author: Jim Johnson, Associate Justice.

text:
    Coates & Raines v. Great American Ins. Co.
    5-2828
    362 S. W. 2d 438
    Opinion delivered December 3, 1962.

      McMillen, Teague <& Coates, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Jim Johnson, Associate Justice.

This case involves a suit by a general insurance agency against an insurer for services rendered the insurer after notice of termination of the general agency contract had been given.

On October 1, 1952, appellee, tbe Great American Insurance Company, entered into a contract with appellant, Coates & Raines, a partnership consisting of James M. Coates, Sr., Sam P. Raines, and others, wherein appellant was appointed general agent for the State of Arkansas for appellee. Generally stated, the business of appellant is that of an insurance general agent for fire and casualty insurance companies. Under the contract the duties of the general agent were to make agency plants with agents throughout Arkansas in behalf of the insurer, appellee, to solicit business for appellee from local agents, to supervise losses, to underwrite for appellee the business submitted by local agents, and to remit cash balances to appellee whether or not such balance had been collected from the local agents.

Paragraph Eighth of the contract allowed appellant an over-riding commission on net premiums of the business written for appellee in Arkansas through appellant’s activities. This paragraph is as follows:

' ‘ EIGHTH: That the Company will allow the General Agents an over-riding commission of Ten percent (10%) of the net premiums, . . .; it being understood that the words 'net premiums’ wherever used in this agreement means gross premiums less return premiums and premiums for reinsurance effected by the General Agents. ’ ’

According to Paragraph Ninth of the contract, appellee agreed to allow appellant an additional contingent commission. This reads as follows:

“NINTH: That the Company will allow the General Agents as further compensation a contingent eommision of ten (10) percent of the results that obtain from the business written through the General Agency to be computed in the following manner at the close of each calendar year:”
. . . [Here follows a list of debits and credits]
“The debit items shall be deducted from the credit items and the remainder shall be the result upon which the ten (10) percent contingent shall be calculated.”

During the summer of 1958 appellee decided to handle its future business in Arkansas through direct company employees and not through appellant general agency. On July 1, 1958, a vice-president of appellee presented a letter to appellant, Avhich letter complied Avith all the requirements of termination of the agency contract betAveen appellee and appellant under Paragraph Eleventh of the agency contract. Paragraph Eleventh is as follows:

“ELEVENTH: That this agreement is unlimited as to its duration but that it may be terminated at any time by either party giving 90 days’ Avritten notice, in Avhich event the payment of compensation as herein provided that may be found at such time to be due shall be in liquidation of all demands of the General Agents on the Company, and it is expressly understood and agreed that if for any reason the Company shall deem that its interests require termination of this contract, the General Agents are to turn over to it all registers and other records and supplies of the Company in possession of the General Agents; that the General Agents are to make no endeavor to displace the Company from any of the agencies Avhere it may then be located, and in general that the business of the Company is to be turned over to it in its entirety free from any attempt on the part of the General Agents to divert it to other channels, though this clause shall not be understood as preventing the General Agents from planting Avith the agents of the Company at any time the agency of any other company Avhich may be represented by them.”

Subsequent to the termination letter of July 1, 1958, Avhich Avould have the effect of terminating all business relations betAveen appellant and appellee, but prior to the termination date of October 10, 1958, appellee and appellant established a relationship Avhereby appellant Avould Avrite no neAV policies for appellee, but appellant would continue to service all policies of appellee then on their books until the expiration dates of the various policies. Thereafter appellant continued to service the “run-off” business of appellee until the present date and is continuing to service such business. During the year 1959, appellee paid appellant the standard ten percent overriding commission provided in Paragraph Eighth, supra. At the expiration of 1959, appellee refused to pay the contingent commission (Paragraph Ninth, supra) on the underwriting profit, relying on the provisions of Paragraph Ten of the contract, which is as follows:

‘ ‘ TENTH: That the first contingent statement shall cover the period from the date of this agreement to December 31st, 1953. If this agreement should be terminated, contingent statement shall be made at the end of the calendar year in which such termination becomes effective. All losses and expenses for the full calendar year shall be included, and no further contingent statement shall be made nor contingent commission be allowed thereafter.”

On July 19, 1960, appellant filed its original complaint seeking recovery for contingent commission under Paragraph Ninth, supra of the contract. Appellant thereafter amended its complaint, seeking recovery, alternatively, on the basis of implied contract or on the basis of quantum meruit, if the court found — against them on the basis of modified contract.

The Chancellor dismissed the complaint and its amendments, from which appellant appeals. For reversal, appellant generally reiterates his contentions urged in the trial court.

After careful review of the record, we find that the able opinion of the learned Chancellor fairly represents our views. We herewith adopt it as our own. The opinion is as follows:

‘ ‘ I have concluded that the original contract between plaintiffs and defendants was effectively terminated by the notice given by the' defendant in July, 1958. I have also concluded that the subsequent arrangements regarding the ‘run-off’ business does not constitute a modification and extension of the original contract, but rather a different agreement. It is clear from the actions of the parties in paying and receiving the 10% overriding commission that the parties agreed to such payment to the-plaintiffs as compensation for servicing of the ‘run-off’’ business. However, it is my opinion that the provisions; for the contingent commission found in the original contract cannot be incorporated into the new agreement, in the absence of proof of an express or implied agreement to that effect. Nor can the contingent commission be allowed under the theory of a modification of the old agreement, since none of the terms of the old agreement were agreed to remain in force.
“All contingent commissions’ due to the plaintiff under the original contract have been fully paid through December 31, 1958, as provided in that contract. I do not believe that the evidence supports any implied agreement that such contingent commissions were to be paid for the ‘run-off’ business, and certainly there is nothing in the record substantiating an express agreement. In fact, Mr. Coates’ testimony reflects■ that shortly after the arrangements regarding the ‘run-off’ business was negotiated (probably in August, 1958), Mr. Coates raised the question of contingent commissions with an official of the defendant while on a trip to New York. According to Mr. Coates’ testimony, this suggestion was ‘laughed off’ with the remark, ‘Well, you would never earn it. ’ In the face of this testimony, it seems clear that the defendant had neither expressly or impliedly agreed to the continuation of the contingent commissions called for in the original contract, and I find no evidence which would support a finding that the termination rights of the defendant have been modified or waived. Furthermore, Exhibits 7 through 10 [correspondence between the parties] show beyond doubt that again in June, 1959, the defendant was expressly denying its liability for contingent commissions.
“The services performed by the plaintiffs after the termination of the original contract, while substantial and valuable to the defendant, were substantially less than services which had been performed by the plaintiffs under the original contract. The direct and cross-examination of Mr. Coates makes this clear. On cross-examination, when asked by defendant’s counsel to describe the duties of the general agency, Mr. Coates began by reciting duties such as appointing agents, cultivating agents, teaching agents the business, soliciting business, and developing business through the state. It is my finding that these elements of a general agent’s duties are at least as important as the servicing of contracts already written, settlement and investigation of claims, and other activities. It is my opinion that the defendant would not have agreed to pay the same compensation to the plaintiffs for the mere servicing of existing contracts that it had been paying while plaintiffs were performing all of the duties of a general agent. It is my finding that defendant did not agree to do so, either expressly or impliedly.
“During the trial I indicated that I did not believe that the case should be governed by the doctrine of quantum meruit. However, because of the request in the brief of the plaintiffs that the Court reconsider this issue, I have done so. I have accepted as true the testimony offered by plaintiffs to the effect that all general agency contracts normally and ordinarily include a basic commission and a contingent commission computed in accordance with the formulas set forth in the original contract in this case, and that such a contingent commission would be considered reasonable compensation. As a matter of fact, the record reflects that the attorney for the defendant stipulated that this was true as a matter of fact. I have therefore accepted this evidence as admitted and undisputed. It is plaintiffs’ position that these facts require a finding that ‘ reasonable value ’ for plaintiffs ’ services would have to include the 10% contingent commission. I do not agree. In this case the evidence is clear that, after October 1, 1958, plaintiffs were not acting as general agents for defendant in the usual and ordinary way. Therefore, even though this testimony is accepted as true, it is the Court’s finding that fair and reasonable value of the restricted services being performed by the plaintiffs during 1959 would not exceed the 10% overriding commission that plaintiffs have already received. It is, therefore, my opinion that even under the theory of quantum meruit, the plaintiffs are not entitled to recover judgment for any additional amount.
“It will, therefore, be the finding of the Court that plaintiffs are not entitled to judgment and that judgment herein should be entered in favor of the defendant. ’ ’

Affirmed.

Robinson, J., not participating.


source: Caselaw Access Project

author: Neill Bohlinger, Associate Justice.

license: Public Domain

text:
    Brockman v. Rowell.
    5-2801
    362 S. W. 2d 678
    Opinion delivered December 3, 1962.
    [Rehearing denied January 7, 1963.]

      Brockman & Brockman, for appellant.

      Jay W. Dickey, for appellee.
   Neill Bohlinger, Associate Justice.

This case involves a dividing line between Lots 7 and 8, Block 36,. J. W. Monk’s Western Addition to the City of Pine Bluff, Arkansas.

Mrs. E. W. Brockman, Sr., is the holder of record title to Lots 8, 9 and 10 in Block 36 of J. W. Monk’s Western Addition, having acquired the property by deeds from her husband and son, and J. W. Brockman, Sr., her predecessor in title, who had owned the property since 1946.

In 1956 the appellee, Hendrix Rowell, acquired Lots 6 and 7 in Block 36, less that part which had been taken for highway purposes. There appears to have been no dispute as to the original boundary line between Lots 7 and 8, but more than seven years prior to 1956 a fence had been constructed west of the original boundary line dividing the two pieces of property. In 1956 the fence was removed by Rowell or his agents. Mrs. Brockman claims that she, and her predecessor in title, have held the property from the fence east to Lot 8 adversely for more than the statutory period and have thereby acquired title. Three surveys of this property have been put into the record. The first, by J. H. Gould, dated November 15, 1955; a survey by Walter Combs, county surveyor, July 12, i960; and a plat by Chris L. Wright dated March 14,1956. In the Combs survey there is shown an old fence line which is five and one-half feet west of the true dividing line between Lots 7 and 8, but as to this fence line, the county surveyor testified that he did not find the old fence line and had inserted it in the plat at the suggestion of the appellant. The court properly refused to consider that survey. The Chris L. Wright survey appears in more detail than the others.

Lot 7, prior to its acquisition by the appellee, had been owned by Susie Hamilton. Susie Hamilton had a fence that was close to the fence which the appellant’s predecessor in title had constructed to mark the west line of Lot 8. It appears that Susie Hamilton, while still the owner of Lot 7, built a garden fence next to appellant’s fence using small oak posts. She asked permission to attach her fence to the west side of the fence which the appellant had constructed and that appears to have been done. This is the fence line which appellees’ witness, Wright, identified and showed on his plat as running parallel with the true property line and one foot west of that line.

The chancellor found that Brockman had a fence which was one foot west of the true property line and that the owner of Lot 7 acquiesced in that as a true line. We have frequently held that when adjoining land owners acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary line by acquiescence. Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490. See also Carney v. Barnes, 232 Ark. 549, 338 S. W. 2d 928.

In the very recent case of Palmer v. Nelson, opinion November 12, 1962, we had a case involving an agreed boundary and this language was used:

“When adjoining land owners acquiesce for many years in the location of a fence as the visible evidence of the line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence.”

The record leaves no doubt that Hamilton and Brock-man agreed on that line and each put the fence at the agreed spot and the proof further supports the contention that thereafter Brockman continued in possession, of that one foot strip of land on the east side of Lot 7 adversely. The finding of the chancellor on this point is. correct and is affirmed.

The appellant has asked damages for trespassing-on her property at various times but there is no showing-as to who trespassed, for how long, or any damages which, the appellant sustained thereby if a trespass was made. Therefore, the court was correct in refusing damages for-the trespass alleged by the appellant.

The court’s action in dismissing as to the Arkansas. Power and Light Company and Southwestern Bell Telephone Company is also affirmed.

Harris, C. J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Coulter v. Payne.
    5-2821
    362 S. W. 2d 446

    Opinion delivered December 10, 1962.

      Gentry & Gentry, for appellant.

      L. B. Smead and W. C. Medley, for appellee.
   Carleton Harris, Chief Justice.

Harris Brothers, a partnership, was engaged in the mercantile business in Calhoun County, and had acquired a considerable acreage of farm and timber lands. The acreage herein involved was owned by Harris Brothers at the time the partnership was adjudged a bankrupt in January, 1932. In July, 1933, the trustee in bankruptcy, in compliance with orders of the referee, sold the lands, at private sale, to E. W. Prothro; in August, Prothro conveyed the lands to Murray "Whitfield Coulter and George Prothro Coulter (one and three years old respectively at the time), the deed being recorded in August, 1940. However, on June 13, 1932, the lands were sold to the State of Arkansas by the Collector of Calhoun County for the taxes assessed for 1931. The lands not being redeemed, the Collector of Calhoun County, on November 22, 1934, certified said lands to the State of Arkansas. On November 27, 1935, the Commissioner of State Lands conveyed same to appellee, George Payne. Testimony reflects that Payne went into possession, fenced the lands in January, 1936, and farmed same from 1936 through 1938. According to the evidence, Payne has paid the taxes each year since the purchase.

Appellants instituted this suit in 1952, praying that title be quieted and confirmed in them, alleging inter alia that the “sale was void for the further reason that the certificate of the County Clerk, certifying to the publication of the notice of the sale, was made on the day of the sale and not before the day of the sale. ’ ’ The trial court, on hearing, dismissed the complaint on two grounds, one being that the failure of the clerk to attach his certificate to the delinquent tax list before the date of sale was a mere irregularity, and had been cured by Act 142 of 1935, which act was in effect at the time the property was conveyed by the state to appellee. Prom the decree dismissing appellants ’ complaint, comes this appeal.

Appellants’ sole effort in this appeal is directed to the proposition that this court should overrule the case of Coulter v. Anthony (decided in November, 1957), 228 Ark. 192, 308 S.W. 2d 445, which case, appellants contend, overrules numerous prior decisions of this court. In Coulter v. Anthony, we held that the clerk’s failure to execute his certificate showing the publication of the notice of the tax sale until the day of sale (rather than before the sale, as required by the law) was a mere irregularity, which was cured by Act 142 of 1935. Incidentally, the lands here in question, were sold in the same 1932 tax sale as the lands involved in Coulter v. Anthony. Act 142 of 1935 provided,

‘ ‘ Whenever the State and County Taxes have not been paid upon any real or personal property within the time provided by law, and publication of the notice of the sale has been given under a valid and proper description, as provided by law, the sale of any real or personal property for the non-payment of said taxes shall not hereafter be set aside by any proceedings at law or in equity because of any irregularity, informality or omission by any officer in the assessment of said property, the levying of said taxes, the making of the assessor’s or tax hook, the making or filing of the delinquent list, the recording thereof, or the recording of the list and notice of sale, or the certificate as to the publication of said notice of sale; provided, that this Act shall not apply to any suit now pending seeking to set aside any such sale, or to any suit brought within six months from the effective date of this Act for the purpose of setting aside any such sale.”

Though repealed in 1937, the act was in full force and effect at the time Payne purchased the lands in question from the state.

Appellants’ argument that Coulter v. Anthony overruled numerous cases is erroneous, for if the cases cited in their brief were overruled, such ‘ ‘ overruling” occurred back in 1937, when the leading case of Carle v. Gehl was decided. See 193 Ark. 1061, 104 S. W. 2d 445. There, we held that various requirements of the statute (such as the publication of the notice of sale) are jurisdictional essentials, but that the legislature had the power to dispense with certain other requirements. Failure to perform the latter was held to be a mere irregularity, cured by Act 142. The court said,

‘ ‘ Beyond question it is within the power of the Legislature to provide for the rules by which the foregoing exercise of power may be made both as to time and form, and, having the power in the first place to make such rules, indubitably the Legislature has the power to alter or dispense with the same. Act No. 142 merely provides that irregularities in the assessment or levy should not be ground for setting aside the tax sale. The same provision is made for irregularities in making and filing a delinquent list, the recording of the list and notice of sale or of the certificate of the publication of said notice As all of these requirements might have been dispensed with in the first instance, sales which otherwise would have been invalid for errors or irregularities in these respects are within the power of the Legislature to cure and validate. ’ ’ As to appellants’ argument that the court has overruled numerous cases, we cite further language in Carle v. Gehl which directs itself to that argument:
“It is suggested in argument that the above quoted statute was in excess of the power of the Legislature in that its effect was to destroy a vested right and to strike down meritorious defenses as that term has been defined by this court. Learned counsel for appellee, in their excellent brief, argue that this is the only logical conclusion to be reached based on the decisions of this court which, they contend, announce the doctrine that where a tax sale is invalid for any irregularity, informality, illegality or omission on the part of any officer having any duty to perform in connection with the tax proceedings or tax sale, such are meritorious defenses beyond the power of the Legislature to validate even though the requirement, failure to comply with which, constitutes the irregularity, illegality or omission of duty rendering the sale invalid, could have been dispensed with by the Legislature in the first instance.
“The argument made based on our cases, which are cited, is a logical and persuasive presentation of the position taken. It demands and has been given respectful and thorough consideration, but does not convince us of its correctness. We think this view is based largely upon the inaccurate use of the word ‘ ‘ void ” f or “ voidable ’ ’ in many of our decisions. In some of these cases the causes for which tax sales were set aside were palpable irregularities, such as the collector’s certificate or affidavit being signed by a deputy sheriff instead of a deputy collector which irregularity could work no real injury to the land owners, and which, in no sense, could be deemed to be a meritorious defense. When the distinction between those omissions or acts which render the sale voidable only and those which are of that gravity which make the sale void is kept in mind, it seems that the effect of our decisions is that to constitute a meritorious defense to a tax sale there must be some act or omission to deprive the former owner of some substantial right. ” ............

Some six months later, in the case of Wallace v. Todd, 195 Ark. 134, 111 S. W. 2d 472, the exact point here at issue was decided adversely to appellant’s position. There, we said,

“There is no merit in appellant’s contention that the clerk failed to record the list of delinquent lands returned by the collector and failed to make the certificate of publication of the delinquent list before the day fixed for the sale.
“Even if it should be conceded that the matters set out in the complaint, with respect to which proof was offered, were of such a nature as to invalidate the sale under authority of numerous decisions of this court, the fact remains that these were merely irregularities or informalities, such as Act No. 142 of 1935 was intended to cure.”

It is thus apparent that the view expressed in Coulter v. Anthony was but a reiteration of decisions rendered 20 years earlier. As stated in Anthony,

“The exact point now presented was decided in Wallace v. Todd, 195 Ark. 134, 111 S. W. 2d 472, and, in harmony with the reasoning in the Carle opinion, it was held that the clerk’s failure to make the certificate before the day of sale is an irregularity cured by Act 142. A contrary view was expressed, in a paragraph unnecessary to the decision, in Union Bk. & Tr. Co. v. Horne, 195 Ark. 481, 113 S. W. 2d 1091, but we regard the Carle and Wallace cases as sound and adhere to them.”

We take this occasion to reiterate that view.

It is true that, some years back, we held in a number of cases that the failure of the clerk to attach his certificate before the sale was a meritorious defense, and in a few cases we used the term, “jurisdictional”. However, practically all of these cases were either decided before the passage of Act 142 of 1935, or the provisions of that act were not at issue. In fact, we know of only one case wherein Act 142 was applicable, which seems to hold contrary to the view herein expressed. This was the case of Union Bank and Trust Company v. Horne, heretofore mentioned in the quotation from Coulter v. Anthony. In that case, the belated making of the certificate was given as an additional reason for holding a tax sale invalid. Though the Carle v. Gehl decision pointed out that erroneous language had been used in some cases, we now emphatically state that, in any ease that may arise, wherein this provision of the now repealed Act 142 of 1935 is pertinent, the fact that the clerk failed to certify to the publication of the notice of sale before the day of sale, cannot be relied upon as a defect which will, under any of our decisions, void such sale.

Affirmed.

       The first ground related to the failure of appellants to deraign title from the United States Government, but counsel for both sides agreed in open court that this question is no longer pertinent to a determination of this litigation.

       Emphasis supplied.

       Emphasis supplied.


author: Ed. F. McFaddin, Associate Justice.

text:
    Dickson v. Wolfe.
    5-2837
    362 S. W. 2d 427
    Opinion delivered December 10, 1962.

      Clifton Bond, for appellant.

      D. A. Clarke, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellants filed this suit, seeking to reform a deed they had executed to the appellees on August 10,1959. After a lengthy hearing the Trial Court denied the prayed relief, and this appeal resulted.

In 1958 Mr. and Mrs. Wolfe purchased from Mr. and Mrs. Dickson for $1,500.00 a portion of Lots 9 and 10 in Block 104 of the City of Monticello. Mr. Dickson died intestate on February 5, 1959; and on May 5, 1959 Mrs. Dickson, for $500.00, conveyed to the Wolfes an additional portion of said Lots 9 and 10. When it was discovered that there were errors in the descriptions in the previous deeds and also that Mrs. Dickson had only a life estate in the property she had conveyed, Mrs. Dickson, joined with the other heirs of Mr. Dickson, executed the August 10, 1959 deed to the Wolfes. On December 9, 1959 the Dicksons (grantors in the August, 1959 deed) filed this suit, claiming that the said deed conveyed more property than was intended; and that there was either a mutual mistake or that the Wolfes had acted fraudulently.

The testimony on the part of the plaintiffs was that the May 1959 deed, as well as the August 1959 deed, included “a strip of land approximately 15 feet wide off of the north side of the property belonging to the plaintiffs, and inside and south of the boundary fence, ’ ’ which was not intended to be conveyed. The plaintiffs claimed that it was agreed that the fence would be the boundary of the conveyed property, but that the deed conveyed a strip fifteen feet wide inside the fence. The testimony on behalf of the defendants was: that they bargained for a thirty-foot strip; that they had it surveyed and described; that the deed was properly prepared; that the description of the property was read to the plaintiffs before they signed the deed; and that there was no mistake.

After hearing all the evidence, the Chancellor delivered a written opinion, from which we copy:

“This action, as the usual reformation action, turns on the burden of proof. The rule is: the plaintiffs having executed and delivered the deed to the defendants — title having passed — ‘the burden of establishing grounds for reformation rests on the plaintiff’ (Glasscock v. Mallory, 139 Ark. 83). A preponderance of the evidence alone is not sufficient to reform a written instrument (Hicks v. Rankin, 214 Ark. 77). ‘It is well settled by our decisions that before the jurisdiction of equity may be invoked to reform a written instrument by parol evidence, the proof must be clear, unequivocal and decisive’ (Smith v. Olin Industries, 224 Ark. 606). It is not necessary that the testimony be undisputed to reform a deed, ‘It suffices if the testimony, in its entirety, clearly shows that a mutual mistake was made’ (Meekins v. Meekins, 168 Ark. 654).
“In explaining the meaning of the rule of ‘the proof must be clear, unequivocal and decisive, ’ the court said in Hicks, Special Adms. v. Rankins, 214 Ark. 77: ‘ ... in the early American case, October term 1830, United States v. Munroe, 5 Mason’s Rep. 577, Fed. Cas. No. 15,835, Judge Story, speaking for the court, said: “In cases of asserted mistake in written instruments, it is not denied that a court of equity has authority to reform the instrument. But such a court is very slow in exerting such an authority, and it requires the strongest and clearest evidence to establish the mistake. It is not sufficient that there may be some reason to presume a mistake. The evidence must be clear, unequivocal and decisive; not evidence which hangs equal, or nearly in equilibrio.’ ”
‘ ‘ The evidence necessary to impeach the solemn recitations of the deed must be clear and convincing. As was said in Bevens v. Brown, 196 Ark. 1177, 120 S. W. 2d 574: ‘It must be so clear that reasonable minds will have no doubt that such an agreement was executed. It must be so convincing that serious argument cannot be urged against it by reasonable people.’ Tested in the light of this rule, we do not believe the purported agreement should have been accorded that high degree of verity which must attach to alleged verbal reservations or conditions in order to overthrow solemn recitals of a deed. Business transactions must have finality. Conveyances must not be exposed to the caprice of parol, nor explained away by less than that quantum of evidence which essentially attains the dignity of clarity, impressing convictions.”

The Chancellor then concluded:

“It is found that when the testimony in this record is weighed in the scales of justice that the scales stand in equipoise. This is to state that there is evidence of equal weight, strength and degree on either side. Thus under the rules relating to the burden of proof the complaint of the plaintiffs should be dismissed on this issue.”

We have carefully studied the testimony, and we adopt as our own the quoted statements from the Chancellor’s opinion. The plaintiffs did not establish any part of their case by the required quantum of proof. Certainly on appeal we cannot say that the finding of the Chancery Court is against the preponderance of the evidence.

Affirmed.


author: George Rose Smith, J. Jim Johnson, Associate Justice,

text:
    Ark. State Hwy. Comm. v. Rich.
    5-2826
    362 S. W. 2d 429
    Opinion delivered December 10, 1962.

      Dowell Anders and Barrett, Wheatley, Smith é Deacon, for appellant.

      Spears & Sloan and Hale S Fogleman, for appellee.
   George Rose Smith, J.

This is a condemnation proceeding in which the State Highway Commission was compelled to deposit in court a great deal more money than the jury later found the land to have been worth. The landowners had the use of the excessive deposit for more than two. years. This appeal is from a judgment holding that the landowners are not liable to the State for interest during the time they had the use of the State’s money.

The facts are simple. On August 18, 1958, the Highway Commission brought suit to condemn 50.454 acres of the appellees’ land, filed a declaration of taking, and paid into court the sum of $69,500 as estimated compensation and damages. On motion of the landowners the circuit court, after a hearing, directed that the deposit be increased to $544,000. The commission complied with the order on January 1, 1959, and on the following day the landowners were allowed to withdraw the entire sum of $544,000. The case was not tried on its merits until July 10,1961, when the jury fixed the award to the landowners at $325,000.

In entering judgment upon the verdict the court charged the State with interest in the total sum of $7,-858.25. This amount was arrived at by adding two items: (a) Interest at 6 per cent upon the entire $325,000 valuation from the date of the commission’s entry upon the land (which was about a month before suit was filed) until the date of the commission’s deposit of $69,500 in court, and (b) interest at 6 per cent upon the value of the land less the $69,500 deposited, computed from the date of the first deposit until the date on which the landowners withdrew the whole-$544,000.

On the other hand, as we have said, no interest charge was made against the landowners for their use of $219,-000 of public funds (the excess of the withdrawal over the value of the land) for a period of some thirty-one months. At the rate of 6 per cent per annum the use of the State’s money was worth more than $32,000 to the landowners.

In seeking to defend the inequality that is inherent in the trial court’s judgment the appellees make two principal arguments.

First, it is pointed out that the State is liable for the payment of interest in any event, because an award of interest is required by the constitutional guaranty of just compensation when there is a delay between the time of the taking and the time of the payment for the property. Ark. State Highway Comm. v. Stupenti, 222 Ark. 9, 257 S. W. 2d 37. In fact, the statute under which the action at bar was filed recognizes the State’s liability for interest, Ark. Stats. 1947, § 76-536, but this clause was evidently inserted merely as a necessary introduction to the declaration that interest is not to be allowed to the landowner upon sums paid into court. We are unable to agree with the appellees in their attempt to interpret the legislature’s casual reference to the State’s undoubted duty to pay interest as a positive declaration that the landowner has no similar duty. To the contrary, the controlling section of the act, providing for judgment either for or against the State, makes no mention of interest in either case. Ark. Stats., § 76-537.

The landowners, unlike the State, are not under a constitutional compulsion to pay interest. Hence, the argument runs, they are exempt from liability under the rule that interest is not ordinarily payable upon an unliquidated demand, there being no default until the exact amount due has been determined.

In the circumstances before us this argument is not sound. The rule against paying interest upon an unliquidated demand is not inflexible. This point was discussed in Loomis v. Loomis, 221 Ark. 743, 255 S. W. 2d 671, where we said: “Yet when the defendant is actually in default there are many instances in which interest is allowed even though the precise extent of his liability is not determined until the trial. For example, a defendant’s liability for breach of a contract to pay a definite sum of money may be uncertain, for the default may have saved the plaintiff the expense of full performance on his own part, and that saving may be a matter for the jury to determine. In spite of this uncertainty interest is recoverable from the date of the breach.’’

An analogous situation was considered in City of Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S. W. 2d 474, where the telephone company, after having put into effect a rate increase later found to have been excessive, was required to pay interest from the date of each overcharge rather than from the date when the exact extent of the excess was determined. We reasoned that “the utility should not have the benefit of the free use of the subscribers’ money, when such use came about through the utility’s own effort.”

In like manner these appellees ought not to have the free use of the State’s money after having compelled its payment only by the assertion of a claim based upon an exaggerated idea of their losses. If the appellees’ view of the law should prevail it would inevitably result in encouraging landowners to present exorbitant claims against the State in condemnation cases. (Counsel for the appellees quite properly make no particular point of the fact that in this instance the landowners’ damages may have been reduced by a change in plan that the commission adopted after the amount of the additional deposit had been fixed by the court. It appears that the commission, before complying with the court’s order, unsuccessfully sought to have the court reconsider the matter in the light of the new plan.)

Secondly, the appellees rely upon a number of decisions from other jurisdictions, holding that the landowner is not required to pay interest after having had the use of an excessive deposit in a condemnation proceeding.

All the cases cited are easily distinguishable, for in none of them did the landowner obtain the excessive deposit through his own efforts. For instance, in a representative case, City of Atlanta v. Lunsford, 105 Ga. App. 247, 124 S. E. 2d 493, the amount of the condemnor’s deposit was fixed by three independent assessors. The court, in holding that the property owner was not bound to pay interest when the jury’s valuation proved to be smaller than that of the assessors, pointed out that otherwise the condemnor would be able to force the landowner to accept an involuntary loan.

Here the transaction bears no resemblance to an involuntary loan, for the appellees took the initiative in the matter, demanding that the amount of the deposit be increased and adducing proof to sustain their claim. Upon these facts we cannot in good conscience hold that the appellees are entitled to profit by their own error. Yet that would be the result if they were permitted to use almost a quarter of a million dollars of public funds, interest free, for more than two and a half years.

The judgment is reversed and the cause remanded for the entry of a judgment charging the appellees with interest at the rate of 6 per cent per annum in accordance with this opinion.

Bohlinger, J., not participating.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. Article 2, § 22 of the Constitution of the State of Arkansas is as follows:

‘ ‘ The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”

Based on this provision of the Constitution, this court has held that advance payment is required as a condition precedent for taking land under an eminent domain proceeding. Arkansas State Highway Commission v. Partain, 192 Ark. 127, 90 S. W. 2d 968.

Following the opinion in the Partain case, supra, the legislature in 1953 enacted Act 115 which provided, inter alia, as follows:

“§ 76-536. Title vests upon making deposit. Immediately upon the making of the deposit provided for in section 5 (§ 76-538), title to the said lands in fee simple (or a conditional fee if mineral rights are sought to be preserved to the property owner) or such lesser estate or interest therein as is specified in said declaration, shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein and said judgment shall include as a part of the just compensation awarded, interest at the rate of six per cent (6%) per annum of the amount finally awarded as the value of the property, from the date of the surrender of possession to the date of payment, but interest shall not be allowed on so much thereof as may have been paid into court. No sum so paid into court shall be charged with commission or poundage.”

This act contained no emergency clause and before the effective date thereof this court on April 20, 1953, delivered its opinion in the case of Arkansas State Highway Commission v. Stupenti, 222 Ark. 9, 257 S. W. 2d 37, wherein it was held that:

‘ ‘ Just compensation means full compensation. While the real loss to appellee might well be described as the denial of the use of his land for the time stated, yet the universally recognized rule for measuring this loss is by calculation of interest on the value of the land. ’ ’

The conflict between Act 115, supra, and the Stupenti case, supra, seems to be irreconcilable. The act provided “interest shall not be allowed on so much thereof [amount of judgment] as may have been paid into court”, and the opinion in Stupenti provides, “Just compensation means full compensation” and in that opinion this court in determining that interest was due the landowner quoted from Jacobs et al. v. U. S., 290 U. S. 13, 54 S. Ct. 26, 78 L. Ed. 142, as follows:

‘ ‘ The owner is not limited to the value of the property at the time of the taking; ‘he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking’. Interest at a proper rate ‘is a good measure by which to ascertain the amount so to be added’.”

and further in the Stupenti case this court, in rejecting the argument that interest, if any, should run only from the date of entry (May 5, 1950) to the date when appellant made its deposit into the registry of the court, said, “This, of course, would result in no interest at all since the deposit was made March 27, 1950.. In all events the proper date from which interest should be computed is the date of entry. ” It is apparent therefore that this court has determined that a property owner is entitled to interest from the date of entry as a part of his just compensation regardless of whether the proper amount has been placed in the registry of the court, and that such deposit does not relieve the condemnor from payment of such interest since the interest payment is not considered interest as such but a part of the land owner’s just compensation.

In the case at bar we have a landowner who felt that the $69,500 deposit made by the condemnor was grossly inadequate and in proper manner petitioned that the state be required to increase its deposit. After a hearing on the petition, the trial court in its sound discretion found that the deposit should be increased to $544,000. After this increase was ordered the Highway Commission changed its plans for the construction of the proposed highway, providing for additional access to the balance of appellees’ property, thereby diminishing materially the prospective damage to the balance of appellees’ property. The trial court, avoiding a multiplicity of suits, again in its sound discretion, refused to allow the Highway Commission to reopen the case for the purpose of showing the changes in plans which would have diminished the prospective damage and no doubt would have justified a smaller deposit. Certainly it cannot be said that the trial court abused its discretion in refusing to reopen the case. If this were not so, then there would be no end to the litigation which would result from every change the Highway Commission might decide to make following a judicial determination of the amount of a deposit.

Upon trial of the case, based on the changed plans, a jury found appellees’ damages to be $325,000, which amount, even after the plans were changed, is a far cry from the $69,500 the Highway Commission originally placed in the registry of the court which was supposed to be its estimate of the damages which would have been sustained by the landowners. In fact, it is not denied that under the terms of Act 115, the action of the landowner in petitioning for an increased deposit saved the State $38,131.75 in interest alone, not counting the windfall of $32,000 additional this court is allowing the State by the majority opinion. If the amount of interest due the landowner could be calculated under the plain language of the Stupenti case, supra, then the saving to the State caused by this landowner’s petition would be almost twice the $38,131.75 saved under Act 115. Yet the majority opinion says, “If the appellees’ view of the law should prevail it would inevitably result in encouraging landowners to present exhorbitant claims against the State in condemnation cases.” To the contrary, it appears to me that the healthy result would be to cause the State to make a deposit which more nearly represents the true value of the damage which might be sustained by the landowner who is being compelled to sell his land to the State against his will Particularly is this true if it can be said that the portion of Act 115 which prohibits payment of interest on amounts deposited in court is constitutional.

The majority does not cite one single condemnation case to support its conclusion, but instead dismisses the excellent cases cited by appellees with the remark that they are distinguishable, “for in none of them did the landowner obtain the excessive deposit through his own efforts ”. In my view this is a distinction without a difference, since the principle in all of these cases remain the same. Uniquely under our law the trial court is permitted to order an increase in the amount of a deposit if it can be shown that the amount deposited is inadequate. This is not an ex parte proceeding whereby the landowner is the only party heard, but instead the State has the right to be heard and offer evidence of the correctness of the amount of the deposit. After a full hearing the trial court, in the case at bar, correctly determined from the evidence that the deposit was grossly inadequate and should be increased. Now this court by the majority view is saying that the landowner should be penalized because the trial court failed to determine exactly the amount of damages a jury would assess, and as above set out, the final trial was held on a set of facts which did hot obtain at the hearing on the motion to increase, dne to the change in plans made by the Highway Commission. Suppose the trial court had granted the condemnor’s motion to reopen the case and offer evidence of its change of plans and after a full hearing determined that the amount of the deposit should have been reduced. Would not the majority view require that the landowner pay interest on the excess for the period of time such excess had been deposited? To ask the question is to answer it. Under our system the landowner had no more control over whether the Highway Department would change its plans than he had over the amount the trial court found to be an adequate deposit. Nor does the landowner have any control over the amount the condemnor chooses to voluntarily deposit. Would not the majority view also apply to a situation whereby the condemnor on its own volition deposited an amount in excess of the ultimate judgment?

The majority in rejecting the logic of the Georgia Court of Appeals in City of Atlanta v. Lunsford, 105 Ga. App. 247, 124 S. E. 2d 493, chose to discuss only the involuntary loan aspect of the court’s reasoning. This is not the strongest case cited by appellees. See New York Elevated Railroad Co. v. Story, 8 N. Y. State Reports 431, 44 Hun. 177; St. Louis K. & NWR Company v. Knapp, Stout & Co., (Mo.), 61 S. W. 300; Kelly et al. v. Okla. Turnpike Auth., 269 P. 2d 359; Maddox v. Gulf, Colo. S S. F. Ry. Co., (Tex.), 293 S. W. 2d 499. In fact it is the only case cited in which the proposition of an involuntary loan is discussed and to say the least, I agree with the court’s logic in its entirety.

The Georgia statute is not identical with ours but in my view it cannot be distinguished in meaning and effect. I quote at length from the Lunsford case, supra, as follows :

“No mention of interest is made in Code Section 36-603, which is the section applicable here. It simply provides that, in the event the final judgment fixing the amount to be paid for the land taken is less than the amount of the award of the assessors, the condemnee shall be bound to refund any excess paid to or received by him.
“The law allows interest only because of a contract, express or implied, for its payment, or as damages for the detention of money, or for breach of some contract, or the violation of some duty. It is very generally stated that interest, being of purely statutory origin and not the creature of the common law, shall not be awarded except in such cases as fall within the terms of the statute, unless it has been contracted for either expressly or impliedly. In other words, there is no absolute right, independent of contract, express or implied, or of statute, to interest. Best v. Maddox, 185 Ga. 78, 194 S. E. 578; Accord, Irons v. Harrison, 185 Ga. 244 (8), 194 S. E. 749; Gormley v. Eison, 189 Ga. 259, 5 S. E. 2d 643. This principle has been applied specifically to a condemnation proceeding such as we here deal with. St. Louis K. & N.W.R. Co. v. Knapp, Stout & Co., 160 Mo. 396, 61 S. W. 300.
‘ ‘ Certainly there is no express contract on the part of the condemnee to pay interest on any amount, nor do we find any basis for holding that there is any implied contract on his part to do so. The amount of the assessors’ award is required to be paid by the condemnor, and it is made available to the condemnee from the time of such payment under the provisions of Art. I, Sec. Ill, Para. I of the Constitution of 1945 (Code Anno. Sec. 11-301) which provides that just compensation must be ‘first paid.’ State Highway Department v. Hendrix, 215 Ga. 821, 113 S. E. 2d 761. The condemnation proceeding is, as to the condemnee, involuntary. If the amount of the award was not made available to the condemnee before the taking of his land, it would result in his being deprived of the use of his land and the money which the assessors have determined to represent just compensation therefor until a final judgment could be obtained. Often there is considerable delay between the time of the assessors’ award and the trial before a jury. At any time the condemnee takes his money down, it is only natural that he has hope that the amount of the jury verdict will be equal to or in excess of the amount of the assessors’ award. Neither the condemnor, the condemnee, nor the court can know what the result may be, thus none can know until final judgment the amount that must finally be paid and accepted as just compensation. Condemnee is not and cannot be bound to refund any amount until final judgment. Thus it would strain credulity to say that there is any contractual obligation on his part to pay any amount until that time. Interest does not begin to run on an obligation until it is due and payable, in the absence of some contractual or statutory provision to the contrary. Approval of the contention of the city that interest should run on the excess from the time of payment of the award into the registry of the court, or even from the time of the withdrawal thereof, by the condemnee, would amount to holding that the city was authorized to require the condemnee to accept an involuntary loan, amount of which was indefinite and not determinable until some future date when a final judgment might be obtained, and at ‘lawful interest’ or 7 percent per annum, a rate over which the condemnee could have no control.
“Interest eo nomine can only be recovered from the date when the amount of the claim has been liquidated and determined. Insurance Company of North America v. Folds, 42 Ga. App. 306, 155 S. E. 782, and see 29 C. J. S. Eminent Domain, Sec. 333, page 1386.
“It is urged that, since the General Assembly has provided for. the payment of interest by the condemnee on such excess amount in a special master proceedings (Ga. L. 1957, page 387, 396, Code Anno, Section 36-615a), a public policy has been adopted which we should apply uniformly both here and in the ‘Three Assessor’ type of proceedings. We do not agree. Each type of proceeding is statutory, and each must be had, governed, and determined by the terms of its respective, statute. Further, provision for payment of interest by the condemnee on the excess or the difference between the amount of a special master’s award and the amount of the final judgment has not yet been tested as to its constitutionality. There is room, we think, for grave doubt that the provision will stand a constitutional test.
“Counsel for the city urged that, since it has been held, in State Highway Board of Georgia v. Warthen, 54 Ga. App. 759, 189 S. E. 76; Gate City Terminal Company v. Thrower, 136 Ga. 456, 71 S. E. 903; Central Georgia Power Company v. Stone, 142 Ga. 662, 83 S. E. 524, that when the amount of the award has been increased by the final judgment the condemnee is entitled to interest on the amount of the increase from the time of the taking of the property, it would be unfair .to hold that the city is not likewise entitled to interest on the excess when the amount of the award has been decreased. Again, we do not agree. The interest to which the condemnee is entitled flows from the constitutional guaranty of his just compensation to the condemnee for his property. Seaboard Airline R. R. Co. v. United States, 261 U. S. 299, 43 S. Ct. 354, 67 L. Ed. 664; Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 44 S. Ct. 471, 68 L. Ed. 934; Reed v. Chicago-Milw. & St. Paul R. R. Co., 25 F. 886.
‘ ‘ Of course, when the final judgment is obtained and the amount that condemnor is required to pay as just compensation is thus finally determined, if there is excess between the amount of the judgment and the assessors’ award, both the amount thereof and the obligation to refund by the condemnee has become fixed. Thus it is proper for the court to provide, in this judgment as in other judgments, for the payment of interest thereon from the date of the judgment, and at the lawful rate of 7% per annum. Code Section 110-304 and 57-108. Judgment affirmed.”

From what has been said and from 29 C. J. S., Eminent Domain, §333 (b), page 1386, wherein it is said, “"Where the award has been paid into court, and the amount finally awarded is less than that deposited, the condemnor is not entitled to interest on the balance; and this is so, it has been held, even though the money deposited was turned over to the landowner,” I respectfully dissent to the majority opinion.

       It must be noted that the Act clearly states the liability of the Highway Commission for interest on an excess of recovery over deposit, but pointedly omits any provision for interest from the landowner.

       A fair offer would tend to minimize the necessity of litigation, a policy of law which is universally applied.


author: George Rose Smith, J.

text:
    Schaefer v. Schaefer.
    5-2848
    362 S. W. 2d 444
    Opinion, delivered December 10, 1962.

      James L. Sloan, for appellant.

      Frances D. Holtzendorff, for appellee.
   George Rose Smith, J.

In 1956 the appellant husband obtained a divorce on the ground of three years ’ separation, but the court found the appellee wife to be the injured party. The decree awarded the appellee custody of the couple’s two children, a one-third interest in the appellant’s personal property, a one-third interest for life in his real property, and possession of the family home in Little Rock (owned by the appellant). The decree directed the appellant to keep the home place ‘ ‘in habitable repair. ’ ’

Last year the appellee filed a petition asking that the appellant be required to make needed repairs to the property. The appellant countered with a request that he be given custody of the children and possession of the homestead. This appeal is from an order changing the custody of the children (who expressed a desire to live with their father) hut leaving the appellee in possession of the home and directing the appellant to pay the appellee $343 for the purpose of putting the property in a habitable condition.

The appellant’s principal grievance is the court’s refusal to give him possession of the homestead. He insists that the original award of possession to the appellee was solely and exclusively a provision for child support. Hence, it is contended, the chancellor’s action in leaving the appellee in possession of the home, after the custody of the children had been transferred to the father, amounted to an original and therefore impermissible award of alimony, since the decree of divorce made no allowance of alimony. Miller v. Miller, 209 Ark. 505, 190 S. W. 2d 991.

The record does not bear out this argument. The divorce decree first recited that “the plaintiff [the wife] and said children” should have the exclusive use of the home. Later on the operative part of the decree awarded the exclusive use of the home to the wife. Thus there is no sound basis for thinking that the original award of possession was not meant to benefit the wife as well as the children.

On the merits we find no abuse of discretion in the chancellor’s refusal to disturb the appellee’s occupancy of the home. It is settled that a decree of divorce may award the possession of the homestead to either spouse, upon such terms as appear to be equitable and just. Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S. W. 2d 576. Here the appellee’s claim, in view of her life estate in the property, has a basis in law as well as in equity. She earns about $4,600 a year, while the appellant’s annual income exceeds $8,000. If the appellee should be evicted from the property then presumably the court would require in substitution that monetary payments be made by the appellant. In view of all the circumstances we are not convinced that the chancellor erred in his solution to a manifestly difficult problem.

The original decree required the appellant to keep the house in repair. There is no substantial contradiction of the appellee’s testimony that this obligation has not been met, for the house is in need of certain specific repairs. The appellee’s proof that the work will cost $343 is defective, however. She submitted only a carpenter’s written estimate, which was properly objected to as being hearsay. The order will therefore be modified to permit the appellee to have the repairs completed, at the appellant’s expense, with the recoverable cost not to exceed $343. Should the appellant consider the actual outlay to be excessive the matter may be resubmitted to the chancellor upon competent evidence.

A minor item of child support, amounting to $57.13, is involved in the appellant’s insistence that the chancellor orally announced that the appellant’s liability for monthly child support payments would terminate on the date of trial, while the written order that was later entered fixed the date as that on which the two children moved to the appellant’s home. The written order is not challenged as being unreasonable, however, and the chancellor was at liberty to reconsider his first conclusion. Nance v. Flaugh, 221 Ark. 352, 253 S. W. 2d 207. The appellant also complains of the fact that the appellee’s attorney was allowed a fee of $100, but in this respect the chancellor’s action was in harmony with the law as it has been declared in this state for many years.

With the indicated modification the order is affirmed.


author: Paul Ward, Associate Justice.

text:
    Cain v. Wood.
    5-2820
    362 S. W. 2d 441
    Opinion delivered December 10, 1962.

      Ivan Williamson, for appellant.

      Caldwell T. Bennett, for appellee.
   Paul Ward, Associate Justice.

Paul Cain, appellant, was the owner of forty acres of land described as the southwest quarter of the southeast quarter of Section 35, Township 13 north, Eange 9 west. He filed a suit against Lee Eackley and P. C. Wood, d/b/a Wood Lumber Company (hereafter referred to as Wood), defendants, to recover triple damages (in the amount of $7,836) for knowingly cutting and removing timber from his land.

In the complaint it was alleged that the defendants “were partners or engaged in a joint venture, or that Lee Eackley was the agent, servant, and/or employee of the said P. C. Wood.” In Eackley’s separate answer he denied the alleged relationship between him and Wood, and also denied owing Cain anything. Wood also denied any such relationship with Eackley or that he caused any timber to be cut on Cain’s land.

During the trial, after all testimony had been introduced, the trial court directed a verdict in favor of Wood. The jury returned a verdict in favor of Cain against Eackley for single damages in the sum of $1,200. Eackley has not appealed, and Cain does not prosecute or urge any appeal from the judgment against Eackley.

Cain, in this appeal, does insist that the trial court erred in directing a verdict in favor of Wood, and we agree. The only question involved is whether Wood’s relation to Eackley was such as to make him liable to Cain, and that is a fact question. Citations are unnecessary to substantiate the well established rule that all fact questions, supported by substantial testimony, must be presented to the jury.

"We have concluded, from an examination of the record, that there is substantial evidence in this case to show Wood had some connection with or control over Racldey in the matter of cutting and removing timber from Cain’s land.

Cain’s testimony was substantially as follows: He talked with Racldey who said they were cutting timber on his (Cain’s) land; That Racldey said Wood sold him the timber and told him to cut it; He stated that Wood said the boys were cutting for him, and that they got over the line, and also said they would pay him for the timber; On another occasion he told Wood the amount he wanted for the timber, that Wood said it was too much, but Wood never denied he was a participant. Dempsey Sutton, a witness for Cain, testified that he cut timber part of the time on land which he thought belonged to Wood but later learned belonged to Cain — that he was cutting for Wood. Ira Tuttle, a witness for Cain, testified that he would ‘ ‘ settle” for the timber cut on Cain’s land.

There was other testimony and records which tended to show Wood had no connection or relationship with Cain, and which tended to explain away the testimony on behalf of Cain, but this could not, of course, obviate submitting all the testimony to the jury.

Since the judgment against Rackley is final, the reversal as to Cain’s claim against Wood will permit a new trial only as to those two parties.

Reversed.


author: Paul Ward, Associate Justice. Carleton Harris, Chief Justice,

text:
    Carr v. Hall.
    5-2846
    363 S. W. 2d 223
    Opinion delivered December 10, 1962.
    [Rehearing granted January 21, 1963 — Supplemental Opinion on Rehearing p. 1044.]

      Bernard Whetstone, for appellant.

      J. S. Thomas and C. E. Snuggs, for appellee.
   Paul Ward, Associate Justice.

This is a child custody case, coming to us on appeal from a decree refusing to award custody of an eleven-year-old daughter to the mother, and fixing visitation rights. The issue arises out of the factual background presently set out.

Fannie Mae Hall and Maurice Orón Hall were married in 1950, and they have a daughter named Patricia Louise. On November 15,1961 Fannie filed a petition for divorce, alleging indignities, in which she stated it was satisfactory to her that custody of Patricia (then ten years old) be given to Patricia’s father. On December 18,1961 a decree was entered in accordance with the petition. There was no appeal. The day following the decree appellant (Fannie Mae) married Curtis Carr.

On May 10,1962 appellant, represented by new counsel, filed a petition (in the same court that granted the divorce) asking for custody of Patricia subject to visitation rights of appellee. After an extensive hearing, at which petitioner testified, Patricia, the mother of appellee, Dr. Murphy and others, the court, on May 31, 1962, amended the original decree ‘ ‘ to the extent that the plaintiff-petitioner is entitled to have visitation with the child, Patricia Louise, at all reasonable and seasonable times.” Appellant then promptly moved the court to ‘ ‘ spell out the specific terms and conditions of said visitation rights.”

About ten days later appellant filed another petition asking the court to require “that the visitations be had entirely away from the home of” appellee. At the hearing both appellant and appellee testified, and the court entered another decree on June 15, 1962. In this decree the court held that “the visitations should be from 9:00 to 12:00 each Saturday morning in a home or house across the road from appellee’s home and that petitioner may take Patricia for a ride or to petitioner’s home, should Patricia desire to go. ’ ’

Appellant gave notice that she was appealing from the court’s refusal to grant her full custody of Patricia (decree May 31, 1962) and also from the limitations placed on visitation rights (decree June 15, 1962).

We have carefully read the record and considered all of appellant’s arguments, but are not convinced the trial court committed any reversible error. Running through all of Patricia’s testimony is the strong implication she would not be happy living with her mother and step-father. We are unwilling to substitute our judgment for that of the trial court and thereby force Patricia to leave her father and live with her mother. Patricia is eleven years old and is pictured as a bright intelligent girl. The trial court found that “she knows exactly what this is all about. ’ ’ Appellant now strongly persists that she is greatly disturbed by not being able to have Patricia with her in her new home, but she cannot deny she voluntarily gave up that privilege the year before. The trial court had these parties before him on three separate occasions over a period of several months, and he had a much better opportunity than we have to evaluate the testimony. The court’s separate statement of facts which appears in the record shows that due consideration was given to the best interest of Patricia and also to the rights and feelings of appellant.

In numerous decisions of this Court we have clearly pointed out that the best interest of the child is the paramount consideration of the Court in custody cases. See: Oliphant v. Oliphant, 177 Ark. 613, 7 S. W. 2d 783; Miller v. Miller, 208 Ark. 1058, 189 S. W. 2d 371; Duffy v. Dixon, 209 Ark. 964, 193 S. W. 2d 314. The wishes of the involved child may be considered where it is capable of making an intelligent choice. See: Patterson v. Cooper, 163 Ark. 364, 258 S. W. 988; Dill v. Dill, 209 Ark. 445, 191 S. W. 2d 829.

In refusing to change the original decree by giving custody of Patricia to appellant, the court first held that appellant could have visitations with Patricia ‘ ‘ at all reasonable and seasonable times.” Appellee expressed no disagreement with this modification, but appellant asked to have it changed in two respects: viz., she wanted a definite time fixed for visitations, and she wanted the right to visit with Patricia away from appellee’s home. The court granted appellant’s request in this way. Appellant has the right to take Patricia each Saturday from 9 a. m. to 12 a. m., with or without Patricia’s consent, away from appellee’s home to a house nearby. During this time appellant can take Patricia riding or she can take Patricia to appellant’s home “should Patricia Louise so desire.” It seems that appellant’s main objection to the court’s order is that it gives Patricia the right to decide whether she will or will not go to her mother’s home — or go riding with her.

Under the facts and circumstances of this particular case we not only think the court’s order was proper but wise and in the best interest of Patricia and her mother. If Patricia were forced to visit in her mother’s home it could reasonably increase whatever aversion she now has to doing so. On the other hand, if there is any hope of reconciliation between mother and daughter, appellant is given an opportunity to effect it by love and affection rather than by force. Having Patricia to herself, away from appellee, appellant should be able to persuade Patricia to go with her to her home or to other places. Appellant has been given that opportunity, and who can say it will not succeed? Appellant’s fear that appellee will chastise Patricia if she does visit her mother is not justified by the record. Patricia testified that her father never talked to her about her mother in any way that was unkind; that she was not afraid of her father; and, that her father would not do anything to her if she went to see her mother. As we view this unfortunate situation, appellant is entitled to an opportunity to re-establish a happy relationship with her daughter. She can do this only by love and not by force, and the court has given her that opportunity.

Affirmed.

Harris, C. J., and George Rose Smith and Robinson, JJ., dissent in part.

Carleton Harris, Chief Justice,

(Dissenting in part). I agree with the majority that the custody of this child should not be changed from the father to the mother, and concur with all that the majority say relative to this point. However, I am of the opinion that the mother should be permitted to take the child to her home on the occasion of the permitted visits. In other words, I would strike that portion of the order which provides “should Patricia Louise so desire,” for I am persuaded that the child, even though she were eager to visit in the mother’s home, would not do so because of fear of her father. Mr. Hall admitted that he did not want her to go to appellant’s home (though he stated that he had not forbidden her), and I am convinced, from reading the testimony, that the child is fearful of acting contrary to his wishes. Mrs. Carr testified in the second hearing that, on going out to her car after visiting with Patricia Louise at the house provided, the little girl said, “Mother, I can’t hug your neck, I hope you understand, my Daddy is looking. ’ ’ She also testified that during the visit with her daughter, the latter played the piano while they talked because Patricia did not want her grandmother to hear what was said. Appellant likewise stated that her daughter told her that the grandmother (Mrs. Hall, mother of appellee) had said that if Patricia ever went home with appellant, she could not come back to live. This statement was not denied. Mr. Hall testified that he told Patricia that she did not have to go with her mother to the home unless she wanted to, and various answers, in both the first and second hearings, indicate his animosity toward his ex-wife. For instance, in the first hearing, he stated that he was afraid if he permitted Patricia to go to Mrs. Carr’s home, his ex-wife would get drunk; that, judging from past experience, he could not conceive of any Christian visit that the two might have out of his presence. I do not think the evidence in the hearings justifies such a conclusion on the part of appellee. At another time, Mr. Hall stated, “I do not feel that I have any duty under any circumstances towards Mrs. Carr whatsoever. ” It is very evident that appellee is rather bitter toward his ex-wife — and perhaps — human nature being what it is — there is some justification. I am not concerned with any duty that he owes Mrs. Carr — but rather only with the duty owed his daughter, and it is my opinion that the child’s future welfare, happiness, and stability will be greatly increased if she can have an amiable and happy relationship with both parents. In my view, it is not proper to place the burden on the child for any visit that might be made to the mother’s home, for, though I could be in error, it appears to me, in reading the testimony of the parties and the little girl, that a fear of the father’s disapproval of any visit to appellant’s home, is foremost in Patricia’s thoughts. It is true that the little girl stated that she wanted to live with her father— and 1 have no fault to find with that decision. This, from her testimony, was evidently influenced to a large degree by the fact that her mother married Mr. Carr, and she does not desire to be around her stepfather. Again, I can completely understand this sentiment. But this dissent is not directed to the custody order — only to the 3-hour visitation provided on each Saturday morning. I would simply suggest that the mother be permitted to take the child to her home at a time when Mr. Carr is not present ;• in fact, the order could provide that Mr. Carr should not be present when the visit is made.

Because I feel that leaving the decision to visit in the mother’s home places pressure upon Patricia Louise, and because I seriously doubt that she will ever make such a visit as long as her father disapproves, I respectfully dissent to that portion of this court’s opinion.

I am authorized to state that Justices George Rose Smith and Robinson join in this dissent..

       Patricia’s testimony is vague and uncertain in many respects. For instance, she never specifically stated why she did not want to go to the mother’s home, and many of her answers were, “I don’t know.” There is a definite indication that the father’s ideas have influenced her feelings. From the transcript,
      “Q. Has your father talked to you about your mother?
      A. No.
      Q. He hasn’t told you, hasn’t tried to?
      A. He’s told me the situation.
      Q. He told you what the situation was and that is the reason you didn’t want to go see your mother?
      A. For what reason?
      Q. From what he told you?
      A. 'Well, in a way yes and in a way no.”


author: Sam Robinson. Associate Justice.

text:
    Miller v. State.
    5056
    362 S. W. 2d 443
    Opinion delivered December 10, 1962.

      W. S. Atkins, for appellant.

      Frank Holt, Atty. General, by Russell J. Wools, for appellee.
   Sam Robinson. Associate Justice.

On the 4th day of April, 1962, the appellant, John H. Miller, was convicted on a charge of grand larceny, growing out of the alleged stealing of an automobile. At the trial, the State used as a witness, Jacqueline Sartin Miller. The evidence shows that she entered into a ceremonial marriage with appellant at Juarez, Mexico on the 3rd day of September, 1961, and subsequently they lived together as man and wife.

Of course, if Jacqueline is the legal wife of appellant she could not testify against him, but the State contends that she is not his legal wife because on March 29, 1960, appellant had married Betty Lee Handy in East Baton Rouge Parish, Louisiana; and further, that the marriage performed in Mexico is not valid because Jacqueline was only 17 years of age at the time.

There is no evidence that a 17-year-old female cannot enter into a valid marriage contract in Mexico, and we do not take judicial notice of foreign laws. 29 Am. Jur. 69. A marriage valid where contracted is valid anywhere. State v. Graves, 228 Ark. 378, 307 S. W. 2d 545.

Although there is evidence that appellant married another woman in Louisiana in April, 1960, there is no evidence that such marriage had not been dissolved at the time of appellant’s marriage to Jacqueline in Mexico. The law presumes that a marriage is valid, and the mere fact that appellant had been married on another occasion, and no showing that such marriage had not been dissolved, is not sufficient to overcome the presumption of the validity of the second marriage. “"Where the marriage is established by evidence, it is presumed to be regular and valid and the burden of proof is upon the party attacking it.” Yocum v. Holmes, 222 Ark. 251, 258 S. W. 2d 535.

No presumption of law is much stronger than the presumption that a marriage is lawful, innocent and not criminal. In Estes v. Merrill, 121 Ark., 361, 181 S. W. 136, the Court said: “So strong is this presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains even though it involves the proving of a negative, and although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage. ’ ’ See also Latham v. Latham, 175 Ark. 1037, 1 S. W. 2d 67.

Appellant also complains of the Court’s failure to give a requested instruction, but we find no error in that respect.

Because of the error in admitting the testimony of Jacqueline Miller, the cause is reversed and remanded for a new trial.


text:
    Burke v. State.
    5049
    362 S. W. 2d 695
    Opinion delivered December 10, 1962.
    [Rehearing denied January 7, 1963.]

      Donald Poe, for appellant.

      Frank Holt, Atty. General, by Milas H. Hale, Asst. Atty. Gen., for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a conviction for possession of intoxicating liquor in dry territory for purposes of sale.

On February 9,1962, appellant Paul Burke, while riding as a passenger in an automobile driven by one Gerald Oglesby in Sevier County, was arrested by officers attached to the Weights and Standards Division of the Department of Revenues. Oglesby was driving south on Highway 71 about five miles south of DeQueen, where the officers were temporarily stationed, when he was stopped. After examining their drivers licenses, the officer in charge demanded the key to the trunk of the car, where they found nine cases of jars apparently containing whiskey. Appellant was charged with unlawfully possessing 54 gallons of intoxicating liquor in a dry county for purposes of sale, as a third offender, under the felony provisions of Ark. Stats. § 48-811.1. Upon conviction, he was sentenced to the penitentiary for one year. The testimony is undisputed that Oglesby was not speeding or violating any other traffic laws when he was stopped, and it is also undisputed that the officers had no search warrant. One officer testified that the car looked heavily loaded and that he thought appellant was drunk, so they decided to “check the car.” Both arresting officers testified that there was a strong smell of wild-cat whiskey in and about the car, and that they knew appellant had a reputation for dealing in whiskey in Polk County.

Appellant relies on four points for reversal of Ms conviction. Appellant’s first point is: The alleged prior convictions were under a different act and section of the statutes from the information in the instant case, and were for a different crime, that is, selling instead of possessing for purposes of sale. It is unquestioned that criminal statutes must be strictly construed in favor of the defendant, Hughes v. State, 6 Ark. 131, 1. Eng. 131, and in that vein we examine the statute under which appellant was convicted. From examination of the record, we are unable to determine under what specific statute the appellant’s prior convictions were based, but we note that the convictions were subsequent to the passage of Act 395 of 1953 (Ark. Stats. § 48-811.1) and appellant was charged and convicted of crimes which are crimes enumerated by this statute, i.e., sale of intoxicating liquor or beverage. We are, therefore, unable to say that appellant was improperly charged under the felony provisions of Act 395.

Appellant’s second point urged for reversal is that no competent proof was offered that the alleged liquor was intoxicating liquor prohibited by law. In the case at bar, the arresting officers and the sheriff of Sevier County (who had custody of the nine cases from the time appellant was arrested) testified that they determined it was liquor from the smell. The cases of liquor were admitted into evidence at the trial. In Burris v. State, 172 Ark. 609, 290 S. W. 66, this court stated:

“Error of the court is assigned in permitting witness Hayden to testify that he identified the liquor as whiskey by the smell. The opinion of the witness, based upon the smell of the liquor, was competent evidence, and its weight was a question for the jury. It cannot be said as a matter of law that the evidence of the identification of intoxicating liquor must rest upon more substantial basis than that of the sense of smell.”

See also Burns v. State, 179 Ark. 1, 13 S. W. 2d 820; Hunter v. State, 180 Ark. 613, 22 S. W. 2d 40; Freyaldenhoven v. State, 217 Ark. 484, 231 S. W. 2d 121; Fuller v. State, 179 Ark. 913, 18 S. W. 2d 913; and 78 A. L. R. 439. The evidence was competent, and its weight was a question for the jury.

Appellant’s third point, that the evidence was obtained by illegal search and seizure and should have been excluded, has given this court considerable concern. In Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, it was stated:

“The right to be secure against unreasonable searches is guaranteed by Article 2, § 15 of our Constitution and also, in essentially the same language, by the 4th Amendment to the United States Constitution, yet our Court has followed a rule at variance with the Federal rule regarding the admissibility of evidence obtained by search without a warrant. After careful consideration we have concluded that we will re-examine our former decisions in this connection with a view to changing our announced rule when the question is properly presented to us again.” [Emphasis ours.]

In the light of this caveat, we have thoroughly examined the record and authorities cited and not cited by the parties. Two cases which are of compelling interest because of the similarity of the fact situations with the instant case are Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, and Brinegar v. United States, 338 U. S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879. In both cases the United States Supreme Court held that, under the Fourth Amendment, a valid search of a vehicle moving on a public highway may be had without a warrant, but only if probable cause for the search exists. The Court then went on to rule that the facts there presented amounted to probable cause for the search of the automobiles involved. In a careful and detailed analysis, Chief Justice Taft in Carroll v. United States, supra, at p. 153, stated:

“We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognising a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” [Emphasis ours.]

In the case at bar, the testimony of the officers as to the heavily loaded car, their knowledge of appellant’s reputation as a known bootlegger, and the strong odor of wild-cat whiskey in the car all add up to probable cause for the search. As was stated in Carroll v. United States, supra, and approved in Brinegar v. United States, supra,:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search . . . But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise” [Emphasis ours.]

Our caveat in Clubb v. State, supra, stated that “our Court has followed a rule at variance with the Federal rule regarding the admissibility of evidence obtained by search without a warrant. ’ ’ In the instant fact situation, our former decisions are not at variance with the Federal rule, and there is, therefore, no necessity here for re-examining our former decisions. To hold that this evidence is inadmissible would be to create still further variance with the Federal rule regarding admissibility of evidence obtained by search without a warrant. However, this shall in no way diminish our caveat.

The last point urged by appellant is that the remarks of the prosecuting attorney were prejudicial error.

In his closing argument, the prosecuting attorney apparently stated that the argument of appellant’s counsel was misleading, to which, appellant made timely objection. The conrt sustained the objection and admonished the jury to base their verdict on the testimony as they gained it from the witnesses who testified and on the law as given them by the court, and on those two things alone. He further instructed them to disregard anything that was not in the record that was mentioned by the attorneys. The balance of the prosecuting attorney’s closing argument as transcribed was not such an expression of opinion of counsel as to be so flagrant as to deliberately, purposely and effectively arouse the passion and prejudice of the jury. As stated in Adams v. State, 176 Ark. 916, at p. 939, 5 S. W. 2d 946:

“This court will always reverse where counsel go beyond the record to state facts that are prejudicial to the opposite party, unless the trial court, by its ruling, has removed the prejudice. Hughes v. State, 154 Ark. 621, 243 S. W. 70 [and other cases cited]. But this court does not reverse for the mere expression of opinion of counsel in their argument before juries, unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect.”

Finding no error, we affirm.


text:
    Carney v. Barnes.
    5-2779
    363 S. W. 2d 417
    Opinion delivered December 10, 1962.
    [Rehearing denied January 28, 1963.]

      Douglas Bradley, for appellant.

      Gerald E. Pearson, for appellee.
   Neill Bohlinger, Associate Justice.

This is a boundary line dispute and involves a very small piece of inadequately described property adjacent to the holdings of appellants and appellees in the East % of Section 13, Township 15 North, Range 2 East.

The appellants are the owners of 44 acres in the NE of Section 13, Township 15 North, Range 2 East and the appellees are the owners of 44 acres immediately south of the lands belonging to the appellants, the properties being separated by a county road running east and west.

The true line, which is the southern boundary of the lands of the appellants and the northern boundary of the lands of the appellees, appears to have been well established by an adequate survey. But the appellants contend that at some period there had been established a fence line south of the true line which was accepted by the then owners of the property as an agreed boundary line.

It is true that the surveyor found, and other witnesses have supported his finding, that a fence had existed from an eighteen inch white oak tree approximately midway of the north line of the appellees’ property west to the established corner at the northwest corner of appellees and the southwest corner of appellants’ property. Remnants of the fence still exist and this fence line is south of the true line and south of the county road. Toward the western boundary of appellees’ property the county road appears to turn sharply to the north which leaves approximately fifteen feet between the old fence line and the road. The appellants contend that on this particular fifteen feet and along 445 feet lying between the old fence line and the county road appellees have encroached on property which appellants contend is theirs and appellees have cultivated the property out to the county road.

The case hinges on whether or not the old fence and the fence row was an agreed line between the two pieces of property. While the construction and maintenance of a division fence, when mutually regarded as a boundary, may constitute recognition and acquiescence, mere existence of a fence between adjoining land owners is not of itself sufficient. There must, therefore, be a mutual recognition of the fence as the dividing line.

The property owned by the parties hereto was formerly part of what is known as the Tulley estate. Silas Tulley, who owned the land involved and which he sold in the early 1930’s, was the owner when the county road was put through this area. He is in a better position than any other witness as to the erection of the fence and he testified that he had a fence on the north line of his property and that when the road was put there his fence was moved back south from the line; that at that time he knew where the true line was and that it was north of where his fence was moved; that the road was put there in about 1924 and that he knew at that time where the true line was and he was claiming to the true line which was north of his fence.

We fail to find in the record the testimony of any of the subsequent owners of this property in which it is shown that the parties agreed on the old fence as a boundary line, nor is there such a mutual recognition and acceptance of that fence as a boundary line that would constitute acquiescence. The appellees and their predecessors in title appear to have cleaned off the disputed strip between the fence row and the true line and up to 1959 the appellees appear to have exercised control normally associated with ownership over the disputed strip of land. 1959 appears to have been the first year that an attempt was ever made to cultivate the area in dispute and in that year the appellees planted some beans on the disputed land and the appellants came over and disced up appellees ’ beans and planted that strip for themselves.

As we recently said in the case of Webb v. Curtis, 235 Ark. 599, 361 S. W. 2d 87:

* * * a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years. ’ ’ Citing Cossey v. House, 227 Ark. 100, 296 S. W. 2d 199.

There is an absolute lack of testimony that Mr. Tulley or his successors in title ever intended to claim anything except to the true line which is as we stated, north of the old fence. The old fence would, therefore, appear to have been erected as a barrier and not as a boundary and we find nothing in this case that is in any way persuasive that anybody ever agreed to the old fence as a boundary between the properties involved and certain it is that the appellees have exercised the usual perogative of ownership in cleaning up the land in question and the only venture that we find by the appellants onto the land involved is the attempt to plant a small area in beans at the west end of the property adjacent to the old slough and that entrance was as recent as 1959.

"While it is ordinarily contemplated that a county road order will be entered setting out the county road and defining the boundaries, that does not appear to have been done in this case, but strange indeed would be the theory that if a man erected a fence as a barrier adjacent to a county road that the land between his fence and the road would be subject to entry by the landowner on the other side of the road.

The chancellor very properly found that the appellants had failed to maintain the issues that devolved upon them and that finding we affirm.