mentioned).

Appellees then state:

“The following evidence shows that Jack Wesley Johnson and Lois Ann Phelan, had an equal right to direct and govern the movements and conduct of each other—

(1) Both of them were drunk:
(2) Both of them participated in the talks or discussions;
(3) Both of them talked about where they were going and what they were going to do, specifically, that they were going to El Dorado, Arkansas.
(4) Both of them placed an order for coffee and Johnson paid for it;
(5) Both of them played the music machine. Miss Phelan wanted to play it and Mr. Johnson put the money in the machine.
(6) They were partying together.”

We are unable to agree with this contention, nor with the reasoning employed for the fact that both were drunk and participated in the discussions certainly did not mean that they were on a joint, enterprise. We daresay many people become drunk and talk without being on a joint enterprise. Nor do we see any significance that both ordered coffee and Johnson paid for it, or that Miss Phelan wanted the music machine played, and that Johnson put the money in the machine. Under such circumstances, the male generally pays for the coffee, and would normally place the money for the music in the music box. We cannot perceive how any of the facts mentioned by appellees establish in Johnson the right to equal control of Miss Phelan’s automobile. For a discussion of drinking drivers, and drinking passengers, see Deposit Guaranty Bank & Trust Company v. Burton, 380 F. 2d 346 (1967), where the United States Court of Appeals for the Sixth Circuit reversed judgments which had been obtained on a theory of joint enterprise.

Of course, if Johnson had owned the Mercury automobile that Miss Phelan was driving, we would have a different situation, for in such event, he clearly would have had to right to control the use of the vehicle. But any finding of the right of joint control of the automobile would, under the proof before us, be based entirely upon speculation; in fact, it would be just as easy to speculate that Johnson requested Miss Phelan to permit him to drive, but she, as many who are inebriated, felt that she was perfectly capable of operating the automobile. It is apparent from what has been said that we find no substantial evidence to support the verdict, and the judgment is accordingly reversed and dismissed.

It is so ordered.


author: George Rose Smith, Justice.

text:
    Bradley C. MASSEY v. Lou Ann JAMES
    5-5635
    471 S.W. 2d 770
    Opinion delivered October 25, 1971

      Robert D. Ridgeway, for appellant.

      M. C. Lewis, Jr., for appellee.
   George Rose Smith, Justice.

The parties to this appeal were divorced in February, 1970. Both have remarried. During the pendency of the divorce case the parties made a written agreement, approved by the court, about the custody and support of their son Terry, who is now seven years old. The agreement provided that the appellee would have the custody of the boy for nine months of each year and that the father would have custody during the three summer months. The agreement also required the father to make support payments of $60 a month “during the periods of custody of the wife.”

The main issue in the present supplementary proceeding is whether the father should be required to make the monthly payments for the three summer months of 1970, even though the mother failed to comply with the court’s decree and prevented the father from having the child’s custody during those months. The chancellor held that the payments should nevertheless be made, it being his view that the father’s duty to support his son was not affected by the mother’s violation of the written agreement and of the decree. We take the opposite view, upon the facts of this case.

When the divorce decree was entered the father was living in Arkansas, but the mother was living in California, with the child. The agreement and decree provided that the father would bear the expense of bringing the child to Arkansas for the summer and of returning the child in the fall.

In May of 1970 Massey, in a telephone conversation with his former wife, ascertained the day on which Terry’s school term would end. Massey told the appellee, now Mrs. James, that he would pick up the child in California during the week following the close of the school term. No definite date, however, was specified.

Massey and his present wife duly drove to California and, after having telephoned the night before, went to the James home for the child. It is quite evident from the testimony, and the chancellor expressly found, that Mrs. James did not make a good faith effort to honor the father’s right to have the child for the next three months. Mrs. James apparently had done nothing to prepare Terry for the trip to Arkansas with his father. She also interposed various obstacles to the change of custody, such as a demand for a bond to insure the child’s return, though the agreement contained no such provision, a statement that she would need a day or two to get the child’s clothes ready, and repeated assertions that she didn’t think the child should go at all. Finally, in an atmosphere of stress and emotion, the six-year old child was asked by his mother if he wanted to go, and after some hesitation he said that he would rather stay with his mother. It is fair to say that the Masseys were compelled to return to Arkansas without the child, for it is evident that Mrs. James’s attitude made it impossible for Massey to obtain the custody to which he was entitled, except by legal proceedings for which he had neither the necessary time nor the necessary funds. Thus the Masseys’ long trip was fruitless.

In the light of the facts in the record we do not feel that Massey should be required to make the three $60 payments for the 1970 summer months. In reaching this conclusion we stress the fact that there is no indication whatever in the record that Terry will suffer if the payments are not made. To the contrary, his needs have apparently been completely met by Mr. and Mrs. James. In fact, Mrs. James testified that when the written agreement was made she did not ask for any child support, as she thought it better that the amount be left to her husband’s conscience. Even so, the $60 figure was inserted in the agreement as finally drafted. The conclusion we are reaching makes it unnecessary for us to determine whether the additional payments could be required consistently with our holdings in Sage v. Sage, 219 Ark. 853, 245 S. W. 2d 398 (1952), and Pence v. Pence, 223 Ark. 782, 268 S. W. 2d 609 (1954).

There is one other minor point. Mr. and Mrs. James have now moved to Hawaii, where he is in military service. The appellant asks that Mrs. James be required to make a bond to insure the performance of her duty (which she recognizes) to finance the child’s trip from Hawaii to California, where the father is to pick him up, and the trip from California to Hawaii, after the visit. We have required a bond in somewhat similar situations, where the mother was to furnish transportation. Langston v. Horton, 229 Ark. 708, 317 S. W. 2d 821 (1958); Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8 (1948). Here, however, we have no information about how Massey fared in obtaining the custody of his son during the three summer months of 1971, the record having been completed before then. Manifestly, whatever took place that summer may have an important bearing upon the necessity for a bond. We therefore remand the cause to the trial court to allow the parties to proceed further in the matter of the bond, if they so elect. In remanding the cause we should state that we do not agree with the chancellor’s disinclination to exact a bond merely because Mrs. James may not comply with the court’s order. If Massey is entitled to the bond, the order should be entered.

Reversed and remanded.


author: Lyle Brown, Justice.

text:
    CENTRAL SOYA CORP. v. Jim PARRISH et al
    5-5618
    471 S.W. 2d 775
    Opinion delivered October 25, 1971

      James K. Young, for appellant.

      Latees & Schulze, for appellees.
   Lyle Brown, Justice.

The plaintiffs-appellees obtained judgment against appellant on the basis of failure to perform under an alleged contract. The decisive point for reversal is that the judgment is not supported by substantial evidence.

Appellees are Jim Parrish and wife, and Jimmy Parrish, the son. The Parrishes are engaged in the turkey growing business in Pope County. They sued Cargill of Arkansas, Inc., a turkey processor at Ozark, who had a processing contract with the Parrishes. The growers made Central Soya Corporation, appellant, a party to the suit, alleging that its field men who negotiated the processing contract failed in an oral agreement to have the turkeys picked up on the agreed pickup dates. The Parrishes also alleged Central Soya refused to permit the birds to be injected for air sac, resulting in the condemnation and down-grading of a large number of birds. The Parrishes obtained judgment against Cargill for $2625 and against Central Soya for $5250. Cargill did not appeal.

Central Soya is the manufacturer of feed concentrates called Master Mix. The concentrates are sold to feed companies to be mixed with bulk ingredients and resold. Central’s policy is to contact turkey growers and get the growers lined up with a processor which in this case was Cargill of Arkansas. At the same time Central Soya’s field men arrange with the grower to get the grower’s financing through a finance company owned by Central. Also the field men arrange with the grower to buy feed from a particular milling company in the grower’s locale — a mill which handles Master Mix. Two agents of Central — Jackie Roberts and Foster Davis— contacted the Parrishes, who signed for the package deal of processing, financing, and purchase of feeds.

The crucial question in the case is whether Central Soya was bound by contract to see that the turkeys were picked up by the processor in accordance with the time schedule prerequisites set forth in the processing contract. The second question is whether it is shown by substantial evidence that Central is liable for the condemnation of unhealthy birds due to alleged defects in the feed.

The primary obligation for picking up the turkeys on schedule was that of Cargill of Arkansas because it was so provided in the written contract. Foster C. Davis, district manager for Central Soya, was called as a witness by the Parrishes. When he called on the Parrishes, he said he had a list of processors from which the growers could select and that the Parrishes preferred the Cargill contract. Davis said he did tell the Parrishes the birds would be picked up as per the schedule in the processing contract. The most that can be said of that statement was that Davis was expressing an opinion that Cargill, a reputable processor, would abide by the contract. Davis and Roberts did lend their assistance when on more than one occasion they were told by the Parrishes that Cargill had not picked up the turkeys on schedule. On receiving each such report they would contact the processor and urge him to pick up the turkeys if possible. Davis said he knew of nothing else Central could do short of hijacking a truck. Mr. Parrish admitted that Central was not required to pick up the turkeys, but contended that Central was bound to see that it was done. (The evidence showed that the pick-ups were scheduled for the winter months and the weather was unusually inclement. The Parrishes’ neighboring growers had to use dozers to pull the loaded trucks to the main roads.) The burden was on the Parrishes to establish an unconditional undertaking on the part of an agent or agents of Central Soya that the pickup dates would be observed under any and all circumstances. We find no substantial evidence, especially in light of Davis’s testimony, that Central Soya undertook such an expressed obligation.

With respect to the Parrishes’ claim for damages due to alleged down-grading of turkeys, young Mr. Parrish testified that he had no way of knowing why the turkeys were discounted by the processor. He did say he wanted them injected for air sac (common cold) but that Central Soya advised against it and suggested that they have the feed company to add aureomycin to the feed. We cannot tell from the record, except by pure speculation, whether the advice was good or bad, and if bad, the loss directly attributable thereto.

Reversed and dismissed.

Byrd, J., dissents.


author:
John A. Fogleman, Justice. Conley Byrd, Justice, George Rose Smith, J.,
      J. Fred Jones, Justice,

text:
    Elmer Eugene FRANKLIN and Loyd Allen REID v. STATE of Arkansas
    5625
    471 S.W. 2d 760
    Opinion delivered October 25, 1971

      Leonard C. Smead and Julian D. Streett, for appellants.

      Ray Thornton, Attorney General; Gene O. Daniel, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants filed their petition for postconviction relief from the maximum sentence for burglary of the Bank of Chidester imposed by a jury on September 11, 1969. The only ground that merits any real consideration is their contention that they were deprived of the effective assistance of counsel in violation of their constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution. They alleged that during the trial William I. Purifoy, their employed counsel, was intoxicated, that he had a wine bottle in his back pocket in full view in the courtroom, and that he left the courtroom three times during the course of the trial.

The record discloses that direct evidence against appellants on the charge was overwhelming. It also discloses that the prosecuting attorney would not agree to imposition of any sentence less than the maximum. It appears obvious to us that the real purpose of the trial was to determine the punishment to be imposed and that appellants hoped to escape the maximum punishment.

There was testimony by jurors at the hearing on appellants’ petition that clearly indicated that appellants’ attorney was intoxicated and had a bottle in his pocket. Several of them observed his condition and stated that the lawyer was somewhat incoherent, and his hair and clothing disheveled, was unexplainedly absent from the courtroom on several occasions while the trial was in progress, and that he often could not be either heard or understood when he talked. The jury foreman described his conduct as highly irregular for a courtroom. Another juror said that he actually considered getting up and leaving the courtroom, because he did not feel that a jury should be required to sit on a case where the defendants’ attorney appeared, because of intoxication, to be in no state of mind to be handling a case in court. The jurors differed as to the effect on them of this attorney’s conduct, but at least some of them indicated that their verdict, either as to guilt or sentence, or both, was influenced by it.

A trooper of the Arkansas State Police to whom the attorney offered a drink from a bottle of wine during a recess before taking one himself observed the attorney during the trial. His conduct in the courtroom led the officer to the opinion that this lawyer was under the influence of intoxicants to a certain degree, but not as drunk as the officer had seen him on the streets on other occasions. The prosecuting attorney also testified that he thought that the jury might have been persuaded to give a little less sentence by a “good lawyer,” adding that he had seen this attorney perform as a much better criminal lawyer than he was at this trial.

During a recess in the trial, one Bill Horton, a relative of one of the appellants, approached the circuit judge questioning whether appellants were getting a fair trial and calling the judge’s attention to the fact that their lawyer was drinking and had a one-half pint bottle of wine in his pocket. The prosecuting attorney, either at this recess or another, reported to the judge that appellants’ attorney had a bottle in his hip pocket. This official testified that the attorney was under the influence of alcohol, that he left the courtroom on a few occasions, and that Horton’s conference with the judge was arranged by this witness after Horton had interceded with him in an effort to have a mistrial declared.

According to the judge, he then observed appellants’ attorney and his demeanor more closely during the remainder of the trial. At the conclusion of the state’s evidence, appellants’ attorney announced that they also rested. The circuit judge then held a hearing in the absence of the jury, and, apparently, without the presence of appellants’ attorney. After advising appellants that the fairness of their trial had been questioned on the basis of their attorney’s condition, he reminded them that, when arraigned some months earlier, they were informed of their right to jury trial, to remain silent and to be represented by counsel, who would be appointed by the court, if they were indigent. He also called to their attention that the court had appointed one of the attorneys by whom they are presently represented, but that they had declined his services and employed the attorney who appeared at the trial. The judge then interrogated each of appellants as to whether he felt that he was properly and adequately represented in court on that day. When each replied in the affirmative, the judge remarked that there was nothing that he could do, that the matter was brought to their attention in accordance with the dictates of good justice to both them, and the state, but if they were satisfied with their attorney’s services, he had nothing more to say. The prosecuting attorney testified that he had advised the judge that the state would not object to either the declaration of a mistrial or proceeding with the trial. He also said that he thought the court had no choice in the matter if the appellants elected to proceed with their attorney.

After the extensive hearing on the postconviction motion, the circuit judge found that the evidence was clear that appellants’ employed counsel appeared at the trial in a shabby condition and under the influence of intoxicants to some degree, to the disgrace of his profession and bar and to the degradation of our system of justice. The judge again concluded that, in view of the expressions of satisfaction by appellants, there was nothing more that he could have done.

There can no longer be any doubt that Amendment 6 to the United States Constitution requires that a defendant in a state trial have the effective assistance of counsel. See Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A. L. R. 2d 733 (1963); Mitchell v. Stephens, 353 F. 2d 129 (8th Cir. 1965), cert. denied, 384 U. S. 1019, 16 L. Ed. 2d 1042, 86 S. Ct. 1966 (1966). See also, Reece v. State, 350 U. S. 85, 76 S. Ct. 167, 100 L. Ed. 77 (1955). Effectiveness of counsel is not to be measured by the success reflected in the results of the trial. Mitchell v. Stephens, supra; Peyton v. Ellyson, 207 Va. 423, 150 S. E. 2d 104 (1966). As pointed out in Mitchell, retrospective evaluation of effectiveness of counsel is usually difficult for an appellate court, because so much depends upon judgment and the factors which influence judgment at the moment.

Normally, the state is absolved of any responsibility to see that a defendant’s counsel is competent and effective after appearance of privately retained non-appointed counsel. United States v. Maroney, 423 F. 2d 865 (3rd Cir. 1970); Lunce v. Overlade, 244 F. 2d 108, 74 A. L. R. 2d 1384 (7th Cir. 1957); United States v. Handy, 203 F. 2d 407 (3rd Cir. 1953), cert. denied, 338 U. S. 862, 94 L. Ed. 528, 70 S. Ct. 96 (1949), 342 U. S. 837, 96 L. Ed. 632, 72 S. Ct. 61 (1951), 346 U. S. 865, 98 L. Ed. 375, 74 S. Ct. 103 (1953), aff’d, 351 U. S. 454, 100 L. Ed. 1331, 76 S. Ct. 965 (1956); United States v. Ragen, 166 F. 2d 976 (7th Cir. 1948). Yet, when the professional conduct of non-appointed counsel is so lacking in competence or good faith that it shocks the conscience of the court or prosecutors, and the trial is reduced to a sham, farce or mockery of justice, permitting the proceedings to continue will constitute a denial of due process. United States v. Maroney, supra; Wilson v. Phend, 417 F. 2d 1197 (7th Cir. 1969); United States v. Ragen, supra. See also, Cardarella v. United States, 375 F. 2d 222 (8th Cir. 1967); Cross v. United States, 392 F. 2d 360 (8th Cir. 1968); Commonwealth v. Maroney, 427 Pa. 599, 235 A. 2d 349 (1967); Peyton v. Ellyson, supra. It then becomes the duty of the state to intervene to see that the essential rights of the accused are preserved. Lunce v. Overlade, supra; State v. Keller, 57 N. D. 645, 223 N. W. 698, 64 A. L. R. 434 (1929); United States v. Handy, supra. It has been said that the constitutional right to counsel invokes the protection of the trial court. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

In this case, evaluation of the effectiveness of appellants’ trial counsel presents no difficulty. The record is clear that both the judge and the prosecutor were shocked by this attorney’s condition. The postconviction finding by the circuit judge, who was also the trial judge, that this attorney was in such condition that he was a disgrace to the legal profession and degrading to our system of justice is tantamount to a finding that he was so incompetent, on that occasion, that the trial was reduced to a mockery of justice. The judge, after strict surveillance of the lawyer’s demeanor, felt compelled to take some action, before submitting the case to the jury. Appellants are clearly entitled to relief if their acquiescence in continuing the trial did not constitute a waiver of their right to effective assistance of their counsel.

It is to be remembered that at this point the instructions to be given the jury had not been settled, and arguments of counsel would soon begin. Obviously, there was a serious question in the minds of both the prosecuting attorney and the judge as to the fairness of the trial up to this point. After the showing made on behalf of appellants, in the present proceeding, the burden' rested upon the state to show that there was a knowing, intelligent waiver by appellants, based upon adequate warning as to their rights. Jackson v. State, 249 Ark. 653 (1970), 460 S. W. 2d 319. The determination whether there was such a waiver depends upon the particular facts and circumstances of the case, including the background, experience and conduct of the accused. Jackson v. State, supra. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Glasser v. United States, 315 U. S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), reh. denied, 315 U. S. 827, 62 S. Ct. 629, 86 L. Ed. 1222 (1942.

We have previously outlined the essential requisites of a waiver in adopting and applying its definition found in Corpus Juris. It is: “*** the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefits; or such conduct as warrants an inference of the relinquishment of such right, or the intentional doing of an act inconsistent with claiming it. Thus, ‘waiver’ occurs where one in possession of a right, whether conferred by law or contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it.” Sirmon v. Roberts, 209 Ark. 586, 191 S. W. 2d 824. We do not feel that it can be said that the acquiescence of appellants in their continued representation by their retained counsel in this case constituted a waiver. The facts are undisputed, so the question whether there was a waiver is one of law.

We find the evidence insufficient to sustain a finding of waiver as a matter of law. Before we could sustain such a finding, we would have to be able to say that the waiver was knowingly and intelligently made. Jackson v. State, supra. While the record indicates clearly the trial judge thoroughly explained to appellants their right to counsel at their arraignment, there is no indication of any explanation of their rights in the eventuality that was presented during the trial. The only inquiry that was made of appellants was whether they felt that they were properly and adequately represented. There is no indication that they were made aware of any alternative to continuing the trial with that representation.

We do not take the trial judge’s remark that there was nothing he could do to mean that he could not have done otherwise in the absence of appellants’ affirmative responses to the particular inquiry addressed to them separately. That there were alternatives is beyond doubt. In the first place, it is certain that, with the consent or acquiescence of appellants, a mistrial would have been in order. Franklin v. State, 149 Ark. 546, 233 S.W. 688. It also may be proper for the court to declare a mistrial whenever a necessity in the administration of justice arises during the trial demanding action upon the part of the court to safeguard rights of a defendant in a criminal case, even though the defendant declines to object to that which might be prejudicial to him. Martin v. State, 161 Ark. 423, 256 S. W. 367. A plea of double jeopardy would be unavailing in either event. Martin v. State, supra; Franklin v. State, supra. While we have said that the necessity must be an “overruling” one, this case presents just such a situation. The requisite necessity exists whenever it is manifest that the jury must be discharged before rendering a verdict in order to prevent the ends of justice from being defeated. Martin v. State, 163 Ark. 103, 259 S. W. 6. In the case just cited it was pointed out that a contrary holding would require a court to proceed with a trial that the presiding judge knows is not a trial at all, realizing that a conviction could not be permitted to stand. We think that a mistrial would have been in order and that appellants could not have claimed double jeopardy on retrial. But in the present situation, appellants were not advised of this alternative to proceeding with intoxicated coiinsel.

Another alternative, if appellants’ cause was not already irreparably damaged, would have been a suspension of the trial for a reasonable time to permit counsel to be restored to a condition in which he could properly represent his clients in further steps in the course of the trial. This procedure has been held to be proper in other jurisdictions in parallel situations. O’Brien v. Commonwealth, 115 Ky. 608, 74 S. W. 666 (1903); Territory v. Clark, 13 N. M. 59, 79 P. 708 (1905). See also, State v. Keller, 57 N. D. 645, 233 N. W. 698, 64 A. L. R. 434 (1929). While we have not been presented with the exact situation heretofore, this procedure has been approved in cases when dictated by the exigencies of the situation, either with or without the consent of the accused. Brust v. State, 153 Ark. 348, 240 S. W. 1079; McVay v. State, 104 Ark. 629, 150 W. 125. This possibility was not made known to appellants.

In a proper case, prejudice to a defendant might be avoided by the substitution of other counsel. See State v. Keller, supra. The court’s advice to appellants on their arraignment cannot be taken to have made them aware of this possibility when their retained counsel became intoxicated either during or on the eve of the trial.

We are unable to say that there is evidence that appellants knowingly and intelligently waived their right to effective assistance of counsel. In order to say that there was a waiver, it must appear that appellants had full knowledge of their rights and intended to relinquish them. Sirmon v. Roberts, supra; People v. Abetti, 152 N. Y. S. 890 (1914). One cannot be said to have waived that of which he had no knowledge. Carr v. State, 65 Okla. Cr. 201, 84 P. 2d 42 (1938). We cannot say that appellants had adequate knowledge upon which to base a waiver in this case.

It has been suggested that appellants were not prejudiced. The right to counsel has been said to be too fundamental and absolute to permit indulgence in nice calculations as to the extent of prejudice arising from its denial. Glasser v. United States, 315 U. S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); Cross v. United States, 392 F. 2d 360 (8th Cir. 1968). The fact that appellants received the maximum punishment at the hands of the jury enables us to avoid speculation as to the prejudicial effect of their attorney’s conduct and condition, particularly when viewed in the light of the testimony of the jurors and the prosecuting attorney.

Granting a new trial to those against whom evidence of guilt is as overwhelming as it is in this case is always an unpleasant duty. Yet, one of the basic pre1 cepts upon which our system was founded is that even the worst criminal is entitled to his day in court on which he may be heard by counsel. He cannot be effectively heard through one so drunk that his speech cannot be heard or, at best, is incoherent. Clear constitutional rights must be protected for the benefit of all of us, even though it may result in some case that some guilty person may escape punishment. That eventuality seems slight in' this case, where it appears that appellants were caught “red-handed.”

Appellants also contend that they should be relieved of the consequences of their pleas of guilty to other charges after their trial had been concluded. We do not agree. The record discloses that appellants advised the prosecuting attorney of their desire to change their pleas in these other cases. The circuit judge then recalled .to appellants his instructions to them when they were arraigned on these charges as to the nature, elements and penalties relating to these offenses, the presumption of their innocence, right to trial by impartial jury, rights as to self-incrimination, right to counsel, and, if indigent, to appointment of counsel, and the previous appointment of counsel for them. One of the appellants answered clearly stated inquiries by saying that he had no attorney in these cases, that he did not desire to employ one or to have one appointed for him, and that his pleas of guilty were voluntary, and without coercion, threat, promise, abuse or enticement from any person, and without being influenced by his incarceration. The other answered similar inquiries in the same way, except that he had an attorney but did not care to have him present and that he was refusing the assistance of counsel, even though he was mindful of the fact that he could have one appointed by the court if he desired. These appellants clearly waived their right to counsel in these cases. Burch v. United States, 359 F. 2d 69 (8th Cir. 1966).

The contention that being put to trial on information filed by the prosecuting áttorney rather than by indictment violated constitutional rights merits no discussion. Cassady v. State, 249 Ark. 1040 (1971), 463 S. W. 2d 96.

The conviction of appellants of the burglary of the Bank of Chidester is set aside and the case remanded for a new trial. In all other respects the judgment denying postconviction relief is affirmed.

George Rose Smith, Jones and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. The facts in this case remind me of the old adage that you can lead a horse to water but you can’t make him drink. In this instance both the prosecuting attorney and the trial judge did their best to see that petitioners were adequately represented by capable counsel but the petitioners steadfastly clung to their alcoholic lawyer.

During the trial after both the State and defense had rested, the trial court out of the presence of the jury conducted the following proceeding:

“THE COURT: For the purpose of the record, the State has completed its case in chief, and the defendant elected not to put any evidence on the stand, and at declaring a recess, one Mr. Bill Horton approached this bench for the purpose of questioning whether or not in his mind the defendants were receiving a fair and impartial trial due to the representation of the defendants by one Mr. William I. Purifoy, an attorney of Camden, Arkansas. He further related to me that the attorney was drinking at the time and had in his pocket a half-pint bottle of wine. With that in mind, I am not familiar with the procedure that has been outlined to the defendants, but the record reflects that on July 14, 1969, each of you and the defendants now appearing at the bar, were arraigned, at which time you were informed of the nature of the offense against you, the penalties of the offense, the presumption of innocence, and the right to trial by a fair and impartial jury, and your rights of self-incrimination, that is, you do not have to make any statements to any persons whatsoever. You had a constitutional right to remain silent, that further, any statement that you might give could be used against you in the trial of the case, and you had a right to counsel at the time this case became directory or accusatory towards you, or more clearly, at the time of your arrest. Further, that you had a right to an appointment of an attorney by this. Court if you were indigent defendants. At that time the Court appointed Mr. Leonard Smead to represent you, and I entered a plea of 'not guilty’ and set your bonds. Subsequent to that, time, each of you have refused the appointment of Mr. Smead and have now employed Mr. William I. Purifoy to represent you. Is that correct?
MR. FRANKLIN: Yes, sir.
MR. REID: Yes, sir.
THE COURT: Now based on the statement of your brother-in-law to me this morning, are each of you aware of the trial that you are receiving today? Do you feel like you are properly represented in court?
MR. FRANKLIN: Yes, sir.
MR. REID: Yes, sir.
THE COURT: I believe as to the defendant Franklin, do you feel that you are properly represented today in court?
MR. FRANKLIN: Yes, sir.
THE COURT: Adequately represented?
MR. FRANKLIN: Yes, sir.
THE COURT: As to the defendant Reid, are you properly and adequately represented?
MR. REID: Yes.
THE COURT: Then there is nothing I can do. I simply wanted to bring, this to you and your attention with the complaint being made to the Court, and I simply am in accord with good justice, to see that justice is done to you and as well as to the State. Now you have employed this attorney and if you’re satisfied with his services, I have nothing to say. That is all. Thank you.”

At petitioners’ post conviction hearing Mr. John M. Graves, the Prosecuting Attorney, testified on cross-examination as follows:

“Q. Let me ask you — describe for the Court if you would, beginning with the apprehension or whatever points are convenient or suppose just what went on with regard to Reid and Franklin as to how the wheels of justice ground out their result.
A. Well, briefly, as I remember, they were arraigned at which time they were apprehended and arraigned and at which time Judge Grumpier appointed Leonard Smead to represent them. They later advised me that they had retained Mr. Purifoy. There were several discussions with both Reid and Franklin with regards to whether or not they were satisfied with Mr. Purifoy’s representations.
Q. What was the nature of these discussions?
A. At certain times that I discussed it with them they weren’t sure they were satisfied with him representing them. It is my understanding, I believe, that one of their wives had paid Mr. Purifoy and retained him — that I discussed it with them, whether or not they wanted me to go to the Court and ask the Court to appoint them another lawyer.
Q. Did you offer to do this?
A. Yes.
Q. What was their answer?
A. Their answer was that they wanted to have Mr. Purifoy try the case . . . The same as it was during the trial.”

In Fay v. Noia, 372 U. S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), with reference to a post conviction petitioner who might deliberately by-pass the orderly procedure of the state courts, it was said:

“Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. Discretion is implicit in the statutory command that the judge, after granting the writ and holding a hearing of .appropriate scope, 'dispose of the matter" as law and justice require,’ 28 USC § 2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule. Furthermore, habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith v. Baldi, 344 U. S. 561, 573, 97 L. Ed. 549, 558, 73 S. Ct. 437 (dissenting opinion). Among them is the principle that a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable. We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.”

To the same effect see Henry v. State of Mississippi, 379 U. S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965).

Thus when we remember that petitioners were arrested inside the Bank of Chidester in the early morning hours, that a large opening had been cut into a door to the bank vault and that burglarly tools including accetylene bottles and a cutting torch were on the floor of the bank near the vault, it is readily apparent that petitioners had no real defense and that their only hope in demanding a trial was to recéive as small a sentence as possible. Furthermore since petitioners did not elect to testify at their postconviction hearing, the trial court -had every reason to follow Fay v. Noia, supra, and deny them any postconviction relief.

It is only human that the jurors, the trial court and this court would be disgusted with petitioners’ counsel under the circumstances. However, the fact remains that they refused sober and capable counsel appointed by the court and steadfastly clung to their employed counsel notwithstanding that both the prosecuting attorney and the trial court advised them that the effectiveness of their counsel was questioned. Thus, like a horse, they were led to water but refused to drink for reasons known only to them. Consequently the trial court upon the record here properly denied them any relief.

I also concur in Justice Jones’ opinion and the logic thereof is most demonstrable by the proposition that the time to yell rape is when it occurs. The petitioners here did not complain of the adequacy of their representation even after the verdict was brought in, but instead negotiated a concurrent plea of 21 years with the prosecuting attorney on other charges.

For the reasons stated, I respectfully dissent.

George Rose Smith, J.,

dissenting in part. The partial reversal in this case is a costly victory for the appellants. The new trial which the majority have seen fit to award them cannot possibly do them any good, but it may do them a vast amount of harm. That is, the majority reverse the 21-year maximum sentence that resulted from the appellants’ having been represented by a drunken lawyer, but the majority affirm two companion 21-year maximum sentences that were entered upon the appellants’ pleas of guilty to other charges of burglary and grand larceny. What earthly good can a new trial do the appellants? Even if they are acquitted they will be no better off than they are now, with two concurrent 21-year sentences facing them. On the other hand, they may be convicted and given an additional sentence to run consecutively after the other two. Obviously they would be better off if the majority had seen fir to affirm this case in toto instead of reversing it in part. The reversal is actually a Pyrrhic victory that can only enhance the appellants’ bewilderment at the manner in which they are being solemnly treated by the courts.

I think it obvious that the sentences upon the pleas of guilty should also be set aside. Error is presumed to be prejudicial unless we can say with confidence that it was not. That disclaimer of prejudice cannot be made here.

The appellants originally pleaded not guilty to the two additional charges. At the conclusion of the first trial, which the majority correctly treat as a mockery of justice, and on the very day of that trial, the appellants were brought before the judge by the. prosecuting attorney, who stated that the defendants had “advised” him that they would like to change their pleas. The trial judge, who undoubtedly thought the first trial to have been in compliance with the constitution, then went through the motions of informing the defendants of their right to counsel in the other two cases. I find it not at all surprising that the defendants, with the first trial just finished and fresh in their minds, were not greatly impressed by the court’s offer to provide them with yet another lawyer. Certainly we cannot say with assurance that the pleas of guilty were not influenced to any degree whatever by the mock trial to which the accused had just been subjected. *

Moreover, it is equally clear that the trial judge, believing the first maximum sentence to be a valid one, did not mean to impose any additional punishment upon the defendants as a result of their pleas of guilty, for he explicitly directed that all three sentences run concurrently. What else, under heaven, could the trial judge have done? He could not, with a straight face, have imposed lesser sentences, such as five years, to run concurrently with the other 21-year sentence. He did not mean to impose an additional sentence to run consecutively. Hence it is perfectly clear that the trial judge did not intend for the defendants’ pleas of guilty to put them in any worse position than the one they already occupied as a result of their having been represented by a drunken lawyer. How then can the majority say that the declared error in the jury trial had no effect whatever upon the companion sentences? Of course, precisely the same considerations prevailed at the post-conviction hearing in the court below, because when the judge upheld the original jury verdict there was no reason for him to reconsider the companion sentences. In conclusion, I can only say that I am deeply disturbed by the demonstrable injustice and apparent insensitivity to the facts that are apparent in the majority’s decision.

J. Fred Jones, Justice,

dissenting. I would affirm the convictions in this case. The jury had no way of knowing whether Purifoy was employed by the appellants or appointed by the court. Certainly it would appear that the trial judge might have sent the attorney to jail and postponed the trial until he sobered up, but the trial judge was in a better position to view the situation as the events occurred in the courtroom than we are from the record of the events as they appear on the printed page.

The appellants were apprehended halfway through the wall of a vault inside a bank building. They were surrounded by cutting torches and other paraphernalia of the burglary profession including a pistol found inside the hole partially cut through the wall of the vault. There is nothing in the record to indicate that the appellants were b$ow the average in mentality, with the possible exception that they were satisfied with their attorney’s representation. Certainly if a mistrial had been declared and counsel had subsequently been appointed to represent them, the appellants would have had good cause to complain of the denial of their , right to the services of employed counsel.

With nothing in the record to indicate otherwise, I am willing to assume that the appellants were capable of measuring the effect their counsel’s conduct was having on the jury. If the effect of their attorney’s conduct resulted in disdain for the attorney rather than sympathy for the appellants, that is a chance the appellants affirmatively took and insisted upon. The trial judge was in a much better position than we are in evaluating all the circumstances surrounding the trial of this case, including the intelligence of the appellants and their reasoning in proceeding in the trial with Purifoy as their attorney.

I would affirm.

      There is at least an implication in Barnhill v. State, 247 Ark. 268, 444 S. W. 2d 97, that an accused would be entitled to post-conviction relief in such circumstances.

      See Cody v. State, 237 Ark. 15, 371 S. W. 2d 143; Jones v. State, 230 Ark. 18, 320 S. W. 2d 645.