text:
    ARKANSAS STATE HIGHWAY COMM’N v. Bill WOODY et ux
    5-5177
    453 S. W. 2d 45
    Opinion delivered May 4, 1970

      Thomas B. Keys and James N. Dowell, for appellant.

      Way land A. Parker, for appellees.
   George Rose Smith, Justice.

In this condemnation suit the highway department is acquiring a 24.07-acre strip of land needed in the relocation and improvement of Highway 71 in Sebastian county. The taking divides into two parts what was previously a 135-acre farm. The landowner Woody fixed the total damages at $45,-000. His expert witness, Glenn West, put the figure at $32,275.50, which was precisely the amount of the jury’s verdict. Witnesses for the highway department testified to total damages of about $9,000.

For reversal the highway department argues that the trial court erred in refusing to strike (a) the entire value testimony of the landowner, (b) the entire value testimony 'of the witness West, (c) the landowner’s testimony as to the damage to his house, and (d) West’s testimony upon the latter point. For convenience we will discuss the first two arguments together and the last two together.

First, it is certainly true that in some instances a witness’s entire value testimony is so lacking in substance as to be subject to a motion to strike. That was true in Ark. State Highway Commn. v. Darr, 248 Ark. 730, 437 S. W. 2d 463, where Mrs. Darr had no reasonable knowledge of market values in the community. It was true in Ark. State Highway Commn. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173, 4 A. L. R. 2d 749 (1962), where the landowner simply plucked an obviously exaggerated figure from the air. It was true in Ark. State Highway Commn. v. Roberts, decided June 9, 1969, 441 S. W. 2d 808, where the witnesses relied upon sales that were demonstrably lacking' in comparability to the tract being taken.

Here the situation is decidedly different from that in the cases cited. Woody, the landowner, had lived on the property for 28 years. West, a real estate broker, had been engaged in that business for five years. Both men were qualified to give their opinions on direct examination. Both men reasonably explained their views on cross examination. They showed, for example, why part of the land along Highway 10 was valuable as possible home sites, why other parts of the farm were valuable as pasture land, and why the taking especially diminished the worth of the land left west of the new highway — that tract being almost three quarters of a mile long and tapering from a width of only 540 feet at the south end down to zero at the north end.

In the matter of comparable sales, Woody had sold a less desirable seven-acre tract across Highway 10 for $3,500 — a price comparing reasonably to the values fixed by Woody and West on the witness stand. Counsel for the highway department insist that the tract was actually 12 acres, reducing the selling price to about $300 an acre, but the record is by no means clear on this point. The department produced no proof about the size of the tract. As we read Woody’s testimony, he admitted that the purchasers thought the tract to be more than seven acres, but he did not accept that view. His statement that the tract was “probably a little more” than a certain size can-be read in context to mean either a little more than seven acres or a little more than 12 acres. On the record as a whole the jury may fairly have concluded that the sale had been for a price of about $500 an acre. Without detailing the proof at length, we think it enough to say that the trial court was fully justified in refusing to strike the value testimony of Woody or that of West.

Secondly, it is argued that the court should at least have stricken the testimony of both men about the damages to the landowners’ house. There are two answers to that contention. One, the jury could have found that the dwelling will be diminished in value by the new right-of-way’s cutting across the yard and by the lights from traffic at an intersection that did not previously exist. See Ark. State Highway Commn. v. Davis, 245 Ark. 813, 434 S. W. 2d 605 (1968), with respect to damage from the lights from traffic. Two, with regard to both Woody and West the highway department attorney moved to strike the testimony about the damage to the house because the witness “has taken an improper element of damage into consideration” in assessing the damage to the house. In fact, Woody had mentioned two elements of damage; West had mentioned four or five. In both instances at least one of the elements mentioned by the witness was a proper matter to go to the jury. Hence the general reference to one unspecified element of damage did not pinpoint the matter for the trial court’s determination. In that connection we have pointed out that the witness should be afforded an opportunity to specify the amount of money attributable to the improper element of damage. Ark. State Highway Commn. v. Wallace, decided September 22, 1969, 444 S. W. 2d 685. That precaution was not taken here.

What we have said also answers the appellant’s final contention, that there is no substantial evidence to support the amount of the verdict. We find the testimony of both Wood and West to be substantial.

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    LANE POULTRY FARMS et al v. Nallie C. WAGONER
    5-5237
    453 S. W. 2d 43
    Opinion delivered May 4, 1970

      Shaver, Tackett, Young ir Patton, for appellants.

      John B. Hainen, for appellee.
   Lyle Brown, Justice.

This is a workmen’s compensation case. The circuit court affirmed a finding of the Workmen’s Compensation Commission that appellee, Nallie C. Wagoner, suffered a fifty per cent permanent partial disability to the body as a whole. The single question on appeal is whether there is substantial evidence to support that finding.

Appellants, being the employer and the insurance carrier, insist that because of unusual circumstances we should “search the record, weigh the evidence, determine where the preponderance lies and decide whether there is substantial evidence . . . .” The claim was initially heard by a compensation referee, Mr. Norwood Phillips. All witnesses who personally testified appeared before him. Mr. Phillips kept the case open to allow both sides to introduce reports of subsequent medical examinations. Referee Phillips resigned to enter private practice before the additional evidence was filed and therefore did not render an opinion. When all subsequent exhibits were placed of record the claim was referred to Referee Newbern Chambers; he reviewed the complete transcript and rendered his opinion. The respondents appealed to the full commission. “Having considered the evidence, the referee’s opinion and oral arguments,” the commission concluded that the award of the referee should be adopted as its findings.

It is of course apparent that the referee (Mr. Chambers) who rendered the opinion, did not see and hear the witnesses. Therefore, appellants argue, the referee did not have the grasp of the case as if he had conducted the hearing. Appellants deduce from those facts that “the verity which such opinions are normally given” should not be here accorded. The defect, reason appellants, can be cured by this court searching the record, weighing the evidence, and coming to its own conclusions.

We do not agree with appellants. First, the findings of the referee are of no significance either to the circuit court or to this court; resort is had on appeal only to the findings of the commission in testing the sufficiency of the evidence. Parker Stave Co. v. Hines, 209 Ark. 438, 190 S. W. 2d 620 (1945). Secondly, if appellants felt aggrieved by the transfer of the claim from one referee to another they should, have addressed their grievance to the trier of the facts, namely, the compensation commission; that is the body which weighs the evidence. Chapman v. C. Finkbiener, Inc., 230 Ark. 655, 324 S. W. 2d 348 (1959). The latter function was delegated to the commission by the ¡Legislature. Farmer v. Knight Co., 220 Ark. 333, 248 S. W. 2d 111 (1952). We do not try compensation cases de novo on appeal; we ascertain whether there is substantial testimony to support the commission. McKamie v. Kern-Trimble Drilling Co., 229 Ark. 86, 313 S. W. 2d 378 (1958).

Appellee was employed by Lane Poultry Farms and sustained an injury on June 6, 1967. He was 54 years of age, and had worked many years at various laboring jobs without experiencing, according to his testimony, any disabling injuries or serious physical problems. His ailments at the time of the accident were some degenerative joint disease and vascular irregularity. Appellee insisted that those conditions created no physical problem. There was an abundance of testimony that prior to the accident appellee was very active, working regularly, making a . large, garden, driving a truck, hunting, and fishing. On the occasion of the accident appellee was “pulling” ice with an electric hoist. One of the two containers fell from the hoist. In moving backward suddenly to avoid being struck, he fell over one of the container lids, his left leg doubled, and the full weight of his body fell on that leg. Appellee went to Dr. Bill Dickinson at DeQueen the next morning because he thought he had wrenched his back in the fall. Appellee was hospitalized for some three weeks, then for another month he was an outpatient of Drs. Dickinson and Shukers. He did not respond to treatment and the doctors concluded their patient was suffering from severe muscular strain in the. lower back, continuation of muscle spasm, and a possible ruptured intervertebral disc: They referred appellee to Dr. Knight, an orthopedic surgeon in Texarkana. There appellee was again hospitalized for about three weeks. That was in October 1967, and thereafter he was an out-patient under Dr. Knight until July 1968. In Dr. Knight’s final report on July 8 he stated these conclusions:

It would seem that he is not going to return to work and I would recommend that the insurance company settle with him on these lines. I think his final diagnosis has to stand at degenerative joint disease, mild, lumbar spine, this being an antedating condition. Perhaps it was aggravated by his trauma; that is to say, aggravation of a preexisting disease, but I would not specifically connect the degenerative joint disease to his occupation. At this point I would rate him as having a permanent disability to the vertebral column of 5% from the degenerative joint disease.

Appellee reported back to Dr. Shukers with the complaint that he was wholly unable to do any type of work requiring lifting, bending, reaching, or walking to any extent. Dr. Shukers was not in full agreement with Dr. Knight’s findings and it was decided to send appellee to a neurosurgeon. Dr. Padberg of Little Rock was selected. A thorough examination was conducted on September 8, 1968, by Dr. Padberg. It was his tentative finding that appellee “may have some general joint disease associated with probably a postural protrusion of the intervertebral disc at L4-5 and with considerable vascular changes in both lower extremitities.” He stated that he would like to see appellee again in approximately two months. The follow-up examination in December revealed to Dr. Padberg that appellee was growing progressively worse. Among other things there was a diagnosis of a probable “protrusion of the intervertebral disc at the true level of L5-S1 and true L4-5 level with a bulging bilateral lesion.” Dr. Padberg concluded that appellee “probably would have a permanent partial disability to the extent of at least 35% to the body as a whole.” The doctor conceded that he was not satisfied with his percentage of evaluation “but it is about the best thing I can come up with for this patient at this time.” He suggested the possibility that surgery could reduce the disability but was not certain of good results.

We find substantial -evidence in the record to warrant a finding that the claimed injury not only did primary damage to the lower back region but was of such severity as to aggravate pre-existing conditions which had not before caused claimant any physical inhibition.

The commission increased the functional disability finding of 35% by 15% to include compensation for the inability of appellee to earn wages. Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685 (1961). Even if an operation reduced the percentage of appellee’s disability he would still be dependent on hard labor for a livelihood. He has a fourth grade education, no vocational training of any type, and is now 56 years of age. Therefore if wage earning became a realization it would certainly be limited; there was found to be a good probability of some productive years if an operation were performed.

Affirmed.


author: John A. Fogleman, Justice.

text:
    UNIVERSAL C. I. T. CREDIT CO. v. Allen RONE and Thelma Rone
    5-5224
    453 S. W. 2d 37
    Opinion delivered May 4, 1970

      N. M. Norton, for appellant.

      A lien Rone and Thelma Rone, pro se.
   John A. Fogleman, Justice.

Appellant, Universal C. I. T. Credit Company, instituted this action for deficiency judgment against Allen and Thelma Rone, appellees. According to appellant, its original loan to appellees was $1,332 including interest and insurance premiums. The obligation was payable in 18 installments of $74 each, due the twenty-second of each month. The security was a 1957 Ford pickup truck and a 1956 Cadillac sedan. The first two installments, due May 22 and June 22, 1963, were paid. There is a disagreement between the parties as to the number of installments delinquent before the security was repossessed. At any rate, the vehicles were repossessed on September 11, 1963, and sold on October 22, 1963.

Both appellees stated that they did not receive notice of the sale. Mrs. Rone testified that, at the time the notice was allegedly sent, she and her husband lived on a lot behind her employer’s store; that the post office box the notice allegedly was sent to was that of her employer, Mr. Copeland; and that any one of several people, including her, would remove the mail from the box, take it into the store and place it beside the cash register to be picked up by the various addressees. Mr. Copeland did not recall receiving the .letter containing the notice but admitted that “a post office card,” which was a receipt for certified mail, bore his signature under the caption “signature or name of addressee’s agent.” The receipt shows October 12, 1963, as date of delivery.

Appellant introduced testimony that the vehicles were sold at public sale and that the automobile was sold for $200 and the pickup truck for $125. The purchaser of the Cadillac testified that he considered the price he paid to be the fair market value. No testimony was offered by appellant as to the value of the truck; Appellant did present testimony through Mr. Ward, its credit manager at the time the sale took place, that it did the best it could to get a good price. Appellee Allen Rone testified that he had spent substantial sums of money repairing the vehicles and that the value of the automobile was $700 while the value of the truck was $700 or $750. He testified that he bought both vehicles in April of 1963 and that he traded in a 1956 Ford station wagon and paid $1,000 for the vehicles.

Appellant’s branch manager, Mr. Kelley, testified that after allowing credits for the proceeds of the sale, payments made by appellees, unearned insurance premiums and unearned interest, and adding the cost of the sale, there remained a balance of $756.26, the amount sought in this action.

From an adverse judgment based on a jury verdict denying recovery, Universal C. I. T. Credit Company brings this appeal, challenging only the correctness of the court’s Instruction No. 2 and the court’s refusal to give plaintiff’s Instruction No. 1. As to the latter contention there was no error since the proposed instruction did not require that the jury find the sale to be commercially reasonable or conducted according to law as a condition to rendition of a verdict for the entire deficiency.

Appellant’s right to a deficiency judgment is established by Ark. Stat. Ann. § 85-9-504(2) (Add. 1961). The burden was upon the secured party as the plaintiff to establish the amount for which it was entitled to judgment. This is not an action by the debtor to recover damages because of appellant’s failure to proceed in good faith and in a commercially reasonable manner, as is treated by Ark. Stat. Ann. § 85-9-507 (Add. 1961). Appellees were entitled to, and did, assert the right to credit for the loss they claimed as having resulted from failure on the part of appellant to comply with the provisions of §§ 85-9-501 — 85-9-507, governing procedure upon default as a defense to the claim of appellant. Alliance Discount Corp. v. Shaw, 195 Pa. Super. 601, 171 A. 2d 548 (1961). See Norton v. National Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S. W. 2d 538; Barker v. Horn, 245 Ark. 315, 432 S. W. 2d 21. The failure to give the notice required by the code cannot constitute an absolute defense to an action for a deficiency judgment. Norton v. National Bank of Commerce of Pine Bluff, supra; Carter v. Ryburn Ford Sales, 248 Ark. 236, 451 S. W. 2d 199. We have held that, in determining entitlement to deficiency judgment under such circumstances, the debt is to be credited with the amount that reasonably should have been obtained through a sale conducted according to law, rather than the actual sale price. Norton v. National Bank of Commerce of Pine Bluff, supra; Barker v. Horn, supra.

In an action to recover a deficiency judgment in which the sale of collateral is attacked ¡for want of notice, the burden of showing the giving of any notice required should properly devolve upon the secured party, not solely because it is the plaintiff in the action, but because the proof with respect thereto is peculiarly within its knowledge. Mallicoat v. Volunteer Finance and Loan Corp., 57 Tenn. App. 106, 415 S. W. 2d 347 (1966). Appellant also had the burden of showing the amount of the deficiency it was entitled to recover. Carter v. Ryburn Ford Sales, supra. Whenever the value of the collateral is an issue in an action to recover a deficiency, there is a presumption that it was worth at least the amount of the debt, and the secured party has the burden of proving the amount that should have been obtained through a sale conducted according to law. Barker v. Horn, supra. It is only where the sale is conducted according to the requirements of the code that the amount received or bid at a sale of collateral is evidence of its true value in an action to recover a deficiency. Schabler v. Indianapolis Morris Plan Corporation, Ind., 234 N. E. 2d 655 (Ct. App. 1968).

It cannot be said as a matter of law that there was compliance here with the notice requirements of the commercial code. Not only did appellees deny ever having received any notice of the time and place of sale, the only evidence that such notice was given consisted of a carbon copy of a notice of sale addressed to appellees and dated October 11, 1963, and a postal receipt bearing the names of appellees purportedly signed by C. H. Copeland, found with it in appellant’s files by one of its employees who had no connection with or personal knowledge of the matter. The receipt was not identified in relation to the letter, except by date and an unexecuted form labeled “Receipt for Certified Mail.” The manager in appellant’s office at the time of the repossession did no more than identify his signature on the copy of the notice in appellant’s file. He had no recollection of the sale of the collateral. No one knew of any notice given to the public. Thus, there was a fact question as to notice of sale and commercial reasonableness. The instruction offered by appellant was a binding instruction which failed to mention these vital issues. For this reason, refusal to give it was not error. Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304.

Appellant urges four points for reversal because of the giving of Instruction No. 2 over its specific objections. That instruction is as follows:

You are instructed that under Arkansas Law a finance company can, under certain conditions, procure a deficiency judgment against a borrower provided the law governing the procedure is followed. The question of proper procedure, proper notice, and commercial reasonableness of the sale have been raised as defenses by the defendants. You are instructed that before C. I. T. Credit Company is entitled to a judgment against the defendants, you must find from the evidence that every aspect of the sale, including the method, maimer, time, place and terms of the sale were commercially reasonable.

The first point argued is that the instruction is erroneous because it permits appellees to have the benefit of a setoff or counterclaim when none was pleaded. Appellees, in their answer, denied the indebtedness, denied having notice of the sale, denied that the sale was for a commercially reasonable value and generally denied other allegations of the complaint. As pointed out above, the issues raised as to notice, commercial reasonableness, and the amount of the deficiency, if any, were defenses which placed the burden of proof on appellant. Thus, there was no question of setoff or counterclaim involved.

Appellant’s second argument is that this instruction erroneously placed the burden on appellant to prove that the sale was commercially reasonable. We have heretofore stated the propriety of imposing the burden as to certain matters on appellant. Still, it does not seem to us that this instruction places the burden of proof on anyone. The first instruction given by the court may well have placed the burden on appellant, but no objection was made to that instruction.

Appellant’s third point is its contention that Instruction No. 2 erroneously fixed the damages for breach of the requirement that the sale be commercially reasonable [Ark. Stat. Ann. § 85-9-504(3) (Add. 1969)] without regard to appellees’ actual damages or to the statutory damages even though there was some proof by appellant of appellees’ actual damages. Arkansas Statutes Annotated § 85-9-507(1) (Add. 1961) provides that the debtor has a right to recover from the secured party any loss caused by a failure to comply with §§ 85-9-501 — 507, and, if the collateral is consumer goods, fixes a minimum amount for recovery.

We find this objection to be well taken. The only definite testimony as to the amount of the debt, at the time of the sale, showed it to be $1,070.26, after credits were deducted for unearned interest and unearned insurance premiums, and costs of storage and repair of the collateral were added. There was no testimony except that of Allen Rone as to the value of the pickup truck. He placed it at $700 to $750. He testified that the combined value of the two vehicles was in excess of $1,400. Thus if the jury found that the required notice was not given, it might have found that the value of the two vehicles at the time of the sale was as little as $900 or as much as $1,400. The instruction failed to allow for the fact that, when commercial code requirements for disposition of collateral have not been followed, judgment for a secured party can be rendered for the amount by which its deficiency exceeds the amount the collateral reasonably should have brought if code requirements had been followed. Even if proper notice was not given, in this case under the evidence adduced, appellant may not have been entitled to judgment for any deficiency, or it may have been entitled to judgment for $180.26, the amount of its apparent deficiency ($755.26) less the difference between Rone’s lowest valuation of the pickup truck ($700) and the sale price ($125). See Norton v. National Bank of Commerce, supra; Barker v. Horn, supra.

Our finding, that there was an issue of fact as to whether the sale was commercially reasonable under the commercial code, disposes of appellant’s point four, in which he asserts that the instruction was erroneous because there was no such question. In addition, this point was raised for the first -time on appeal and cannot be considered. Bussell v. Missouri Pacific Railroad Company, 237 Ark. 812, 376 S. W. 2d 545. Further, the issue was submitted to the jury by the court’s Instruction No. 3 without objection.

Because of the error indicated the judgment is reversed and the cause remanded for a new trial.

      There appears to be an error of $1.00 in this figure as the actual calculation made showed the balance to be $755.26, as Kelley ultimately stated.

      For pre-code application of this principle see City of Fort Smith v. Dodson, 51 Ark. 447, 11 S. W. 687.

      We do not mean to say that this evidence was not properly admitted under the "business records” statute.

      No other instruction was given as to the amount of credit to which appellees might be entitled. (Footnote ours.)

      We are not able to say whether either, or both, of the vehicles were “consumer goods” as a matter of law.


author: Frank Holt, Justice.

text:
    H. Gordon GREGSON et ux v. GREAT AMERICAN INS. CO.
    5238
    453 S. W. 2d 28
    Opinion delivered May 4, 1970

      Gannaway, Darrow & Hanshaw, for appellants.

      John M. Lofton, Jr., for appellee.
   Frank Holt, Justice.

The issue in this case is whether, under the various pleadings, the appellants can sustain a direct action against the appellee. On April 20, 1968, H. Gordon Gregson entered the Rebsamen Park Golf Course Clubhouse in Little Rock, paid his green fee and, as he was turning away to leave, lost his footing, fell and sustained serious back and spinal injuries. On January 17, 1969, he and his wife, appellants herein, in the belief that the City of Little Rock had no liability insurance, filed suit against the city and its architect, neither of whom is a party to this appeal, alleging that the injuries received by Gregson proximately resulted from the negligence of the architect and the negligence of the city which was operating the golf course in a proprietary capacity as a profit making enterprise.

The City of Little Rock filed a demurrer to this complaint which raised the issue of municipal immunity. The trial court overruled the city’s demurrer, upholding the appellants’ contention that the city was subject to suit in tort according to the allegations of the appellants’ complaint. Shortly thereafter, the city filed its answer wherein it admitted maintaining and operating the Rebsamen Park Golf Course, but specifically denied that such activity was of a proprietary nature. Subsequent to this answer the appellants propounded interrogatories. It was discovered that liability insurance, apparently affording coverage to the city, had in fact been provided by appellee. Appellants thereupon filed an amended complaint adding appellee as a party defendant and prayed judgment against the City of Little Rock and its architect jointly and severally or, in the alternative, against the Great American Insurance Company pursuant to Ark. Stat. Ann. § 66-3240 (Repl. 1966).

Appellee filed a motion to dismiss the amended complaint contending that, since § 66-3240 did not permit a direct suit against an insurance carrier where its insured municipality is subject to suit in tort, the overruling of the city’s demurrer effectively precluded appellee from being named a party defendant. Prior to any hearing on this motion, appellants took a voluntary nonsuit without prejudice as to the city and the next day filed an amended and substituted complaint against appellee and the architect which alleged various acts of negligence against the city and the architect, but which did not assert that the city was acting in its proprietary capacity. Appellee filed a motion to dismiss the amended and substituted complaint based on the same grounds as its original motion to dismiss. Appellants responded to this second motion denying “that there has been any ruling by this Court in this cause of action that the City of Little Rock is subject to suit for tort.” After a hearing, the trial court found that:

“* * * it has heretofore been ruled upon the hearing of the Demurrer of the City of Little Rock to the original complaint that the City of Little Rock was subject to suit in tort under the allegations of the complaint filed by the plaintiffs; that having found that the City of Little Rock was subject to suit in tort, the Court doth find that a direct action cannot be maintained against the Great American Insurance Company.”

Appellants assert four interrelated points for reversal. We group them for discussion: (1) The overruling of the city’s demurrer did not conclude the question of the city’s liability for tort so as to preclude suit against appellee; and (2) since appellants voluntarily nonsuited themselves as to the city and thereafter filed an amended and substituted complaint against appellee,- the allegations in appellants’ first complaint are not binding on them with respect to appellee.

I

A demurrer admits the facts set out in a complaint to be true solely for testing the sufficiency of those facts, as a matter of law, to state a cause of action. The admissions of the alleged facts are asserted exclusively for the purpose of a ruling; and this ruling decides no questions of law and fact, but only determines the sufficiency of the pleadings as a matter of law. See Carrier v. Beck, 227 Ark. 92, 296 S. W. 2d 446 (1956). In the instant case, then, all that could conclusively be ruled upon is whether the city, acting in a proprietary capacity, is subject to suit for tort. The demurrer being overruled, the issue as to whether or not the city was actually operating the clubhouse in a proprietary capacity is properly a question of fact susceptible to determination only at trial. In the city’s subsequent answer, as noted earlier, it specifically denied acting in a proprietary capacity. Consequently, the issue of the city’s liability for tort, being a factual question, could only be determined after evidentiary proof was adduced.

II

Appellants direct our attention to Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S. W. 2d 79 (1959), where we held that “[w]hen a nonsuit is taken, the procedure which was adopted in that action has no bearing on a subsequent action.” There, the plaintiff, in his first complaint, alleged, inter alia, grounds which conferred jurisdiction on a court of equity. Subsequently, the plaintiff dismissed this suit and refiled it in the circuit court, avoiding any allegations which would bestow jurisdiction on equity. On appeal we held that, since there had been a change in the allegations as to jurisdiction, the first complaint was not binding upon the plaintiff. In the instant case, however, the appellee argues that “the appellant has not filed a new cause of acdon but has simply substituted the appellee in place of the City of Little Rock.” In reply the appellants bolster their position by citing Bunch v. Launius, Chancellor, 222 Ark. 760, 262 S. W. 2d 461 (1953), wherein it is stated:

“* * * A formal amendment may relate back to the filing of the original pleading, but the rule is otherwise when the new pleading goes to a matter of substance, such as change in the party defendant.”

In Campbell v. Coldstream Fisheries, Inc., supra, the plaintiff filed a new action, but for the same cause; the “cause of action,” therefore, remained the same, as is true in the case at bar. The present complaint is one of substitution of the appellee for the city as a party defendant. It thereby “goes to a matter of substance” as specified in Bunch v. Launius, Chancellor, supra. It is also significant to note that the city answered the original complaint by specifically denying that it was acting in a proprietary capacity prior to the time that appellee was joined as party defendant. In the case at bar, any action taken before the appellee became a substituted party was certainly not binding upon appellants with respect to appellee.

Reversed.


author: Carleton Harris, Chief Justice.

text:
    ALLIED TELEPHONE CO. et al v. Leo RHODES
    5-5144
    454 S. W. 2d 93
    Opinion delivered May 11, 1970
    [Rehearing denied June 15, 1970.]

      House, Holmes ir Jewell, for appellants.

      Bruce Bennett, and Jack Lessenberry, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Leo Rhodes, appellee herein, was admittedly an employee of Allied Telephone Co., one of the appellants herein, on May 9, 1966. Rhodes filed a claim asserting that on May 9 of the aforementioned year, he suffered an injury to his fourth and fifth lumbar vertebrae while helping to move heavy equipment through a door at the Greenbrier office of appellant company. Though the evidence is somewhat confusing, it appears that he did not go to the office for several days, but was carried on. the payroll full-time. On May 23, Rhodes consulted Dr. D. W. Langford, a chiropractor of Conway. Langford took X-rays and his diagnosis was that Rhodes had suffered a subluxation of the fourth and fifth lumbar vertebrae. Five visits were made from May 23 through May 30. Langford said he advised that heat and hot baths would be helpful in relaxing the muscles of the spine. The doctor said that adjustments given were beneficial to Rhodes and his report reflected that he pronounced Rhodes able to resume work as of May 27. The doctor’s bill in the amount of $40.00 was paid by appellants, and Langford was advised that the carrier would not be responsible for further treatment. Rhodes returned to duty and the payroll records of the company reflect that he worked at regular duties, including some overtime hours, until July 26, 1966, when Rhodes was involved in a one car accident between 1 and 2 A.M., as he was returning from Conway to his home in Greenbrier. On July 29, appellee was discharged because of unauthorized use of a company vehicle. No claim was made for any alleged injury in the car accident, appellee’s claim being based entirely on the May 9 incident. Rhodes has not worked since that time, and the record reflects that thereafter he has been observed or treated by numerous doctors including Dr. Dunaway of Conway, Dr. Carruthers of Little Rock, who X-rayed him at St. Vincent’s Hospital, Dr. James R. Morrison, radiologist, a number of doctors at the Veterans Hospital, and Dr. Hundley of Little Rock, who filled out the application for social security benefits. Dr. Robert Watson, neurosurgeon of Little Rock, operated on Rhodes on two occasions. Though all of these doctors were mentioned by appellee, the record contains only the testimony and reports of Drs. Langford, Morrison, and Watson. The claim was first heard by a referee, who filed an opinion on May 16, 1968, finding that on May 9, 1966, claimant suffered a compensable back injury; that claimant lost no compensable time; further, that Rhodes was involved in an auto accident in a company vehicle but suffered no personal injury; that the claimant was in the course of his employment at the time of that accident. The referee found that claimant’s back condition was not caused by the injuries of May 9, 1966, or July 26, 1966, nor was his condition aggravated by either accident. The claim was accordingly denied and dismissed. On appeal, the full commission affirmed the referee except that they disagreed that the accidental injury of July 26 arose out of and in the course of claimant’s employment. Rhodes then appealed to the Circuit Court of Faulkner County, and on June 12, 1969, that court found that the opinion and finding of the commission was “not based upon substantial evidence nor a preponderance of the evidence”, and held that Rhodes was “permanently and totally disabled and there is no testimony to the contrary”. The order of the commission was reversed and that tribunal was directed to enter an award in accordance with the opinion of the Faulkner County Circuit Court. From the judgment so entered, appellants bring this appeal.

At the outset, let it be remembered that in making our determination, we are only concerned with whether there was substantial evidence to support the findings of the commission. Stout Construction Co. v. Wells, 214 Ark. 741, 217 S. W. 2d 841.

Before discussing the medical testimony, we might mention that Roy Montgomery, a repair man for Allied Telephone Co., testified that he was present when Rhodes stated that he had strained his back while lifting something. Montgomery said Rhodes was off work three or four days, but that he remembered that Rhodes did work during May, June, and July. The witness testified that during the months of June and July, he would see Rhodes nearly every day, the latter being a supervisor who would direct Montgomery and some of his fellow employees where to go and what to do. Montgomery did not note Rhodes complaining about his back after the first few days, and he also said that he had heard complaints by appellee relative to his back prior to the date of the accident.

We have already mentioned the testimony of the chiropractor, Dr. Iangford. The deposition of Dr. James R. Morrison, associated with St. Vincent’s Hospital in Little Rock, was offered by appellee. Morrison interpreted X-ray films which were made on January 20, 1967, and also read films from Conway Memorial Hospital dated August 3, which had been taken at the direction of Dr. Dunaway. Dr. Morrison said:

“The routine films here on January 20, 1967, showed what appeared to be a minimal loss in height of the 4th lumbar vertebral body, which would appear to be a very definite compression fracture of this area. This was the only area of injury on the initial films. There was a previous myelogram at that time. We did have special bending films of his back on January 20, ’67, with the patient’s back flexed and extended, and these showed some limitation of motion throughout his lumbar area. * * * *

“Ordinarily it takes an injury of some significance to produce this, but certainly in older people we do see compression simply from bending' over, and stepping off curbs, and this sort of thing.”

Morrison said that he had had occasion to read his colleague’s (Dr. Campbell) diagnosis of the film made at Conway and that the witness and Campbell reached the same conclusions.

On cross-examination, the witness said that he had never examined Rhodes, and that he was not attempting to say that there was any causal connection between appellee’s condition and anything that might have happened in the past. When asked what he meant by the term “compression fracture”, the doctor replied:

“I mean that the vertebral body in question, the 4th lumbar, has definitely lost its height. There’s a very definite loss in the height of this body, which means it has been compressed to lose this height. Now, we use the term compression fracture and compression injury rather loosely in this business, but I think we’re talking about the same thing.”

Upon further interrogation, Dr. Morrison said that it was entirely possible for a compression fracture to be caused by diseased bone.

Appellants offered the deposition of Dr. Robert Watson of Little Rock, who stated that Rhodes had been sent to him by Dr. Dunaway at Conway. He said that Rhodes gave him a history of lifting some heavy equipment about six weeks prior thereto; that Rhodes did not think he was hurt at the time, but after a few days was treated by Dr. Langford. Appellee had related that he had been back at work for about three weeks when he had the automobile accident, this last causing him to go to Dr. Dunaway, who subsequently sent him to the witness. In his report, Watson said that Dunaway had sent Rhodes to him because he thought claimant had a fractured lumbar vertebra, but Watson stated that he had found no evidence to sustain such a finding. The doctor said there was something wrong with the vertebra “but it isn’t a fracture”. Rather,-‘‘it’s an absorption or destruction or a shrinking up pj-.'the vertebra”. Dr. Watson stated that the lifting incident was not a precipitating factor, “it was a coincidental factor”. Further, “I do not think that the condition aggravated or added pathology. I do think that lifting condition brought to his attention, or brought into the picture, the fact that he had some existing abnormality in the back”. When asked if he found any evidence of a' compression fracture of L-4, Watson replied:

“A compression fracture would be a presumptive diagnosis when one first looked at an x-ray and saw that the body was mashed down in shape in contrast to the other vertebra. So a compression fracture is an acceptable presumptive opinion but I had the advantage of opening up this man’s back and seeing the bone and seeing the content of the bone and this is diseased bone rather than fractured bone and this disease was granular in that I could take a spoon, so to speak, and scoop the content of this bone, in contrast to its normal bony hardness.”

The doctor added that he found no evidence of a crack or a healing crack in appellee’s vertebra at L-4, and he said the content of the bone was not what one would observe in a fracture situation. “This was an over-all involvement of the whole vertebra, a destructive change.”

Further, from the testimony:

“A myelogram was done and this myelogram showed that there was something, and that ‘something’ just showed shape, and something was pushing on the nerve at that level, so I operated upon the man and did a laminectomy and that is a procedure in which one separates the muscle away from one side of the back and cuts down into the bony covering of the spine, enough so, as to permit one to get into what we might refer to as the marrow of the spine. With this man I found an unusual appearance, enough to prompt me to send this tissue to the laboratory because I suspected a malignancy.. This was not a run of the mill ruptured disk situation. Then, despite time and treatment, the man was continuing to be worsened. Nobody is infallible, I thought maybe we’d missed something. For that reason I repeated the man’s myelogram and found the condition to be even all the more progressed. And that prompted the second operation.”

When asked about Langford’s X-ray, Watson replied, “I did not find any subluxation. I found a diseased vertebra.” When interrogated about Morrison and his report, the doctor stated:

“Yes, sir, he’s fully qualified, but unfortunately he is using the word ‘compression’ which is fine, this is compressed, we all agree it’s compressed, but he is adding the word ‘fracture’ for which there is no substantiation. It’s a hasty assumption simply because it’s mashed down does not mean that it’s fractured.”

We have set out quite a bit of Watson’s testimony, since the circuit court, in reversing the commission, found that the order of the Workmen’s Compensation Commission was not based upon substantial evidence. It is, of course, immaterial whether this court agrees with the findings of the doctor, but the fact remains that we certainly can not say that Watson’s testimony did not constitute substantial evidence. The trial court mentioned the fact that Watson was unable to definitely define the cause of Rhodes’ condition but this does not mean the doctor’s testimony loses its substantiality. A similar contention was made in U. S. Fidelity & Guaranty Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266, it being contended that the evidence was insufficient since the claimant’s medical witnesses were unable to pinpoint the specific mechanism precipitating Dorman’s heart attack. We held the contention to be without merit.

The circuit court stated that in reaching its conclusions, it also considered the fact that the claimant was found totally and permanently disabled by the Social Security Administration (March 31, 1967), and by the Veterans Administration (November 7, 1966). These awards are not perdnent to the finding by the Workmen’s Compensation Commission. There really is no dispute about the disability of Rhodes; the only question is “What caused the disability?” Actually, it appears from reading the opinion of the circuit court that the court was, at times, weighing the testimony rather than simply determining whether there was substantial evidence to support the findings of the commission.

The court mentioned, and appellee argues, that the referee found that the claimant suffered a compensable back injury on May 9, 1966, and it is true that this is the opening line in the referee’s “findings”, although the claim was denied and dismissed. This, argues appellee, is a conflict in the opinion, and though the commission did not mention this' “conflict”, appellee asserts that since the commission itself made no findings, it meant to adopt those of the referee.

We find no merit in the contention. In the first place, we have several times held that no weight is to be attached to the findings of the referee. Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166, and cases cited therein. The commission made no such finding, but, at any rate, it will be remembered that the $40.00 bill submitted by Dr. Langford was paid by appellants. It will also be remembered that Langford’s report reflected that Rhodes was able to resume work as of May 27. The referee found that the payroll records reflected that claimant was not absent a sufficient number of days to receive temporary total benefits. We have held that medical payments are a part of compensation, Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211, and the referee likely had this in mind in making the finding heretofore mentioned.

As previously stated, we are only concerned with whether there was substantial evidence to support the commission’s findings, and we are of the opinion that' Dr. Watson’s testimony met that test.

It follows that the judgment of the circuit court is reversed, and the case is remanded with directions to reinstate the order of the commission denying compensation.

It is so ordered.

Jones, J. dissents.

Fogleman, J. not participating.

      Rhodes, on March 31, 1967, was awarded $128.40 a month in social security benefits for total disability, and it also appears that on November 7, 1966, he had obtained an award of $84.00 a month from the Veterans Administration for a non-service connected disability.

      It is not at all clear why this finding was made since no claim was filed for compensation. The commission mentioned that no claim was actually made for the incident on July 26, and pointed out that the record of the hearing before the referee reflected that claimant’s attorney objected to certain questions relating to the car accident and stated that the claim was for the accident that occurred on May 9, 1966.

      Pathology reports revealed small single glands of an abnormal character, but evidences of cancer were not found.


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. HUMBLE OIL COMPANY
    5-5228
    453 S. W. 2d 408
    Opinion delivered May 11, 1970

      Thomas Keys and Billy Pease, for appellant.

      Chowning, Mitchell, Hamilton ir Burrow, for appellee.
   George Rose Smith, Justice.

The highway department brought this action to condemn a 2.28-acre tract owned by Nealie McMillan Hardy and others. The landowners had leased a small part of the land — a rectangle 25 by 50 feet — to Humble Oil Company for ten years. Humble had constructed on its plot a tall advertising sign, consisting of two substantial steel columns supporüng a crossbar bearing the letters ESSO and arrows pointing toward a nearby Esso service station. The jury awarded $6,000 to the landowners and $1,100 to Humble. This appeal questions the latter verdict only.

Both in the trial court and here counsel for the highway department have insisted that Humble is entitled to nothing, because its sign is removable personal property. It is argued, on the authority of Ark. State Highway Commn. v. Fox, 230 Ark. 287, 322 S. W. 2d 81 (1959), that Humble’s only measure of damages is the amount by which the fair market value of the lease exceeds the rent that would be payable during the remainder of the term. Humble did not offer any witness who attempted to evaluate the leasehold in exactly that manner. Moreover, says the appellant, it was held in the Fox case that in a condemnation suit a lessee cannot recover the cost of removing personal property from the land. The appellant concludes that there is therefore no support in the record for Humble’s $1,100 verdict.

We cannot, in fairness, sustain that argument. The concrete foundation for Humble’s sign was certainly not a removable chattel. The sign as a whole cost $6,663.08. From the undisputed proof the jury could have valued the concrete foundation at more than the amount of the verdict. The foundation consisted of two monolithic concrete blocks, each surmounted by an aboveground platform, poured at the same time, to which a steel column was bolted. Each block was 141i feet square and 5 feet thick; each platform was 3 feet square and 18 inches thick. Thus the entire foundation comprised about 79 cubic yards of concrete, which, according to the proof, cost an average of $16.50 a yard, or a total of $1,303.50. The ten-year lease had almost nine years to run at the time of the taking. Hence the unrecovered cost of the concrete alone, with no allowance for forms, steel, bolts, labor, etc., exceeded the amount of the verdict.

The evidence that we have narrated was a competent basis for the verdict, even if we assume that the ultimate issue was the value of the unexpired lease. Nichols points out, in discussing improvements on leased property, that “the value of the fixtures lost because incapable of removal is sometimes admitted, not as proving specific items of damage, but as a means of showing the value of the unexpired term.” Nichols, Eminent Domain, § 13.121 (rev. 3d ed., 1962). This is unquestionably a case for resort to such evidence. In fact, Humble’s property would obviously be taken without just compensation if it were denied recovery for its investment in the huge blocks that served as the base for its removable sign. We are not impressed by the appellant’s argument that the foundation must be treated as being removable simply because Humble’s lease allows it to remove its improvements at the end of the term. The truth is that the concrete blocks are not removable. It would be a manifest injustice to allow the State to take that property without compensating the lessee therefor, upon the legal fiction that the clause in the lease had changed the essential nature of the blocks.

There is a second issue — a minor one. Some weeks after the trial Humble, at the urgent request of the highway department, took down the sign (at a cost of $817) to clear the land for the proposed highway construction. In the court below the highway department sought to obtain possession of the sign itself, on the theory that the court had held it to be a part of the real estate. We do not find that positive ruling in the record, but in any event . the court was right in holding that any such cohtroversy-us: a matter for a separate lawsuit, since ,tne . only issue in an eminent domain proceeding is the value of the property taken. Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65 (1951).

Affirmed.

Brown, J., not participating.

Byrd, J., concurs.


text:
    ARKANSAS STATE HIGHWAY COMM’N v. Roy CARRUTHERS et ux
    5-5232
    453 S. W. 2d 407
    Opinion delivered May 11, 1970

      Thomas Keys, Kenneth Brock ir Hubert Graves, for appellant.

      Gordon, Gordon ¿r Eddy, for appellees.
   George Rose Smith, Justice.

This is the second appeal in a condemnation case in which the highway department is taking, as a right of way for interstate 40, a 29.27-acre strip (plus a construction easement) across the appellees’ lands, which total 740 acres. The first judgment was reversed because of an error by which hearsay testimony about the cost of a bridge was admitted in evidence. Ark. State Highway Commn. v. Carruthers, decided April 7, 1969, 439 S. W. 2d 40. At the second trial the verdict was for $50,000. The department relies upon two points for reversal.

First, it is argued that the landowners should not have been allowed to show the cost of an “all-weather” road that is assertedly needed to provide access to part of. the property. The road in question, which includes a bridge, will be a means of access to an 85-acre parcel that was already isolated on the east by Point Remove Drainage Canal and that will hereafter be isolated on the south by Interstate 40.

It is recognized by the appellant that if the access road is really needed, then its cost is a proper matter for the jury to consider in fixing the landowners’ just compensation. Ark. State Highway Commn. v. Speck, 230 Ark. 712, 324 S. W. 2d 796 (1959). But the appellant insists that an all-weather road is not required to restore the property as a whole to its former usability, because the landowners did not have all-weather accessibility before the 85-acre tract was isolated by the new interstate highway.

On the record we cannot sustain the appellant’s contention. The landowners’ expert witness on the cost of building the road did not use the term “all-weather” (which was used only by the landowners’ attorney in an unanswered question to the witness). Instead, the witness said that in his opinion a crushed-stone or gravel road is going to be needed to provide access to the isolated tract. Whether such a road will truly be required to restore the tract’s former accessibility was a question of fact upon which the landowners offered substantial evidence to sustain their position. The highway department, despite its knowledge from the testimony at the first trial that the point would be a major issue in the case, did not submit proof to show either that the crushed-stone road will not be needed or that it will not cost as much as the landowners’ witness estimated. We conclude that the issue was properly a question of fact for the jury’s determination.

Secondly, the appellant, citing Ark. State Highway Commn. v. Toffelmire, 247 Ark., 444 S. W. 2d 241, argues that the landowners’ expert value witnesses were improperly allowed to exaggerate the damage to part of the property by valuing it . as an airport site before the taking and as agricultural land after the taking. In the Toffelmire case we held that improvements should not be valued for residential use before the taking but for commercial use afterwards.

We find no error. In the case at bar what is referred to as the Morrilton Airport was situated on the property and was owned by the landowners. Used mainly for crop dusting, it comprised a 4,000-foot cleared runway plus appurtenant improvements. The interstate highway will cut the runway in two, destroying the airport. The landowners’ witness Pearce, for example, assessed $11,500 damages for the loss of the airport and also testified that after the taking an entire 118.7-acre tract, of which the airport had been a small part, would be reduced in value by $15 an acre for agricultural purposes.

In the Toffelmire case the jury had no way of reconciling the two conflicting valuations of the same structure. But here the airport was destroyed, so that no after-valuation was assigned to it as such. We find nothing in the testimony that could have confused or misled the jury, which in this instance had all the facts before it. Moreover, even if an error were shown, it would apparently be substantially less than 1% of the verdict and would be susceptible of correction by a remittitur. The highway department, however, has not requested that relief nor furnished us with the evidence necessary to the computation of the trivial excess; so we do not explore tíre matter of a possible remittitur.

Affirmed.


text:
    Ethel CLAY et al v. Helen BENTON, Adm’x
    5-5353
    453 S. W. 2d 405
    Opinion delivered May 11, 1970

      Curtis Ridgeway, for appellants.

      Street & Plunkett, for appellee.
   Lyle Brown, Justice.

This appeal concerns the interpretation of a will. Appellants, being six of the many nieces and nephews who were beneficiaries, contend that they were bequeathed all bank stock owned by the testatrix. The trial court did not so interpret the will and appellants press the single point that the will created an exclusive bequest to them as respects all the bank stock.

That part of the brief holographic will with which we are concerned reads:

Feb. 16th, 1957. I, Effie Jeanette Heard of 175 So. St. S. W: Camden (Cullendale Station), Arkansas, Ouachita County, I declare this to be my last will and testament.
To brother Johns boys Lawton and Loonie I give five (5) dollars each and to each of brother Johns girls I give (10) ten dollars each. To Eulis Z. Munds I give my home and all its contents. The rest of my possessions to be given to the other nieces and nephews, divided equally.
I want my bank stock to be divided between Ethel, Gladys, Opal, Corinne, Max and Margaret and they are to keep it at least 2 years and then if they decide to sell it, to sell to some of the other nieces or nephews. In other words keep it in the family as I know it is a good investment. This is not to be extra or more than the rest but part of their part of my possessions.

The appellants who are contending for the bank stock are those nieces and nephews named in the last recited paragraph.

The chancellor held that the testatrix intended to accomplish three paramount purposes:

(1) To leave a small, specific amount of money to the surviving children of Brother John;
(2) To devise her home and its contents to her nephew, Eulis Z. Munds; and
(5) That all the rest and remainder of her estate at the time of her death was to be divided equally between her other nieces and nephews, share and share alike.

It is entirely probable that at the time Mrs. Heard executed the will her estate was such that the named nephews and nieces could have taken their shares in bank stock and their respective bequests would not have exceeded their proportionate share. But the status of Mrs. Heard’s estate changed considerably before her death in 1968. In 1957 (the date of the will) she had 240 shares of stock in Malvern National Bank. Mrs. Heard subsequently became the owner of 240 additional shares of bank stock at no direct cost to her. The bank issued the stock from stock dividends which had accumulated in the undivided profits over a period of several years. Consequently, more than fifty per cent in value of her estate at the time of her death consisted of the bank stock. There were seventeen nieces and nephews (other than John’s children and Eulis Munds) who were entitled to share equally in the residuary estate; therefore, had all the stock been divided equally between the named nieces and nephews they would have received far more than their proportionate share. In order to conform to the specific direction of equal division and at the same time endeavor in a practical way to keep the bank stock in the family, the chancellor decreed this manner of stock distribution:

[T]hat the six persons named in the will shall have the right to elect to have stock issued to each of them at $102.00 per share value up to the amount, or approximate amount, of their distributive share. After these six have made their election, then any of the other eleven nieces and nephews shall have the same right of election to the extent of the remaining shares of bank stock.

The mechanics of distribution of the bank stock as set up by the chancellor is not attacked on appeal. We therefore conclude that if the equal distribution of the residuary estate be found by us to be correct, then there is no objection to the manner in which it was distributed.

The testatrix, in no uncertain terms, made it very clear that the remainder of her estate, after the specific bequests in the first paragraph, was to be divided equally among the remaining seventeen nieces and nephews. That direction is stated in the first paragraph. Then in expressing her wishes about distribution of the bank stock, she added a precautionary sentence which dispelled any idea of unequal distribution. “This [bank stock] is not to be extra or more than the rest but part of their part of my possessions.” The paramount rule of construction of a will is to ascertain the intent of the maker and preferably from the four corners of the instrument. Guided by the recited rule we can reach but one conclusion and that is a bequest of equal distribution of the residual.

Affirmed.


text:
    Johnny James JONES v. STATE of Arkansas
    5505
    453 S. W. 2d 403
    Opinion delivered May 11, 1970
    [Rehearing denied June 1, 1970.]

      Walton Mauarras, for appellant.

      Joe Purcell, Attorney General; Michael Barrier, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant, Johnny James Jones, was found guilty of rape and sentenced to thirty years imprisonment. His plea for reversal is based on a single point, namely, alleged improper remarks in the closing argument of the prosecuting attorney.

The defendant elected not to testify. The prosecutor made these statements concerning the whereabouts of the accused on the morning of the alleged rape:

I leave you with a thought. Johnny James Jones knows where he was on that morning. . . . Johnny James Jones knows where he was on the 9th of July at 8:30 in the morning. There are two people who know where he was — Mrs. Linda Hicks [prosecutrix] and Johnny James Jones.

Defense counsel immediately interposed this objection:

Your honor, at this time I would have to object to the reference, ‘Johnny James Jones knows where he was on the 9th of July.’ We do not have to prove his innocence. The State proves guilt and Mr. Jones certainly does not have an obligation to tell the jury where he was.
THE COURT: That’s true. Your objection is sustained in that respect.

The closing argument was shortly concluded without further incident. Then followed the instructions to the jury as to forms of verdicts, whereupon the jury retired to deliberate. Shortly thereafter defense counsel moved for a mistrial “with respect to Mr. Thompson’s closing argument and his reference to the failure of the accused to take the stand and state his presence on the morning of July 9, 1969.” The motion was denied. Appellant contends here that the trial court committed reversible error in overruling his motion.

The fallacy in the point for reversal lies in the fact that the second objection came too late. Our holdings are in accord with the general rule stated in Wharton’s Criminal Law and Procedure (1957), § 2079:

The remedy for any improprieties on the part of the prosecuting attorney in summing up is to interpose immediate objection. . . . Generally the argument must be interrupted at the moment it is made; to delay until the end of the argument is generally fatal ....

A case in point is Shipp v. State, 241 Ark. 120, 406 S. W. 2d 361 (1966). After the jury had retired, defense counsel moved for a mistrial because of an alleged improper statement made in the closing argument of the prosecuting attorney. We held that the objection “came too late and the point cannot now be urged.” Also, see Childs v. State, 243 Ark. 62, 418 S. W. 2d 793 (1967). The reason for the rule is obvious. The most appropriate time for the trial judge to evaluate an error in the proceedings is at the time an error is made; in most instances the judge can cure any such error by appropriate admonition. In fact in the instant case we think the trial court could have removed any objectionable inferences contained in the prosecutor’s statement had the proper request for admonition been timely made.

Affirmed.


text:
    Lois ROGERS v. STATE of Arkansas
    5497
    453 S. W. 2d 393
    Opinion delivered May 11, 1970

      Jeff Duty, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

The only point for reversal of his felony conviction of possession of stolen goods asserted by appellant is the failure of the state to prove the value of a 1966 Dodge Charger automobile which was the subject matter of the charge against him. He is correct in his assertion that the state offered no evidence that the automobile was of a value of more than $35, as charged in the information. The vehicle was neither offered in evidence nor viewed by the jury.

The state first argues that appellant is barred from raising this point on appeal, by failing to mention the value of the property in his requests for a directed verdict at the close of the state’s case and for an instructed verdict of not guilty at the conclusion of all the testimony and by failing to preserve the point in his motion for new trial. We find no merit in this argument. A motion for a directed verdict is certainly sufficient to raise the point that the state has failed to prove an element essential to a conviction of the crime with which a defendant is charged. It is academic that, in order to sustain a conviction of the felony charged, the property involved must be shown to have had a value in excess of $35. Ark. Stat. Ann. §§ 41-3934, -3907 (Repl. 1964). It was asserted in the motion for new trial that the jury verdict was contrary to the evidence and contrary to the law and the evidence. Additional grounds for that motion were that the court erred in overruling appellant’s motion for an instructed verdict at the conclusion of the state’s case and that the court erred in refusing defendant’s request for an instruction to the jury to return a verdict of not guilty made at the conclusion of the whole case. Certainly these allegations were sufficient to preserve any point raised by the motions for a directed or instructed verdict.

Our statute covering the crime of receiving or possessing stolen property provides that one found guilty be punished as in cases of larceny. Ark. Stat. Ann. § 41-3934 (Repl. 1964). This matter seems to have been settled as to larceny, m a similar background, by the case of Ware v. State, 33 Ark. 567. At that time Ware could not have been guilty of grand larceny, of which he was convicted, unless the hog found in his possession was of a value in excess of $2. The hog was described as fat, but no witness swore that it was of any value. Because of this failure of proof, that conviction was reversed and the cause remanded for a new trial. Albeit dictum, the necessity that there be proof to show that the market value of a stolen chain saw was in excess of $35 to support a grand larceny conviction was stated in Hammond v. State, 232 Ark. 692, 340 S. W. 2d 280.

The Attorney General makes a very plausible argument that the jury might infer that the value of the car at the time of its theft was over the amount of $35, saying that the value of the automobile was of such common knowledge as to be within the experience of any person. In support of this argument, he points out that the owner testified that he purchased the automobile in February 1966 by trading in another motor vehicle and paying a cash balance, and that, on the day before the car was stolen, it had been completely refurbished and painted. In this process, the owner said, a new vinyl top and four new tires were put on it four days prior to the day it was stolen. No authority for this position is cited in the state’s brief, nor do we know of any.

On the other hand, the authorities are generally contrary to the idea that a jury, without having viewed the property, can arrive at a value of property by presumption or inference, in the absence of any evidence on the subject. As a general rule there is no presumption as to the value of property and proof of value is generally required whenever value is in issue. 29 Am. Jur. 2d 285, Evidence § 239. We have long held that direct proof of value was not necessary where the crime did not depend upon the value of the property stolen so long as there is proof of facts from which it might be inferred that it had some value. Houston v. State, 13 Ark. 66.

The general rule, however, when value determines the grade of the offense or the punishment therefor, is that applied in Ware v. State, supra, and is aptly stated at 52A C. J. S. 568, Larceny § 97, as follows:

In jurisdictions where the distinction between grand and petit larceny still exists, or where the grade of the offense, or the punishment therefor, is determined by the value of the thing stolen, in order to justify a conviction of grand larceny, or the higher grade of the offense, the state must prove a value equal or exceeding the diacritical amount.

We have always held that it is necessary to prove the value of stolen property in order to sustain a conviction of grand larceny, except where the statute provides that the unlawful taking of certain types of property constitutes grand larceny, regardless of value. Pillow v. State, 186 Ark. 1198, 52 S. W. 2d 964; Woodall v. State, 200 Ark. 665, 140 S. W. 2d 424. Like every other element of the crime, when the value of the stolen property is an issue, it must be proved beyond a reasonable doubt. State v. Boswell, 107 W. Va. 213, 148 S. E. 1 (1929); State v. Wood, 46 Iowa 116 (1877); Annot. Ann. Cas. 1912A 895, 896. The law does not take judicial notice of the value of personal property, so proof of value is essential where the punishment depends upon the value in issue. I Wharton’s Criminal Evidence 484, § 258 (10th ed. 1912). Consequently, in the absence of evidence upon the value of the property involved, where it is necessary to determination of the grade of the offense and the penalty, the jury may not indulge in presumptions to supply the omission. Burrows v. State, 137 Ind. 474, 37 N. E. 271 (1894).

In following and applying the general rule, the United States Court of Appeals for the Fourth Circuit said that a jury should not be allowed to speculate that the value of 72 rifles stolen from an armory was more than $100, merely from their appearance. That court said that it was as incumbent upon the prosecution to establish this fact as it was to prove the identity of the thief and the ownership of the property. United States v. Wilson, 284 F. 2d 407 (1960). See also, Jalbert v. State, 95 So. 2d 589 (Fla. 1957); and Cooper v. State, 43 Ala. App. 385, 191 So. 2d 224 (1966), cert. denied, 280 Ala. 711, 191 So. 2d 229 (1966).

It has been said that, in distinguishing between grand and petit larceny, the rules for establishing values in civil cases are often held applicable. State v. Doepke, 68 Mo. 208, 30 Am. R. 785 (1878); 2 Wharton’s Criminal Law and Procedure 71, § 449 (1957). In Utley v. Heckinger, 235 Ark. 780, 362 S. W. 2d 13, it was held that the value of a particular 1954 Pontiac automobile was not established by testimony by one witness that an ordinary automobile of that model and make was worth from $1,000 to $1,200 in 1959, and by another that the particular vehicle was in good condition at that time. At least as strict a rule on value as that applied in civil cases should be utilized where one’s liberty can only be taken after all the elements of his crime have been proved beyond a reasonable doubt.

It may well be argued that such a strict rule should not be applied when it might easily be said that it is common knowledge a 1966 Dodge Charger was worth at least $35. The defect in this approach is that the precedent would, in many cases, pose a riddle as to the sufficiency of common knowledge of values, first at the trial bench and again at the appellate level. Appellee has aptly called our attention to the following quotation used by Judge Frank Smith in answering a suggestion of inconsequentiality in Byler v. State, 210 Ark. 790, 197 S. W. 2d 748:

“ ‘Twill be recorded for a precedent and many an error by the same exaniple will rush into the state. It cannot be.”

The judgment is reversed and the case remanded for a new trial. ____

      There is dictum similar to the state’s argument in State v. Phillips, 106 Kan. 192, 186 P. 743 (1920). See also, State v. Lawrence, 120 Utah 323, 234 P. 2d 600 (1961), where the court reversed a grand larceny conviction because the trial judge took judicial notice that an automobile was worth more than $50 and so instructed the jury. In the latter case, the court never decided whether, it was even proper for the trial judge to have taken judicial notice of the value of the car.

      For authorities indicating that production of the goods involved before the jury may be evidence of value, see State v. Peach, 70 Vt. 283, 40 A. 732 (1898); 2 Wharton’s Criminal Evidence 609, § 673 (12th ed. 1955).

      In this case the stolen property was a two-door Ford car, which was overtaken by a state trooper after it passed him at a high rate of speed. During the chase, speeds sometimes reached 100 miles per hour.

      There was some evidence from which it might have been inferred that this automobile was not in operating condition when it was in appellant’s possession.


author: J. Fred Jones, Justice.

text:
    C. E. BENNETT v. Dean WISDOM d/b/a Wisdom Realty
    5-5245
    453 S. W. 2d 396
    Opinion delivered May 11, 1970

      Pope, Pratt, Shamburger, Buffalo & Ross; By: Pat Moran, for appellant.

      Givens, Capps & Murphree, for appellee.
   J. Fred Jones, Justice.

Dean Wisdom, d/b/a Wisdom Realty, sued C. E. Bennett in the Pulaski County Circuit Court for a realtor’s commission of ten per cent on the sale price of real property in the amount of $6,000. The trial court, sitting as a jury, rendered judgment for Wisdom against Bennett for $600 and Bennett has appealed. He relies on the following point for reversal:

“The court erred in finding that a Contract existed between the parties upon which a real estate commission could be based.”

The only written instrument offered in evidence was an offer and acceptance form signed by Jimmy McClung as buyer and Dean Wisdom as agent, wherein McClung offered to buy “five acres C. E. Bennett property.” Among other provisions of the offer, McClung agreed to pay $6,000 for the property with $300 in cash and the balance in 84 monthly payments of $87.43 each. McClung’s offer was not accepted by Bennett and is only important here as some evidence of Wisdom’s compliance with his verbal contract. This is not a suit for specific performance, but is one for a realtor’s commission based on a verbal contract for the sale of real property.

The trial court concluded from highly conflicting evidence, that an enforceable verbal contract was entered into by Bennett and Wisdom whereby Bennett agreed to pay Wisdom a ten per cent commission on the sale price of five acres of Bennett’s land if Wisdom would find a buyer who would pay $6,000. The trial court also found that Wisdom had performed his part of the contract by finding a purchaser for Bennett’s property who was ready, able and willing to purchase the property for the price and on the terms laid down by Bennett, and that Wisdom had earned the commission that he and Bennett had agreed upon. See Belyeu v. Hudson, 179 Ark. 657, 17 S. W. 2d 865. On appeal from a law court decision, this court is bound by the substantial evidence rule which has been announced and reiterated in our decisions too numerous to mention. Under that rule we can only concern ourselves with whether there was any substantial evidence to support the judgment of the trial court in this case, and we conclude that there was.

The facts upon which the trial court rendered its judgment must be gleaned from the conflicting testimony, and it is in such situations as this, that the appearance and demeanor of the witness while testifying becomes so important to a chancellor in an equity case, or to a jury, or a trial judge sitting as a jury, in a law case. In such cases, where a just and proper decision must rest on the truth in conflicting evidence, we have always recognized the importance of seeing and hearing the witnesses testify, as the trial judge and jury are permitted to do; as opposed to reading from the record what the witness said, as we are required to do on appeal.

Mr. Wisdom testified that he had been in the building contracting business and had known Mr. Bennett and done business with him for a number of years. He says that in November, 1968, Mr. McClung contacted him in regard to purchasing some real property on which to place some house trailers. He testified that he entered into a verbal contract with Bennett to sell five acres of Bennett’s property to McClung. Mr. Wisdom says that he called Mr. Bennett concerning four acres which Mr. Bennett did have for sale and was advised by Bennett that the four acres had already been sold. He says that Bennett advised that he had another five acre tract he would sell. Wisdom testified that he made an appointment with Bennett to look at the five acre tract, and he continued his testimony as follows:

“I picked him up at his house and we drove over to the North end of this property which is a tract that appears to be about twenty acres. He showed me where the two North corners were, we walked along the North line of the property, he showed me where there was a one acre tract cut out of the Northeast corner of this twenty that belonged to the Pulaski County School Board, For this reason, this particular tract he was agreeing to sell would have, to be irregular in shape. We walked along the West line of the property and criss-crossed the property and back to the East side where our car was located. We sat in my car and we took a piece of scratch paper and determined how much additional footage we would have to give in order to make this a full five acre tract since there was one acre missing out of the Northeast corner. I asked what price he wanted and he said Six Thousand Dollars.. I asked if he would be agreeable to paying a ten percent sales commission on the Six Thous- and Dollars and he said yes.
* * *
We drove back to his house and I let him out. The following day, I called Mr. McClung and told him I had some property I would like to show him, took him out there, he. and his wife . . . We walked over the property like Mr. Bennett and I had and discussed financing and what the monthly payments would be approximately. . . He said he needed a little time to think and talk about it. . . For the next three weeks, I kept in contact with Mr. McClung.
* * *
When Mr. McClung told me he was ready to make an offer, I said, ‘Let me contact Mr. Bennett again and see if the property was still available.’ This was on Saturday, the 16th of November. I called Mr. Bennett and I told him, I said, ‘My people are ready to make an offer on this property, have you sold. it or is it still available?’ He said, ‘No, Dean’ it’s sdll available.’ I said, ‘Well, I’ll get them together and make an offer and I’ll be back in touch with you.’ They came to my office on the Seventeenth and we drew an offer and I took some earnest money and that afternoon, I carried the offer to Mr. Bennett, presented it to him, we sat down in the front seat of my car and went over the offer. Mr. Bennett was agreeable to this offer. We again took a scratch pad and figured out how much extra footage he is going to have to give the man to get him a full five acres and Mr. Bennett had his pen in his hand and started to sign the offer and he said, ‘Does my wife need to sign this? and I said, ‘It won’t be necessary for her to sign this particular instrument, but she’ll have to sign the sales contract.’
* * *
Q. Did Mr. Bennett subsequently refuse to sell the property?
A. Yes, sir.
Q. Did you make . . . did you and Mr. Bennett have any discussion or conversation concerning your commission?
A. Yes, we did about the second or third day after this, I called Mr. Bennett and asked him to stop by, I would like to talk to him. This time we sat in his car and Mr. Bennett then agreed with me that this was what the property was worth and he would like to go ahead and sell it but his wife didn’t want to. I said, 'Well, buddy, you are putting me in a bad position with my client, I feel I have earned my commission, you don’t have to sell the property, but at this point, I have found you a buyer at the price which we agreed on and I feel you owe the sales commission.’
Q. Did he subsequently refuse to pay any sales commission?
A. Yes, sir.”

Jimmy McClung testified that he made an offer, and signed an offer and acceptance form, agreeing to pay $6,000 for some property belonging to Mr. Bennett and shown to him by Mr. Wisdom. On cross-examination Mr. McClung testified that he went to the property with Mr. Wisdom and Mr. Wisdom pointed out five acres.

Mr. Bennett testified that in November Mr. Wisdom contacted him in regard to some land and in this connection he testified as follows:

“A. I told him I had some land on the North side of the road and another parcel of land that I would sell five acres off of and he came down and we got in his car and drove over to this parcel of land and we went to this old school house property, parked his car right at the South corner of the school house property and walked out to the West side of the school house property, just across this acre and I told him I would sell five acres around this school house property.
Q. Was there any talk at that time between you and Mr. Wisdom about what commission he would be paid?
A. No, it wasn’t mentioned about the commission. He told me that man would give Six Thousand Dollars, the price of Six Thousand Dollars for the five acres and I told him I would sell five acres around the school house property and showed him and described it to him the best I knew how and showed him where the property was and the corner was.
Q. Was there anything at that time. . . this is on that meeting the first time he came to your house. . . was there anything said be-between you at that time relative to how this Six Thousand Dollars that he mentioned would be paid?
A. No, we didn’t discuss it. He said it would be a credit sale or something and I said, ‘I don’t care, I’d rather sell it and collect the interest anyway,’ that is the words I told him.
Q. Was there other conversation between you at that time, other than what you have testified about, the price or about the specific property?
A. There wasn’t anything said about ... he left and went bach and worked out this schedule and come back with this acceptance two or three weeks later.
Q. Did he have anything with him when he brought that offer and acceptance?
A. He was going to sell a strip across, completely across the North line.
Q. How did you know that?
A. He had a little sketch of paper where he had worked out these footages and amount of footage it would take for this acre of ground.
Q. Had there been any drawings or footages shown to you or had you drawn any for him before that time?
A. No, sir.”

On cross-examination Mr. Bennett testified as follows:

“Q. Mr. Bennett, you say you did agree to sell five acres around what would be the Northeast corner, is that correct?
A. Yes, sir.
Q. And that is on the North end of your property, isn’t that true?
A. Northeast corner of the property.
Q. But five acres would include a strip across the North line?
A. No, sir.
Q. Did you not point out the particular points that would mark the boundaries for this property you wanted to sell?
A. Yes, sir. * * * [T]he property is still for sale and to sell a five acre block around the school house property can still be bought, but I can’t close my road up on the North end when I finish my road. I would have a dead end street on all my property from the South which would be approximately ten or eleven lots on each side of this road that I am building. I would have a dead end street when I get to this strip he was talking about, a five acre strip across the back.
Q. But you did point out to Mr. Wisdom the area you wanted sold around the Northeast corner?
A. Yes, sir, and he came back with a strip across the property, across my road, my proposed road, and I said, ‘I can’t go like that.’ ”

The fact that Wisdom is a licensed realtor vests him with no benefits in this case outside the affirmative provisions of his contract with Bennett. Perhaps such contract should be within the statute of frauds but it is not. Dallas v. Moseley, 150 Ark. 210, 233 S. W. 1084; Blanton v. Jonesboro B. & L. Association, 176 Ark. 315, 3 S. W. 2d 964. So long as a realtor’s right to a commission may rest in oral contract, such contract may be proved by oral testimony; and so long as a contract may be proven by oral testimony, trial courts and juries must resolve conflicts in such testimony.

Had we been trying this case in the first instance, we are unable from the cold record alone to say whether we would have decided the issues in favor of Bennett or in favor of Wisdom as the trial court did. However, as the matter now stands, on appeal in this court, we are only concerned with whether there was any substantial evidence to sustain the judgment of the trial court, and we conclude that there was.

The judgment is affirmed.


text:
    John H. POINTER, Jr. v. STATE of Arkansas
    5462
    454 S. W. 2d 91
    Opinion delivered May 11, 1970
    [Rehearing denied June 15, 1970.]

      Bart G. Mullís, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen. for appellee.
   J. Fred Jones, Justice.

John H. Pointer, Jr. was appointed City Collector of Pine Bluff and took office on June 15, 1965. On July 9, 1969, he was tried before a jury and convicted of embezzlement in the Jefferson County Circuit Court. He was sentenced to five years in the Arkansas Penitentiary aad on appeal to this court he relies on the following points for reversal:

“The trial court erred in refusing to allow the defense the right to audit or examine the books and records of the City Collector’s office for a period of time prior to the time that the defendant took office.
The trial court erred when it allowed the plaintiff to introduce testimony concerning funds that were allegedly missing in the year 1965.
The trial court erred when it failed and refused to strike and quash the panel of jurors and to order preparation of a new jury list, fairly and properly chosen.
The court erred when it allowed the plaintiff to bolster its case in chief by use of rebuttal.
The court erred when it allowed a layman to identify the defendant’s handwriting.”

The appellant does not question the sufficiency of the evidence so we shall not elaborate thereon. The proof was directed to the embezzlement of $32,473 in city funds, through the simple but crude process of holding in reserve an ample supply of checks sent to the city in payment of accounts, such as occupation tax, and then depositing to the city’s bank account sufficient amounts in checks to equal the amounts of cash embezzled. Two sets of receipt books were used in an effort to allay, or at least delay, suspicion.

In treating the points raised by the appellant in the order presented, we find no merit in any of them. The appellant’s first point is without merit because the appellant’s rights were not prejudiced by the trial court’s ruling. The books and records of the city collector’s office are public records, and these records were at all times available to the appellant by virtue of the Freedom of Information Act, Ark. Stat. Ann. §§ 12-2801-12-2807 (Repl. 1968).

The appellant’s second point is without merit because the testimony concerning funds that were allegedly missing during the year 1965 pertained to the latter part of 1965. The trial court correctly ruled that any proof of appellant’s embezzlement in the last three years prior to the indictment on July 10, 1968, was admissible under the three year statute of limitations, Ark. Stat. Ann. § 43-1602 (Repl. 1964).

The appellant’s third point is also without merit. We have heretofore held that an accused does not have the right to have a jury of his choice from the panel selected by the jury commissioners, Stout v. State, 247 Ark., 448, S. W. 2d 636. We now hold that an accused in Arkansas has never been entitled to have the jury commissioners select jurors in such manner as to assure the accused of a jury from his own ethnic group or from his own occupation. We again state, as we did in Stout, that an accused only has the right to a competent, fair and impartial jury. When the jury was selected for appellant’s trial in the case at bar, the jury commission system was the method employed for selecting juries in Arkansas, and we refuse to hold, as the appellant seems to urge, that the jury selection statutes, Ark. Stat. Ann. §§ 39-201 — 39-231 (Repl. 1962), are ipso facto unconstitutional in preventing a representative cross section of the community from being placed on the jury rolls, and actually causing jurors to be placed on the jury rolls who reflect the personalities of the jury commissioners.

The Alabama jury selection statute is similar to the Arkansas statutes under attack here, and in Carter v. Jury Comm’n of Greene County, 90 S. Ct. 518, 24 L. Ed. 2d 549, the constitutionality of the jury commission system for selecting juries was upheld even though the jury rolls reflected the personalities of the jury commissioners. In Carter the court said:

“. . . Despite the overwhelming proof the appellants have adduced in support of their claim that the jury clerk and commissioners have abused the discretion that Alabama law confers on them in the preparation of the jury roll, we cannot say that § 21 is necessarily and under all circumstances invalid. * # * The federal courts are not incompetent to fashion detailed and stringent injunctive relief that will remedy any discriminatory application of the statute at the hands of the officials empowered to administer it. In sum, we cannot conclude, even on so compelling a record as that before us, that the guarantees of the Constitution can be secured only by the total invalidation of the challenged provisions of § 21.”

The appellant’s fourth point is likewise without merit. The order in which the state and the defense is to offer its evidence is provided by statute and under Ark. Stat. Ann. § 43-2114 (Repl. 1964) rebutting evidence is provided for as follows:

“The parties may then respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.”

It is within the sound discretion of the trial court to allow the state to introduce, in rebuttal, testimony which might properly have been introduced in chief. Walker v. State, 100 Ark. 180, 139 S. W. 1139; Bobo v. State, 179 Ark. 207, 14 S. W. 2d 1115. In the case at bar the witness for the state simply restated in rebuttal testimony some of his direct testimony in answering or refuting the appellant’s explanations of certain events brought out on direct examination of the appellant. The record before us does not disclose that the trial court abused its discretion.

As his fifth and final point, the appellant argues that the trial court erred in admitting the testimony of a layman in identifying the appellant’s handwriting. A similar point was before this court in the case of Redd v. State, 65 Ark. 475, 47 S. W. 119, and in that case no error was found in the trial court permitting a lay witness to testify that he saw a plat introduced on a former trial, and that the handwriting on said plat was similar to the handwriting of Redd, and that he thought it was Redd’s handwriting. The witness had seen and read one letter which Redd admitted he wrote.

In the case at bar the testimony to which the appellant objected, was the testimony of Mrs. Jones and Mrs. Malone, both of whom worked in the same office with the appellant. Unlike the witness in the Redd case, Mrs. Jones had worked in the same office with the appellant since the appellant had been City Collector, and Mrs. Malone had so worked for more than three years. Mrs. Jones and Mrs. Malone were thoroughly familiar with the appellant’s handwriting.

The judgment of the trial court is affirmed.

Harris, C. J., not participating.


author: J. Fred Jones, Jusdce.

text:
    Troy DUNCAN v. STATE of Arkansas
    5500
    454 S. W. 2d 98
    Opinion delivered May 11, 1970
    [Rehearing denied June 15, 1970.]

      Jeff Duty, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Jusdce.

Troy Duncan was tried before the Washington County Circuit Court, sitting as a jury, and was convicted of possession and delivering of certain depressant or sdmulant drugs. He was sentenced to two years in the penitendary with one year suspended and was fined $1,500 on each count. On appeal to this court Duncan relies on the following point for reversal:

“The Court erred in holding the appellant guilty in that the evidence showed a case of entrapment.”

The appellant did not testify nor did he ;t>ffer any testimony in his defense. Three witnesses testified for the state and their testimony is uncontradicted.

Duke Atkinson, supervisor of narcotics with the Arkansas State Police, testified that he is an undercover agent for the state police and that he discussed with the appellant the possibility of buying into the appellant’s business, including his “pill business,” for an agreed price of $5,000. He says that the appellant advised him that he had sold approximately 30,000 pills, and that his greatest profit was in the pill business. He says that he occupied a motel room under the assumed name of “Dale Atwood” and called the appellant at his home and requested the appellant to meet him in the motel room. He says that when the appellant first arrived at the motel room, they discussed local events and then discussed amphetamines. He says that he asked the appellant on three occasions if the amphetamines he had were good and was advised each time they were 10 milligram amphetamines. Atkinson testified that he agreed to purchase 10,000 pills at $95 per 1,000. He says that he counted out, and showed the appellant $700 of the total agreed sale price, and that the appellant went outside to his vehicle and brought back into the motel room, a box containing 10,000 pills. He says that he then excused himself on the pretext of going to his own vehicle for the remainder of the sale price and at this point the arrest was made by the sheriff of Washington County and other agents.

On cross-examination Mr. Atkinson testified that he first got acquainted with the appellant in Rogers, Arkansas, and that he told the appellant that a Mr. Lee Gordon, who is in fact a night dispatcher for a truck line in Oklahoma City, had told him if he got into Rogers, Fayetteville or Springdale and ran dry of pills, the appellant could provide him with amphetamines. He says that he represented to the appellant that he was “Dale Atwood,” a truck driver and indicated to the appellant that he was interested in a partnership business and would be able to sell drugs in Arkansas and Oklahoma on a fifty-fifty basis. This witness testified that he had already obtained some pills from the appellant in Benton County and was familiar with the fact that the appellant was engaged in the business of handling drugs.

Mr. Harry Troutman, an investigator with the narcotics and dangerous drugs division of the state police, testified that he was at the Holiday Inn at Fayetteville, Arkansas, on September 19 and occupied a room adjoining the one occupied by Mr. Atkinson. He says that he saw the appellant deliver the pills to Mr. Atkinson, and this witness identified the drugs delivered to Atkinson by the appellant. On cross-examination Mr. Troutman testified that the sheriff of Washington County, the prosecuting attorney and some other officers occupied the room with him at the time the arrest was made.

Mrs. Marguerite Van Dusen, chemist at the state health department, testified that she did a chemical analysis on the pills involved; that they contained amphetamine sulphate, and that these drugs were illegal on her list.

The analysis of the drugs and illegality of the possession under the uncontroverted facts of this case are not questioned, and we are of the opinion that no illegal entrapment of the appellant was involved. In the very recent case of Peters v. State, (February 23, 1970), 450 S. W. 2d 276, we said:

“. . . affording one the means and opportunities of doing that which he is otherwise ready, willing and able to do does not constitute entrapment. Entrapment does exist where the criminal designs originate not with the accused, but with the officers of the law, and the accused is lured into the commission of an unlawful act by pursuasion, deceitful representation or inducement by the officers. Sorrells v. United States, 287 U. S. 435, 53 S. Ct. 210, 77 L. Ed. 413, 86 A. L. R. 249 (1932) cited with approval in Osborne v. United States, 385 U. S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966) followed in Sherman v. United States, 356 U. S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958).”

See also Whittington v. State, 160 Ark. 257, 254 S. W. 532, and United States v. Hughey, 116 F. Supp. 649, aff’d in Hughey v. United States, 212 F. 2d 896 (8th Cir. 1963.).

In the recent case of Washington v. State, 248 Ark. 318, 451 S. W. 2d 449, the substantial evidence on the issue of entrapment was in conflict. We held in that case that the issue of entrapment is one of fact, and that if there is any substantial evidence to support the trial court’s judgment, we affirm. The substantial evidence is not even in conflict in the case at bar. .

The judgment is affirmed.