author: Lyle Brown, Justice.

text:
    THE YELLOW CAB COMPANY v. Charles SANDERS et al
    5-5534
    465 S. W. 2d 324
    Opinion delivered April 12, 1971

      Wright, Lindsey ir Jennings, for appellant.

      Howell, Price, Howell ir Barron, for appellees.

      Joseph A. Madey, for cross appellant Charles Hunt.
   Lyle Brown, Justice.

Charles Sanders and Leola Sanders, his wife, obtained judgments as a result of a traffic mishap which resulted in serious injuries. The judgments were against appellants, Charles Hunt and The Yellow Cab Company. Yellow Cab insists there was no substantial evidence of negligence on the part of its driver which contributed to plaintiffs’ injuries. Charles Hunt made Yellow Cab a third-party defendant but the jury awarded Hunt no damages against Yellow Cab, from which Hunt appeals. He contends (a) that the verdict was inconsistent, (b) that Charles Sanders was con tribu tor ily negligent and the jury did not consider that fact, and (c) that the court should have granted Hunt’s motion for a mistrial.

The accident occurred at the intersection of Roosevelt Road and Center Street in Little Rock. Roosevelt Road runs east and west and is a four-lane boulevard. Center is a narrow street and there are stop signs which command traffic crossing Roosevelt from Center to stop before entering. As the Sanderses traveled east on Roosevelt and approached the intersection a yellow cab was stopped at the north entrance of Center to Roosevelt; on the south side of Roosevelt, Hunt had pulled up and stopped. The cab driver intended to turn east (to his left) and Hunt intended to turn west (to his left) on Roosevelt. Those two drivers were not directly facing each other as they were parked on their respective sides of Center Street. That is because there is an offset or jog which would place Hunt some twelve feet east of the cab on the opposite side of the street. Hunt testified that as he pulled out he intended to go directly across the south half of Roosevelt (Sanders’ lane of travel) and then turn left; that he was prevented from doing so because the yellow cab moved about the same time as did Hunt and forced Hunt to cut sharply to his left to avoid the cab; and that as he made that movement he hit Sanders’ car almost head-on. The cab driver insisted that he never moved from his position at the stop sign and that the impact of the two cars caused the Hunt car to slide backward and to make very slight contact with Yellow Cab’s bumper.

Charles Sanders testified that he was driving east on Roosevelt, about 30-35 miles per hour; and that just before he reached the Center Street crossing Hunt “just pulled out in front of me.” Sanders said he did not see the yellow cab, that he was looking, straight ahead and at the Hunt car.

Maggie Hunt, who lives near the Center Street crossing, heard the crash. She is Charles Hunt’s wife. She said she looked out and saw the cab and her husband’s car in proximity of each other. She went back into the house to cut off the gas on the kitchen stove, and started toward the wreck. When she got back out on her porch she said the cab was backing away from the scene.

Officer E. J. Ethridge arrived minutes after the accident. He found the impact to have originated near the center of Roosevelt Road. The accident occurred on a dry day and at about 5:00 p.m. The officer said he observed the cab parked some thirty to forty feet back from the intersection. The cab driver reported to the officer that he saw the accident. Officer Ethridge said that the cab driver never mentioned that contact was made with the cab.

The cab driver was M. W. Poole, Jr. He testified that he was still parked at the stop sign on Center Street and south of Roosevelt when the accident occurred. He insisted that his cab was parked with the front end of the cab behind the curb line. He said the impact, which occurred west of him, caused the cars to slide toward him and “one of the vehicles slid down into the intersection on my side of the street and it touched against my car. I felt it touch my bumper and it slid away from it and when I got out I checked to see if there had been any damage and there hadn’t been any.” He said he called his dispatcher and was instructed to stay at the scene until the policeman approved his leaving. He said he did not move his car until he left the scene.

On cross-examination the witness conceded that in trying to get out into the traffic he probably moved his cab slightly forward to get a better view. He said his cab was struck a slight and glancing blow on the bumper. He testified that he did not report the contact to the investigating officer because there was no damage. He recalled that either his boss (who came to the scene) or the officer asked him to move the cab backward because traffic was being blocked.

Whether Yellow Cab was negligent and whether any such negligence was a proximate cause presents the first question to be decided. Yellow Cab argues that it was, as a matter of law, entitled to a directed verdict. In testing the correctness of Yellow Cab’s position we view the evidence and all reasonable inferences in the light most favorable to the other parties. Home Mutual Fire Ins. Co. v. Cartmell, 245 Ark. 45, 430 S. W. 2d 849 (1968). The fact that the evidence is contradicted by Yellow Cab, “or the fact that we might think it was against the preponderance of the evidence, does not justify us in setting aside the verdict.” Arkansas Motor Coaches v. Williams, 196 Ark. 48, 116 S. W. 2d 585 (1938). Of course we look for substantial evidence and if it is insubstantial Yellow Cab is entitled to prevail.

Hunt testified positively that as he pulled out from Center Street he started directly across the south lane of Roosevelt Road (Sanders’ lane of traffic); that he was prevented from following that course of travel by the cab, which suddenly moved out and blocked the north lane of Roosevelt; and that the collision with Sanders was inevitable. If the jury believed Maggie Hunt’s testimony they could have concluded that the cab was well out in Roosevelt when the crash occurred and that the cab immediately thereafter backed away from the wreck and for a considerable distance. The cab driver insisted that he was inside the curb line on his side when the collision occurred; yet on cross-examination he admitted that he may have moved forward somewhat in order to get a better view of the traffic. For reasons known only to the cab driver, he did not report to the officer that the Hunt car came in contact with the bumper of the cab. The jury may have attached some significance to the fact that the cab driver was instructed by radio to remain at the scene, notwithstanding he claims not to have been involved in the wreck. The owner of the cab company came to the scene of the accident, yet his driver claims to have been a mere witness to the collision. Also, we can tell from the record that the collision was recon-strutted on some type of blackboard and witnesses explained their versions of the occurrence on the board. The jury had the benefit of those reproductions while we do not. Then of course the jury had the advantage of seeing and hearing the. witnesses, which is often a crucial factor in passing upon credibility. We are unable to say that fair-minded men would draw but one conclusion from the highly controverted evidence. Therefore we agree with the trial court that the facts and circumstances made a question for the jury.

The jury was given a general verdict form, which read: “We the jury find for the plaintiffs Charles Sanders and Leola Sanders against Charles Hunt and Yellow Cab Company and assess their damages as follows: Leola Sanders _, Charles Sanders,__” The jury returned that form of verdict but they amended it to apportion damages between Charles Hunt and Yellow Cab Company:

Charles Hunt
Charles Sanders $46,665.00
Leola Sanders 5,721.00
Yellow Cab Co.
Charles Sanders 3,335.00
Leola Sanders 409.00

Yellow Cab argues that it was within the discretion of the trial court to reject the verdict as not being in conformity with the court’s instructions to return a general verdict. Since the court accepted the verdict, says Yellow Cab, it should be entered as apportioned, which would mean that there could be no recovery greater than the smallest amount fixed by the jury. Woodward v. Blythe, 249 Ark. 793, 462 S. W. 2d 205. The court entered a joint and several judgment for the combined total damages, having concluded that the jury actually intended to apportion the negligence. The apportionment of damages was not made an issue by Yellow Cab in its original brief. It was raised as a point of error for the first time in its reply brief. Since it was not timely advanced in order that appellees could rebut it in their brief, we cannot consider it. Ryall v. Water works Improvement District, 247 Ark. 739, 447 S. W. 2d 341.

Now as to the appeal of Charles Hunt. He never filed a notice of appeal. The timely filing of such a notice is jurisdictional, 'both on appeal and cross-appeal. Pinnacle Old Line Ins. Co. v. Ellis, 228 Ark. 458, 307 S. W. 2d 882 (1957); General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40 (1954). Nevertheless we have examined Hunt’s points for reversal and a majority of the court finds no merit.

Affirmed.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Joe McKIM v. Jane Sutherland McLINEY et al
    5-5512
    465 S. W. 2d 911
    Opinion delivered April 12, 1971

      Davis ir Reed, for appellant.

      Crouch, Blair, Cypert ir Waters and Wade, McAllister, Wade ir Burke, for appellees.
   John A. Fogleman, Justice.

Joe McKim alleges that the chancery court erred in sustaining general demurrers of Butane Service, Inc. and Jane Sutherland McLiney, et al, Trustees, to his amended complaint, which the court dismissed. We agree.

McKim alleged that he was the owner of the lands described in his complaint, and that he acquired his equity, ownership, title and interest in and to the foregoing lands by the following:

1. L-P Gas Company Warranty Deed to Joe McKim dated August 5, 1963, and filed for record August 6, 1963.
2. Quitclaim Deed from Cy Carney Et Ux to L-P Gas Company, dated April 16, 1970.
3. Purchase by Cy Carney of the entire assets of Butane Service Co., Inc. of Springdale, Arkansas on November 8, 1947, as reflected by contract exhibited.
4. Sam Ennis and Sylvia Ennis, husband and wife, Warranty Deed to Butane Service Co. of Spring-dale, Arkansas, dated April 8, 1946, and filed for record on April 20, 1946.

McKim further alleged that Jane Sutherland Mc-Liney, et al, as Trustees for certain named persons were making an apparent claim of title and possession by reason of a recorded quitclaim deed from L. R. and Ethel Mae Bennett to John W. Sutherland, dated March 23, 1967, and Sutherland’s recorded deed of gift, dated January 19, 1970, conveying the lands to Jane Sutherland McLiney, et al, as Trustees for Thomas M. Sutherland, Mark B. Sutherland and Christopher L. Sutherland. (These appellees will hereinafter be referred to as the Sutherland trustees.)

McKim then alleged that he and his predecessors in title had been the sole and exclusive owners of the above described lands (which he alleged to be “wild”), in actual or constructive possession (except for such part as may have been entered upon by John W. Sutherland during the preceding 3-year period), for more than 25 years prior to the filing of his amended complaint, during which time they had continually paid the taxes thereon. Appellant asserted that Butane Service Company, Inc. might claim some interest in the land because of its failure to execute a conveyance pursuant to its contract with Carney. McKim further alleged that he had no adequate remedy at law to establish his equitable title or interest, to quiet or confirm his title, to revoke or cancel clouds thereon, or to establish a trust implied in law for his benefit. He prayed that any claim of Butane Service be declared subservient to his own and held subject to a trust in law for his use and benefit, and that this appellee be compelled to convey whatever title it had to him. He also prayed that the conveyances under which the Sutherland trustees claimed be canceled as clouds upon his title and that his title be quieted and confirmed.

Perhaps appellant’s pleadings in many respects should have been more specific, but, under our code, pleadings are liberally construed and every reasonable intendment indulged in behalf of the pleader. Craft v. Armstrong, 200 Ark. 681, 141 S. W. 2d 39. Particular liberality is accorded the pleader on demurrer. If the facts stated in the pleadings together with every reasonable inference which may be drawn therefrom favorable to the pleader constitute the substance of a cause of action imperfectly stated, a demurrer should be overruled. Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S. W. 2d 46. When we apply these standards, we conclude that appellant stated a cause of action against both appellees.

THE DEMURRER OF BUTANE SERVICE, INC.

We agree with this appellee that the lands are not sufficiently described in the contract of sale between it and Carney to entitle McKim to have specific performance of the contract, absent other circumstances making that relief available. The only description in the contract which relates, in any way, to real estate is the statement of the agreement of Butane Service to sell and of Carney to buy “all the assets of whatever kind and nature of Butane Service, Inc., an Arkansas Corporation, except accounts receivable, this sale including all equipment and property as well as inventory of merchandise, which equipment and property is more specifically listed in Schedule A. attached hereto and made a part hereof.” The schedule was not exhibited. We do not agree with Butane Service, however, that the contract did not relate to real estate. One clause in the contract calls upon the sellers to execute all necessary and proper deeds and other instruments required by the purchaser in order to execute this contract to the buyer’s requirements. Other actions by the sellers were to be performed at the time of the delivery of the deeds and other documents to complete the sale. Another clause required the sellers to prepare all necessary deeds and other instruments within 15 days of the date of contract and to tender them to the buyer “with possession of all said property of sellers, at which time said purchase price will be paid by buyer.” The buyer was given the option of using the name, Butane Service, Inc., or Co. or Company or any similar combination. From the language of the contract, a construction that the parties intended to include any real estate owned by the seller as part of “all the assets of whatever kind and nature” would certainly not be unreasonable. Even so, we have held that similar descriptions are not sufficiently definite and certain to furnish an adequate key to identification to form the basis for specific performance. Bowlin v. Keifer, 246 Ark. 693, 440 S. W. 2d 232; Turrentine v. Thompson, 193 Ark. 253, 99 S. W. 2d 585.

This does not mean that there are not any circumstances under which a conveyance by Butane Service can be compelled. Even though a written contract is defective because of an insufficient description of property, it will still be specifically enforced in equity if it is established that the case is taken out of the statute of frauds and evidence supplies proof of the proper description. Hirschman v. Forehand, 114 Ark. 436, 170 S. W. 98. See also Stephens v. Ledgerwood, 216 Ark. 404, 226 S. W. 2d 587. Thus, if under the allegations of his complaint, appellant can show that the real estate described in his complaint was an asset of Butane Service subject to transfer under the contract with Carney, and produce evidence to take the case out of the statute of frauds, he might well prevail.

The fact that McKim’s title is based entirely upon a quitclaim deed executed by Carney dated April 16, 1970, does not constitute an impediment to McKim’s enforcement of whatever rights Carney may have had against Butane Service. McKim’s deed from L-P Gas Co., the grantee in Carney’s quitclaim, was a warranty deed. A contract of sale of real estate creates an equitable estate in the purchaser which is alienable by deed, subject to the lien of the vendor to secure the purchase money. Roach v. Richardson, 84 Ark. 37, 104 S. W. 538; Whittington v. Simmons, 32 Ark. 377. This equitable estate is assignable or transferable, at least in equity, by quitclaim deed. Corcorren v. Sharum, 141 Ark. 572, 217 S. W. 803. See also Whittington v. Simmons, supra; Lucado v. A. Hirsch & Co., 203 Ark. 792, 158 S. W. 2d 697.

The vendor of real estate becomes a constructive trustee for the purchaser holding the naked legal title, which he or his heirs must convey to the purchaser upon payment of the purchase price. Stubbs v. Pitts, 84 Ark. 160, 104 S. W. 1110; State Bank of Decatur v. Sanders, 114 Ark. 440, 170 S. W. 86; Whittington v. Simmons, supra; Harris v. King, 16 Ark. 122; Arledge v. Rooks, 22 Ark. 427. Partial or full payment of consideration together with the taking of possession by the purchaser, however, is sufficient. Marshall v. McCray, 241 Ark. 184, 406 S. W. 2d 863; Hyder v. Newcomb, 236 Ark. 231, 365 S. W. 2d 271; Ferguson v. C. H. Triplett Co., 199 Ark. 546, 134 S. W. 2d 538. Consideration paid by forgiveness of a debt of the seller to the purchaser, the surrender of dominion over the property by the seller to the purchaser and subsequent payments of taxes and other exercise of acts of ownership of lands have been held sufficient. Bostleman v. Henkle, 152 Ark. 628, 239 S. W. 30. Payment of consideration by cancellation of a debt of a seller to a purchaser followed by his continued payment of taxes on the property has also been held sufficient to take the case out of the statute of frauds. Henneberger v. Duncan, 204 Ark. 4, 161 S. W. 2d 380.

McKim does not allege the specific acts which he claims constituted the actual or constructive possession of the lands by him and his predecessors in title, except for continuous payment of taxes. We take his allegations to be sufficient to permit introduction of evidence as to payment of taxes or any other acts of McKim or his predecessors in title indicating dominion and control or the exercise of ownership by him or his predecessors in title or the transfer of possession and dominion by appellee Butane Service to his predecessors in title. Such evidence, coupled with a showing of payment of the consideration called for by the contract, might well constitute sufficient part performance of the contract to take it out of the application of the statute of frauds and to warrant requiring Butane Service, Inc. to convey the title to the lands.

In this connection, the provisions of Ark. Stat. Ann. §§ 37-102 and 37-103 (Repl. 1962), relied upon by appellant, may come into play. Under the former section, possession of unimproved and unoccupied lands is deemed to be in one who, with color of title, pays the taxes for at least seven years in succession. Under the latter, color of title is presumed where there has been payment for 15 years. See Burbridge v. Smyrna Baptist Church, 212 Ark. 924, 209 S. W. 2d 685; Coulter v. O’Kelly, 226 Ark. 836, 295 S. W. 2d 753. For the purposes of these acts, appellant’s allegation that the lands are wild would normally bring them within the purview of these acts. We have acknowledged that the words “wild,” “unimproved” and “unenclosed” have been used interchangeably. Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193. These statutes are not applicable, however, where two or more have adverse constructive possession. Towson v. Denson, 74 Ark. 302, 86 S. W. 661. Constructive possession of wild and unimproved lands is usually deemed to be in the holder of the legal title. Hensley v. Phillips, 215 Ark. 543, 221 S. W. 2d 412. But where neither party has actual possession, constructive possession is deemed to be in the holder of the superior title. Nall v. Phillips, 213 Ark. 92, 210 S. W. 2d 806. This rule applies where the lands are wild and unimproved unless the holder of the inferior title has continuously paid the taxes for the statutory period. Smith v. Boynton Land & Lumber Co., 131 Ark. 22, 198 S. W. 107.

Appellee Butane Service, Inc. contends that the passage of time bars enforcement of its contract with Carney. This well may be the case, but the defenses of laches and the statute of limitations can be raised by demurrer only when they appear upon the face of the complaint. Quinn v. Stuckey, 229 Ark. 956, 319 S. W. 2d 839; Morehead v. Niven, 222 Ark. 116, 257 S. W. 2d 361. Otherwise, both defenses must be raised by answer. Cullins v. Webb, 207 Ark. 407, 180 S. W. 2d 835. When we consider appellant’s amended complaint with the exhibits thereto, we find nothing to indicate that the statute of limitations has run. The time for performance is not fixed with sufficient definiteness for a bar by limitations to appear upon the face of the pleadings.

Laches depends upon more than mere lapse of time. It is delay that works to the disadvantage of another by change of circumstances or relations of the parties or loss of evidence and makes the enforcement of a claim inequitable. Stricklin v. Mitchell, 234 Ark. 31, 350 S. W. 2d 319; Seawood v. Ozan Lumber Co., 221 Ark. 196, 252 S. W. 2d 829; Mortensen v. Ballard, 209 Ark. 1, 188 S. W. 2d 749; Cullins v. Webb, supra; Walker v. Norton, 199 Ark. 593, 135 S. W. 2d 315. No such change appears upon the face of the pleadings.

DEMURRER OF SUTHERLAND TRUSTEES

We take McKim’s complaint in this regard to state a cause of action to cancel certain instruments of record which constitute a cloud on the title he claims. In Arkansas, the chancery court has jurisdiction of such a proceeding both under statute and in the exercise of its inherent equity powers. See Covington, Bills to Remove Cloud on Title and Quieting Title in Arkansas, 6 Ark. L. Rev. 83, et seq. Such a suit may be brought by the holder of an equitable title. Bowling v. Stough, 101 Ark. 398, 142 S. W. 512; Morgan v. Kendrick, 91 Ark. 394, 121 S. W. 278. While there are cases holding that a plaintiff must be in possession in order to cancel a cloud on his title, or that he must be the holder of the legal title, jurisdiction will be exercised in equity where neither party is in possession or where the remedy at law is not adequate. Reynolds v. Plants, 196 Ark. 116, 116 S. W. 2d 350; Fisk v. Magness, 193 Ark. 231, 98 S. W. 2d 958; Chapman and Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S. W. 534, appeal dismissed, 206 U. S. 41, 27 S. Ct. 679, 51 L. Ed. 953. Holdings in this regard are perhaps best summarized in Rowe v. Allison, 87 Ark. 206, 112 S. W. 395, where we said:

Before a suit to remove cloud from title can be sustained by a plaintiff, he must show that he is in possession of the land, or that his title is an equitable one, or that the land is wild and unoccupied. Where a defendant is in possession, and the plaintiff asserts a legal title, a chancery court is without jurisdiction to remove the cloud upon it, as there is an adequate and complete remedy at law. But if other grounds for equity jurisdiction exist, which give the chancery court jurisdiction, it may proceed to administer complete relief, although a part of that relief is purely legal. Apperson & Co. v. Ford, 23 Ark. 746; Branch v. Mitchell, 24 Ark. 431; Sale v. McLean, 29 Ark. 612; Lawrence v. Zimpleman, 37 Ark. 643; Bryan v. Winburn, 43 Ark. 28; Mathews v. Marks, 44 Ark. 436; Ashley v. Little Rock, 56 Ark. 391, 19 S. W. 1058; Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; Brown v. Nowell, 74 Ark. 484, 86 S. W. 306; St. L. R. & W. G. Co. v. Thornton, 74 Ark. 383, 86 S. W. 852; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S. W. 534.

Appellant had no adequate remedy at law because it is well established that an equitable title is generally not sufficient to maintain ejectment. McCord v. Welch, 105 Ark. 119, 150 S. W. 566; Scott v. Rutherford, 243 Ark. 306, 419 S. W. 2d 595. Of course, an equitable title coupled with the right to possession would support an action in ejectment. Faulkner v. Feazel, 113 Ark. 289, 168 S. W. 568. It may well be that evidence will show that McKim is entitled to possession so that he might have brought an ejectment suit, but the chancery court denied his motion to transfer to law after his demurrer was overruled, on the ground that McKim’s allegations and prayer embraced an action cognizable only in equity and did not state a cause of action at law. We cannot say that on the face of the complaint he is not entitled to the equitable remedy to cancel the cloud on his title.

We have not overlooked such cases as Winkle v. School District No. 81, 215 Ark. 670, 221 S. W. 2d 884 and Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175. They are not applicable here, because the plaintiff in each case had a plain, adequate and complete remedy at law as the claimant under a legal, rather than an equitable, title.

Appellee asserts that McKim’s allegations with reference to possession are contradictory in that he claims actual possession in himself and his predecessors in title, then alleges that appellees are in possession of the lands, and later alleges that they are wild. It may be that there is some inconsistency, but we must consider the complaint on demurrer in a light favorable to the pleader. When we do, we cannot say that appellant has failed to state a cause of action.

It is true that McKim did not deraign his title to the sovereignty of the soil or to a common source of title. In an action to quiet title such as this one, it is necessary that there be such deraignment or allegations showing title in him or his predecessors in title by adverse possession or by payment of taxes. See Coulter v. O’Kelly, 226 Ark. 836, 295 S. W. 2d 753; Griffin v. Isgrig, 227 Ark. 931, 302 S. W. 2d 777; Collins v. Heitman, 225 Ark. 666, 284 S. W. 2d 628. If McKim is relying upon adverse possession his allegations appear to be sufficient. If not, the defect is not one that is reached by a demurrer but is properly subject to a motion to require his complaint to be made more definite and certain. However loosely drawn a complaint in equity may be, there is no ground for demurrer if a cause of action is stated, however defectively, when every allegation and every inference reasonably deducible therefrom are considered. Shreve v. Carter, 177 Ark. 815, 8 S. W. 2d 443. Any lack of specificity or other defect should be reached, at least in equity, by a motion to make the complaint more definite and certain. Ford v. Collison, 128 Ark. 119, 193 S. W. 531; Shreve v. Carter, supra. The rule is different in an action in ejectment, because of statutory requirement. Ark. Stat. Ann. § 34-1408 (Repl. 1962); Scott v. Rutherford, 243 Ark. 306, 419 S. W. 2d 595.

Since we find that the complaint states a cause of action when tested on demurrer, the decree is reversed and the cause remanded for further proceedings.


author: J. Fred Jones, Justice.

text:
    Bryan MONROE v. Sleetie MONROE
    5-5539
    465 S. W. 2d 347
    Opinion delivered April 12, 1971

      W. F. Denman, Jr., for appellant.

      John L. Wilson, for appellee.
   J. Fred Jones, Justice.

This appeal involves a widow’s rights in the homestead of her deceased husband and the question is whether she has abandoned it.

Sleetie Monroe lived with her husband, W. E. Monroe, on his rural homestead near Hope, in Hempstead County, Arkansas, until his death in November, 1952. Mr. Monroe left as his sole surviving heir Bryan Monroe, who was an only son by a previous marriage. Mrs. Monroe continued to live on the homestead until June, 1953, when she rented out the house on the homestead and moved to Hope where she has resided in different houses purchased by her since moving from the homestead. Bryan Monroe instituted the present action in the Hemp-stead County Chancery Court alleging that Mrs. Monroe has abandoned the homestead and he prayed for an accounting and award of damages for waste in the cutting and sale of timber from the homestead land. The chancellor found that Mrs. Monroe had not abandoned the homestead and entered a decree accordingly. On appeal to this court Bryan Monroe relies on the following points for reversal:

“That the appellee has in fact abandoned her homestead in the subject land, by living elsewhere for these many years, allowing the house and out building to deteriorate, by acquiring three other homes during her absence.
That appellee has in law abandoned her homestead in the subject land by leaving said land without a fixed intention to return to same, without maintaining a fixed intention to return to same and without possessing a fixed intention to return to same at the time of trial.”

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

Article 9, § 3 of the Constitution of 1874 reads as follows:

“The homestead of any resident of this State who is married or the head of a family shall not be subject to the lien of any judgment, or decree of any court, or to sale under execution or other process thereon, except such as may be rendered for the purchase money or for specific liens, laborers’ or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.”

This section of the constitution applies to either the wife or husband when married, and to either of them, or to anyone else who is the head of a family, whether married or not. Consequently, any resident of this state of either sex, who is married, or who is the head of a family, is entitled to the exemption of a homestead under the constitution. Thompson v. King, 54 Ark. 9, 14 S. W. 925.

In addition to a married woman’s right to homestead exemption, she has certain constitutional rights as a widow in the homestead of her deceased husband as set out in § 6 of Article 9 of the constitution, which is as follows:

“If the owner of a. homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents ánd profits thereof shall vest in her during her natural life, provided that if the owner leaves children, one or more, said child or children shall share with said widow and be entitled to half the rents and profits till each of them arrives at twenty-one years of age—each child’s right to cease at twenty-one years of age—and the shares to go to the younger children, and then all to go to the widow, and provided that said widow or children may reside on the homestead or not; and in case of the death of the widow all of said homestead shall be vested in the minor children of the testator or intestate.”

The case of Butler v. Butler, 176 Ark. 126, 2 S. W. 2d 63, involved the question of abandonment of a homestead; first by the husband, and then by the widow after her husband’s death. In that case, as in the case at bar, the litigation was between children of the deceased husband by a first marriage and their stepmother. In the Butler case John Butler had established a rural homestead in Logan County on which there was located a coal mine. In 1916 he moved with his family to Crawford County where he continued to reside until his death in 1918. After Mr. Butler’s death, his widow went to Fort Smith to live where she purchased a home for herself and minor children in order to obtain the advantage of better schools for the children and employment for herself. One of the children by the previous marriage administered his father’s estate and after winding up the administration, he turned the possession of the Logan County lands back to his stepmother and she continued to receive the rents and proceeds from both the farming operations and the mining of coal.

The husband of one of the Butler heirs by the first marriage brought the abandonment of the homestead into issue and the chancellor found that John Butler had not abandoned his homestead in Logan County by his removal to Crawford County, and that neither had the widow abandoned the Butler homestead in Logan County. The Butler decision distinguishes between an acquired homestead and the rights of a widow in her deceased husband’s homestead; and the Butler case so clearly sets out the law applicable to the case at bar, we feel justified in quoting at length from Butler as follows:

“The next question to be determined is whether John Butler abandoned his homestead in his lifetime. It is conceded by all parties that the land in controversy was his homestead until the fall of 1916, when he removed to Crawford County, but it is contended by appellants that, by such removal, he abandoned his homestead. It is not contended that he acquired a new homestead after his removal to Crawford County, and before his death. It is the rule of law in this State, announced by many decisions of this court, that the question of whether there has been an abandonment of a homestead once established, is almost entirely a question of intent on the part of the homestead owner so to do. In other words, in order to constitute an abandonment of a homestead, the owner must leave it with the intention of renouncing and forsaking it, or leaving it never to return. The law does not require continuous occupation of the homestead to continue it as such. As was said in one of the earlier cases before this court, Euper v. Alkire & Co., 37 Ark. 283: ‘When a homestead right has once attached, a continuous actual occupation is not indispensable for its preservation. It is well settled by the authorities that a removal from the homestead for a temporary purpose, or with the intention of returning and again occupying it, is not such an abandonment as will forfeit the homestead right.’ And in that case the court quoted with approval from McMillan v. Warner, 38 Tex. 410, as follows: ‘The question of abandonment is almost exclusively a question of intent, since no legal abandonment can occur without a fixed intent to renounce and forsake, or to leave never to return; and to abandon a homestead, a party must forsake and leave it with the intent never to return to it again as a homestead.’
In the more recent case of Gillis v. Gillis, 164 Ark. 532, 262 S. W. 307, this court said: ‘The question of whether one who removes from his homestead has abandoned same is one of intention, which must be determined from the facts and circumstances attending each case.’
A temporary removal from a homestead for business purposes does not constitute an abandonment. In this case it is shown that Mr. Butler, when he removed to Crawford County, went there to cultivate bottom lands, by which he thought he could earn sufficient money to pay off the mortgage on his homestead; that he rented his homestead for one year only for farming purposes; that he refused to sell same to persons who offered to purchase. It is also shown by a number of witnesses that he expressed, on many occasions, his intention of returning to his home in Logan County, and these expressions of intention in this regard continued up to the very day of his death. While there is some conflict in the evidence regarding the question of his intention, we do not find that the chancellor’s finding is against the preponderance thereof, and we therefore hold with the chancellor, that John Butler did not abandon his home in his lifetime.
The next question for determination is whether his widow, the appellee, Mrs. A. V. Butler, abandoned same. Section 6 of article 9 of the Constitution of 1874 reads as follows: * * #
The widow did not have a separate homestead in her own right at the time of her husband’s death, and she also had minor children. Therefore, under the plain provision of the Constitution, the homestead, of her husband became hers for life, exempt from any debts, except the mortgage indebtedness, together with the rents and profits therefrom, to be shared by her and her minor children until they reach the age of twenty-one years. She could not abandon the homestead so as to be effectual against the minor children, and her act in purchasing a home in Fort Smith for the purpose of supporting and educating her children there, does not constitute an abandonment. The only qualification of her right to enjoy the rents and profits of the homestead during her natural life, contained in this section of the Constitution, is, ‘if the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right.’ Here there are children, and she had no separate homestead in her own right at the time of the death of her husband. In such a case the acquisition of a homestead in her own right, after the death of her husband, does not constitute an abandonment of her husband’s homestead so as to deprive her of the rents and profits thereof during her natural life. As was said in the case of Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 19.16A, 999: ‘It is the settled policy of this court that homestead acts are remedial, and should be liberally construed to effectuate the beneficent purposes for which they are intended.’ And in the case of Colum v. Thornton, 122 Ark. 287, 185 S. W. 205, this court said:
‘Our Constitution gives the homestead to the widow for life, without any restrictions. It is the settled policy in this State that laws pertaining to the homestead right of the widow and minor children shall be construed liberally in favor of the homestead claimants.’ In this same case the court further said: ‘Upon the death of her first husband, a life estate vests in her in his homestead, and she has the right to lease it and receive the rents from it, subject, of course, to the rights of her minor children to share same with her until each of them arrives at the age of twenty-one years; and we do not think she forfeits her homestead by a second marriage and removal to the homestead of her second husband.’
Again, in the same case, it is said: ‘The general rule is that a remarriage by a widow will not operate to destroy the homestead character of a home left to her and her children by a former husband. Our Constitution does not require a widow to occupy the homestead. There is nothing in it to indicate that the framers intended that the marriage of a widow and her going to her second husband’s homestead and occupying it with him should work a forfeiture of her previously existing legal rights. In short, there is nothing in our Constitution to indicate that the right of homestead of a widow should terminate, should she remarry and go to live with her husband on his homestead; and we do not think such an act on her part destroys the homestead character of a then existing homestead of herself and her children by her former husband.’
The effect of this holding is that a widow does not destroy her homestead right in her husband’s estate by the acquisition of another home in her own right, for her own conveniences and purposes and that of her minor children. We therefore hold against the contention of appellants in this regard. The final contention of appellants for a reversal of the case is that there had been an abandonment of the mining operations at and after the death of John Butler, that constitute the leasing thereof by Mrs. Butler practically the same as opening a new mine. This contention must also be decided against appellants. It has been held by this court that coal underlying a homestead is a part thereof, and cannot be sold for the payment of the debts of the decedent’s estate, but is protected therefrom the same as the homestead is protected. Russell v. Berry, 70 Ark. 317, 67 S. W. 864.”

In the case at bar Mrs. Monroe testified that at the time of her husband’s death, the cultivable land on the homestead had been permitted to grow up in brush, and that after his death she had the brush removed and the land planted to pine seedlings. She testified that she had harvested timber twice from the land through selective cutting, and the chancellor found that the truth of this evidence was borne out by previous orders of the Hemp-stead County Probate Court authorizing such procedure.

Mrs. Monroe further testified that she left the homestead soon after her husband’s death and went to live with her sister and her sister’s husband in Hope because they feared for her safety living alone on the homestead, and because she desired and obtained self-employment as a practical nurse in Hope. She testified that it has been, and still is, her intention to return and live on the homestead when she is no longer able to work in Hope. This avowed intention is borne out in the testimony of Mrs. Monroe’s sister, who lives with her, and there is no evidence in the record to the contrary.

In the chancellor’s findings of fact he recites that after the hearing Mrs. Monroe, through her solicitor, announced her intention of applying the money she had received through the harvest and sale of timber from the homestead, to the making of specified improvements to the residential buildings still on the homestead, The chancellor included in his decree orders pertaining to the carrying out of these announced intentions and Mrs. Monroe has not appealed from this portion of the decree.

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

Affirmed.


text:
    GRANITE STATE INSURANCE COMPANY v. Russell C. ROBERTS, Judge
    5-5562
    465 S. W. 2d 332
    Opinion delivered April 12, 1971

      Whetstone if Whetstone, for petitioner.

      Guy H. Jones, Phil Stratton and Guy Jones, Jr., for respondent.
   J. Fred Jones, Justice.

This is an original action brought in this court by Granite State Insurance Company, as petitioner, seeking a writ of prohibition against the Honorable Russell C. Roberts, Judge of the Conway County Circuit Court, restraining Judge Roberts from proceeding further in connection with a suit now pending in said court wherein Grover L. Martin filed a suit against Granite State Insurance Company for recovery of the maximum amount payable under an uninsured motorist endorsement to an insurance policy issued by Granite State to Martin.

The factual background for Granite State’s petition is as follows: On March 5, 1969, John L. Romes filed suit in the Pulaski County Circuit Court alleging that on March 1, 1969, he sustained personal injuries and property damage in a collision with an automobile operated by Martin in Pulaski County, Arkansas; that Martin’s negligence was the proximate cause of the collision and Romes’ resulting damage. The complaint prayed judgment against Martin in the amount of $35,-000 for personal injuries, together with $500 for property damage.

On March 17, 1969, Martin filed his answer of general denial, and affirmatively alleged that whatever damages Romes sustained were entirely due to Romes’ own negligence in the operation of his automobile. On November 12, 1969, Martin filed an amendment to his answer affirmatively alleging certain acts of negligence on the part of Romes as a complete bar to Romes’ cause of action against him.

On November 24, 1969, Martin, through different attorneys, filed a counterclaim against Romes in the Pulaski County case alleging certain injuries sustained by Martin as a direct and proximate result of specifically alleged acts of negligence on the part of Romes in the operation of Romes’ automobile and as a result of his alleged injuries, Martin prayed judgment against Romes in the amount of $50,000.

On November 26, 1969, Romes filed an amendment to his original complaint more specifically setting out the alleged acts of negligence on the part of Martin; and setting out that the plaintiff Romes’ “collision” insurance carrier, had paid his property damage loss with the exception of $50 deductible under the policy, and the amendment prayed judgment for $55,050 rather than $55,500 as originally prayed.

At a jury trial of the issues as thus joined in the Pulaski County Circuit Court, the jury was unable to agree on a verdict as to Romes’ complaint against Martin, but did render a partial verdict, finding for the plaintiff Romes on Martin’s counterclaim against him. On January 16, 1970, judgment was entered on the verdict adjudging that Martin take nothing by reason of his counterclaim against Romes. The counterclaim was dismissed with prejudice and Romes was awarded his costs in connection with Martin’s counterclaim. A mistrial was declared on Romes’ complaint against Martin, and the matter was ordered placed on trial docket for retrial of those issues.

On appeal to this court from an order denying Martin’s motion in arrest of judgment, we held that the trial court erred in entering judgment on the partial verdict and we reversed, holding that all the issues between the parties must be disposed of in a single action. Martin v. Romes, 249 Ark. 927, 462 S. W. 2d 460, (February 1, 1971).

On August 26, 1970, Martin, through the same attorneys who represented him on his counterclaim in the Pulaski County Circuit Court, filed a complaint in the Circuit Court of Conway County against the Granite State Insurance Company alleging that the defendant insurance company had issued an insurance policy to Martin; that Martin was involved in a collision in Pulaski County wherein his vehicle was struck from the rear by an automobile driven by John L. Romes; that Romes and his automobile were uninsured within the meaning of the language contained in Martin’s insurance policy. A-copy of the policy was made an exhibit to the complaint and the complaint alleges that Martin sustained personal injuries to his damage in the amount of $50,000, and that the defendant, Granite State Insurance Company, is indebted to the plaintiff Martin in the aggregate sum of $10,000 under his policy of insurance. Martin prayed judgment against Granite State for $10,000, together with penalty and attorneys’ fees.

On September 15, 1970, Granite State, through the same attorneys who filed answer for Martin in the Pulaski County case, filed a motion in the Conway Circuit Court praying a dismissal of the complaint filed 'against it by Martin in that county, for the reason that the same issues were still pending between the same parties in the Circuit Court of Pulaski County, and the Conway County Circuit Court was without jurisdiction. The trial court denied the motion and as a basis for its motion in this court for prohibition, the petitioner states:

“For all practical and legal intents and purposes the matter now pending in the circuit court of Pulaski County involves the same subject matter, the same issues, and the same parties (privies) as that sought to be litigated in Conway Circuit Court and the Pulaski Circuit Court having first acquired jurisdiction, there is no jurisdiction in Conway County.”

The insuring agreement under the uninsured motorist endorsement on the policy issued by Granite State to Martin provides as follows:

“Damages for Bodily Injury Caused by Uninsured Automobiles: The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.”

Granite State filed its petition now before us, through the attorneys who filed the answer for Martin in the Pulaski County Circuit Court. The attorneys who represented Martin on his counterclaim in Pulaski County, and who filed the suit now pending against Granite State in Conway County, have filed a brief in support of the action taken by the respondent, Russell C. Roberts, Judge. It is obvious that Granite State carried the liability insurance with the uninsured motorist endorsement on Martin’s automobile. It is entirely possible that Granite State employed counsel only to defend the action brought by Romes against its insured in Pulaski County, and that Martin employed separate counsel to represent him in his counterclaim in that action; but, be that as it may, the record now before us is completely silent as to Granite State’s interest in the Pulaski County case (Martin v. Romes, supra).

Assuming that Granite State is correct in its contention that “for all practical and legal intents and purposes the matter now pending in the circuit court of Pulaski County involves the same subject matter, the same issues, and the same parties (privies) as that sought to be litigated in Conway Circuit Court. . this contention is made in the face of the provision in the policy providing that:

“no judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.” (Emphasis added).

There is no evidence in the record before us that Granite State’s insured, Grover L. Martin, ever obtained any kind of consent from Granite State before prosecuting his counterclaim against Romes in the Pulaski County Circuit Court. By the plain words of the insurance contract, the issues as to liability or any judgment Martin might obtain against Romes in the Pulaski County Circuit Court action, would not be conclusive as between Granite State and its insured Martin, unless the judgment should be entered pursuant to an action prosecuted by the insured with the written consent of the company.

There is no evidence in the record before us that Granite State was ever a party to the litigation pending in Pulaski County, and there is no evidence, as the record now stands, that Granite State did or did not consent to the action instituted or the judgment rendered in the Pulaski County Circuit Court. We conclude, therefore, that the petitioner, Granite State Insurance Company, has failed in the discharge of its burden of showing grounds for the invocation of the extraordinary powers of this «court to prevent by prohibition the exercise of jurisdiction inherent in the trial court, and of showing that the respondent judge erred in denying Granite State’s motion to dismiss Martin’s complaint in the Conway County Circuit Court. MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S. W. 2d 252.

The petition for writ of prohibition is denied.


author: Conley Byrd, Justice.

text:
    Margaret KANE v. Francis R. ERICH et al
    5-5516
    465 S. W. 2d 327
    Opinion delivered April 12, 1971

      Hobbs ir Longinotti, for appellant.

      Wootton, Lamb & Matthews and Cockrill, Laser, McGehee & Boswell, for appellees.
   Conley Byrd, Justice.

After a jury returned a verdict for appellant Margaret Kane against appellee Francis R. Erich in the amount of $4,500.00 and a verdict in favor of Spa Transit, the court dismissed appellant’s action against appellee Spa Transit Co., Inc. Appellant filed a motion for new trial. For reversal of the trial court’s action overruling the motion for new trial, appellant relies upon the following points:

“1. The court erred in refusing to grant the plaintiff a new trial because of the failure of two jurors to be truthful in answering questions on voir dire.
“2. The court erred in refusing to allow plaintiff to put on oral testimony at the hearing on the motion for new trial, and further erred in refusing to recognize in substance the offer of proof as to what the two jurors would have testified to had plaintiff’s counsel been allowed to subpoena them and interrogate them.”

Appellees Francis R. Erich and Spa Transit Co., Inc., contend that the trial court did not err in overruling the motion for new trial because appellant as the complaining party failed to show diligence in ascertaining the disqualification, if any, of the jurors. We agree with appellees.

The record shows that one of appellant’s attorneys made an affidavit, filed with the motion for new trial, that Evelyn Ford untruthfully stated that she was not acquainted with appellant, whereas in fact Mrs. Ford and her husband had had business transactions with appellant and her husband, that certain disagreements arose and appellant found it necessary to secure the sheriff’s services to effect return of an abstract.

With respect to juror Dean Matthews, the affidavit attached to the motion stated that Matthews was asked whether he was acquainted with respective counsel or whether they represented him in any capacity and that Matthews did not indicate that he was personally acquainted with appellees’ counsel. It was also asserted that Matthews was asked whether he was connected with any casualty insurance company, either as agent or salesman, and he did not indicate to counsel or the court that he had any connection whatsoever with casualty insurance, when in fact he was manager of the insurance department of the Arkansas First National Bank. After appellees’ response and affidavits of jurors Ford, Matthews and Cox were filed, appellant’s counsel on August 24th, made the following affidavit:

. .that at the trial of this cause the first 18 prospective jurors called were asked certain questions by the court and in addition thereto were interrogated as to whether or not they had any connections with any casualty insurance companies as an agent, salesman, stockholder, or any other capacity. One juror answered this question in the affirmative, and there was some discussion as to whether or not that fact would influence him in any way in arriving at a decision in the present case, and the juror was finally excused.
“Mr. Dean Matthews was present in the courtroom at the time these questions were being asked on voir dire to the prospective jurors, and he was also present in the courtroom at the time that the court itself asked the prospective jurors as a group if they were personally acquainted with the attorneys or litigants. When Mr. Dean Matthews was finally called as a prospective juror and entered the jury box, the court asked Mr. Matthews if he had been present in the courtroom at all times that the prospective jurors that were waiting in the jury box were being questioned by the court and respective counsel, and Mr. Matthews indicated that he had been, and he was then asked by the court if he had heard the questions propounded by the court and counsel to the other prospective jurors and whether or not his answers to the questions would be any different than were the answers of the other prospective jurors. Mr. Matthews did not say “yes” or “no” or indicate either way by nodding his head, but maintained a strict silence.
“I do further state that neither myself nor my co-counsel was personally acquainted with Mr. Matthews, nor did any of the said parties have any knowledge of the fact that he was Manager of the Insurance Department of Arkansas National Company.”

Juror Ford’s affidavit denies that she was acquainted with appellant. It also denies the business disagreements asserted in appellant’s affidavit. The affidavit of juror Matthews denies that he is employed by the Arkansas First National Bank but admits he is manager of the Insurance Department of the Arkansas National Company. This affidavit denies thats Matthews was questioned as to whether he was acquainted with the attorneys and also denies that he was interrogated about any connection with casualty insurance companies. The affidavit of Freda Cox also denies that the last selected jurors were asked about their connection with any casualty insurance companies.

Ark. Stat. Ann. § 39-106 (Supp. 1969), provides:

“No verdict or indictment shall be void or voidable because any juror shall fail to possess any of the qualifications required in this Act [§§ 39-101—39-108, 39-201—39-220] unless a juror shall knowingly answer falsely any question on voir dire relating to his qualifications propounded by the court or counsel in any cause. A juror who shall knowingly fail to respond audibly or otherwise as is required by the circumstances to make his position known to the court or counsel in response to any question propounded by the court or counsel, the answer to which would reveal a disqualification on the part of such juror, shall be deemed to have answered falsely.”

In Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 349 S. W. 2d 133 (1961), we pointed out that under our statutes, as well as the practice in this state, it is too late after rendition of a verdict to raise the ineligibility of a juror to serve, unless it can be shown by the complaining party that diligence was used to ascertain the juror’s disqualification and to prevent his selection. We find this principle of law to be controlling as to juror Ford. Obviously appellant knew as much about her difficulties with juror Ford as juror Ford would have known and under the circumstances appellant owed an obligation to the trial court, the witnesses and the other jurors to call the matter to the court’s attention at the earliest possible moment.

The issue with respect to juror Matthews is somewhat closer. However, as we read the August 24th affidavit of appellant’s counsel, juror Matthews was asked if he had heard the questions propounded by the court and counsel to the other prospective jurors and whether or not his answers to the questions would be any different than those of the other prospective jurors. Since some of the prospective jurors had remained silent and others had answered and appellant’s counsel observed that Matthews neither answered nor responded in any way to make his position known, we hold that appellant has failed to show due diligence with respect to juror Matthews also. Had the question asked, been-one in which the silence amounted to an answer, then Ark. Stat. Ann. § 39-106, supra, would apply. However, as we read appellant’s affidavits, juror Matthew’s silence could not have been taken as an answer to the question as propounded.

Appellant also contends that the trial court erred in not hearing testimony on her motion. We find no merit in this contention because the trial court has no obligation to make a determination of whether or not a juror knowingly failed to respond audibly or otherwise as is required under the circumstances until such time as the movant has made a prima facie showing of diligence.

Affirmed.


author: Frank Holt, Justice.

text:
    F. F. MOON v. THE SPERRY AND HUTCHINSON CO., a Corporation
    5-5507
    465 S. W. 2d 330
    Opinion delivered April 12, 1971

      Brockman, Brockman if Gunti, for appellant.

      Warren if Bullion, for appellee.
   Frank Holt, Justice.

Appellant instituted this action against the appellee, owner of the S & H Green Stamp Center, for false imprisonment and detention. The trial court granted a motion for summary judgment against appellant and he appeals. For reversal appellant contends that the trial court erred because there were genuine issues of fact to be resolved by a jury.

Appellant entered the S & H Green Stamp Center to visit one of the employees who happened to be absent. An employee of appellee, Mrs. Lou Coil, thought she saw the handle of a pistol protruding from appellant’s pocket while appellant was in the store, acting in a manner that aroused her suspicion. The appellant was a stranger to Mrs. Coil. Mrs. Coil left the store and called the police. Two officers were directed to the Center where they were met outside the building by Mrs. Coil who accompanied them into the store and identified appellant.

There is a conflict of testimony as to the events which occurred after the police arrived. According to the evidence adduced by appellee, the officers approached appellant and asked if he had a gun. Appellant denied possession by saying: “I do not, search me,” and he put both hands up. The officer then “patted” the outside of appellant’s clothing and determined that appellant was not armed. Appellant was not further detained nor was an additional search conducted. According to appellant’s evidence, the police entered the store and approached him after Mrs. Coil had identified him as the man with a gun. After appellant had denied having a gun in his possession, the police asked him what he had in his hand, whereupon he showed them a car key in a leather case and told them he was a longtime local resident. The officers then stated: “Well, we have orders to arrest you and search you, put up your hands.” Appellant replied: “Okay, if you find anything why give me half of it please.” He stated the occurrence “kind of shocked me.” As to the police officers’ conduct during the investigation, appellant testified as follows: “I held my hands up and they went all over me. I wouldn’t say whether they ran their hands in my pockets or out.” Afterwards he left the store.

The only issue presented here is whether the trial judge acted properly in holding, as a matter of law, that appellee’s employee’s actions were insufficient to constitute false imprisonment.

Ark. Stat. Ann. § 29-211 (Repl. 1962) provides that a summary judgment shall be rendered if the pleading and proof on file show “that there is no genuine issue to any material fact and that the moving party is entitled to judgment as a matter of law.” Under the provisions of this statute, any evidence submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963). In support of his contention that a genuine issue of material fact did exist as to whether appellee’s employee did falsely arrest and detain him, appellant cites Ark. Stat. Ann. § 41-1601 (Repl. 1964) which defines false imprisonment as “the unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority.” It appears that appellee’s employee’s activities were confined to notifying the police and identification of appellant. The principle of law announced by this court in McIntosh v. Bullard, Earnheart & Magness, 95 Ark. 227, 129 S. W. 85 (1910) is: “Where a person does no more than to give information by affidavit to an officer relative to a matter over which he has jurisdiction, such person is not liable for a trespass for false imprisonment for the acts done under a warrant which the officer issues on said charge.” The above mentioned rule was made in conjunction with an action for illegal arrest and false imprisonment, a fortiori, we think it controls in the case at bar.

This rule is in accord with the general rule laid down in 22 Am. Jur., False Imprisonment, § 30, p. 371, which reads as follows: “To be liable in an action for false imprisonment, one must have personally and actively participated therein directly or by indirect procurement.” 32 Am. Jur. 2d, False Imprisonment, § 35, p. 99, sets out what constitutes direction or investigation as follows: “In short, the arrest by the officer must be so induced or instigated by the defendant that the act of arrest is made by the officer, not of his own volition, but to carry out the request of the defendant. Merely summoning an officer for protection or to keep the peace, or to deal with a person accused of crime, is not sufficient participation to impose liability, as a general rule.” To the same effect, see Restatement, Second, Torts, § 45A. Even though Mrs. Coil was mistaken in her belief that appellant was carrying a gun, her actions of calling the police and identifying appellant are insufficient acts, in the circumstances, to constitute direct or indiréct procurement of the alleged detention. 21 ALR 2d 643—717 [ALR 2d Later Case Service 3, §§ 23, 27]. As we view this record, there is no genuine issue of a material fact. When the evidence is considered most favorably to appellant, it merely shows that appellant was detained only by the police for a period of time sufficient to conduct a limited investigation by them.

Affirmed.

Byrd, J., concurs.


text:
    Sallie JOHNSON v. C. H. JOHNSON et al
    5-5517
    465 S. W. 2d 309
    Opinion delivered April 12, 1971
    [Rehearing denied May 3, 1971.]

      F. C. Crow, for appellant.

      Raffelli, Hawkins ir Carter, for appellees.
   Frank Holt, Justice.

This case involves the issue of a cotenancy. The appellees, some of the heirs of Jane Johnson who died intestate in 1919, brought this action against appellant and others in 1969 as cotenants to partition 120 acres and to establish all of their respective interests. The appellant responded, by asserting her ownership by virtue of a recorded deed in 1952 and also by adverse possession and asked that title be quieted in her. The chancellor found that the parties to this action are cotenants and ordered a partition of the lands.

At the time of Jane Johnson’s death in 1919, two of her eleven children, Ralph and Fred Johnson, were living on the property and they continued to live there after her death. Several years later (1922), Ralph married Sallie and she moved onto the property with him. In 1'926, while Ralph and Sallie were living on the property, the taxes were not paid and on June 13, 1927 a tax sale was held whereby C. F. Routon bought the property at the tax sale. Routon received a deed from the County Clerk of Hempstead County, Arkansas and recorded the deed on May 30, 1934. For the years 1927 through 1951, taxes ($302.69) on the 120 acres were paid by Routon, during which time Ralph and Sallie were his tenants. In 1952 Routon and wife conveyed by quitclaim deed their interest in the property for $500 to Ralph and Saliie Johnson. In 1954 Ralph and Sallie moved their residence to a nearby tract but continued to farm the 120 acres. In 1958 Ralph Johnson died. After his death, Sallie continued to either farm or rent the property and retained the profits for her sole benefit without interference from the other heirs until 1969 when this suit for partition was filed.

On appeal appellant asserts that the court erred in holding the 1952 deed from C. F. Routon and wife to Ralph and Sallie Johnson was a mere redemption for the benefit of all cotenants. We think the court was correct. It is well established that a tenant in common of land cannot acquire title to the interest of his cotenants by purchase at a tax sale nor by the purchase of the property from a third person who bought at the tax sale. Findley v. Tyler, 227 Ark. 663, 300 S. W. 2d 598 (1957); Smith v. Smith, 210 Ark. 251, 195 S. W. 2d 45 (1946); Sanders v. Sanders, 145 Ark. 188, 224 S. W. 732 (1920). Ralph and Sallie continued to remain in possession of the property, without visible change to other members of the family or cotenants after the tax sale, throughout the entire time that Routon paid the taxes and also after the conveyance to them of the property by quitclaim deed. It appears that none of the other cotenants had reason to believe that a tax sale and subsequent conveyance to Ralph and Sallie had ever occurred. In fact, Sallie testified that the other cotenants were never notified that she and Ralph were occupying the lands as tenants of Routon because she thought she “had no right to tell them.” The relationship between cotenants is one of trust and confidence and it would be inequitable to permit one of them to do anything which prejudiced the interest of the other.

Appellant also asserts ownership by adverse possession and asked that title be quieted in her. Ralph, until his death in 1958, and Sallie, to the present time, continued to use and possess the land after their purchase from Routon in 1952. In order for one co-tenant to acquire the title of his cotenants by adverse possession, use and possession of the land alone is insufficient; there must be some act sufficient in itself to give notice that the cotenant in possession is claiming in hostility to and not in conformity with the rights of others having an interest in the property. The co-tenant must bring home “to his cotenants the knowledge of his hostile claim, either directly or by acts so notorious and unequivocal that notice must be presumed.” McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714 (1960). See, also, Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125 (1952); Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690 (1944). In order for appellant Sallie Johnson to establish ownership by adverse possession, where a family relationship exists, she must sustain the burden of proof of such possession and such proof must be by stronger evidence than that required in cases involving adverse possession against a stranger. Staggs v. Story, supra. There is a conflict in appellant’s testimony concerning the year in which notice of the Routen deed was given the cotenants. On direct examination she testified to giving notice of the 1952 purchase to one of the cotenants, Mrs. Wafer, about a year after Ralph Johnson’s death in 1958. However, on cross-examination she replied: “Yes, sir” when asked, “In other words, it could have been five or six years ago that you told them you had the property in black and white.” As previously indicated, she also stated that neither she nor her husband, prior to the Routon deed, gave their cotenants notice of being tenants of Routon as a result of the tax sale. She testified: “I told you I didn’t claim the property until I got it in black and white” (1952 deed). The appellees adduced evidence that they were unaware of appellant’s asserted claim of adverse possession until three or four years at the most before instituting this action. Since there was testimony showing that actual knowledge of the adverse holding was not timely brought home to the cotenants, the trial court could find that appellant Sallie Johnson failed to establish her claim of adverse possession by the required burden of proof.

Nor do we find any merit in appellant’s contention that laches bars the claim of the cotenants, the appellees. Appellant Sallie Johnson was permitted to occupy and benefit from the use of the property without any accounting to the appellees. Any improvements made to the property appear to consist of the construction of a small barn and the expenditure of $40 for a fence. See Vesper v. Woolsey, 231 Ark. 782, 332 S. W. 2d 602 (1960).

As a subsidiary contention, appellant poses the question as to the correctness of the court’s findings with respect to the purchasers of the interests, of two of the heirs. Upon a canvass of the entire record, we are of the view there is no merit in this contention.

After having considered each of appellant’s contentions for reversal, we cannot say that the chancellor’s findings are against the preponderance of the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    COMMERCIAL PRINTING CO., INC. v. ARKANSAS POWER AND LIGHT COMPANY and ARKANSAS PUBLIC SERVICE COMMISSION
    5-5468
    466 S. W. 2d 261
    Opinion delivered April 19, 1971
    [Rehearing denied May 24, 1971.]

      Darrell Hickman, for appellant.

      House, Holmes <tr Jewell and Benjamin C. McMinn, for appellees.
   Carleton Harris, Chief Justice.

In November, 1968, the Arkansas Power and Light Company, an appellee herein, filed with the Public Service Commission, in accordance with the provisions of Ark. Stat. Ann. § 73-217-18 (Repl. 1957) for approval of a new rate schedule entitled “Gross-Net Billing Rider Rate Schedule M15”, the new schedule to become effective on December 31, 1968. Pursuant to law, the effective date of this rate schedule was suspended by order of the Commission. Upon filing the rate schedule, notice was given by having a copy served on the elected officials of every municipality in Arkansas in which appellee operated. Thereafter, two separate groups of consumers intervened, attacking the terms, conditions, and provisions of the rate schedule. In January and February of 1969, the Commission conducted hearings in which testimony was taken, with full participation of the commission staff and representatives of the interveners. An order was entered on May 9, 1969, in which the schedule, with certain modifications, was approved. Following approval by the commission, Rate Schedule Rider M15 was applied to billings of the company. No consumer interveners petitioned for judicial review, and the time for review expired. Briefly stated, the order permitted the company, when a customer had not paid his bill within ten business days from the time of billing, to add an amount equal to 8% of the first $15.00 of the bill, plus 2% of the net bill amount in excess of $15.00.

On November 14, 1969, appellant, Commercial Printing Company, Inc., instituted suit in the Pulaski County Circuit Court against appellee and the Public Service Commission, wherein appellant stated that it had followed a practice of paying its bills on or before the tenth day of each month but that as a result of Rate Schedule M15, appellant found itself in the position of being a delinquent consumer; that the application of the penalty was discriminatory against appellant and other consumers, and was unreasonable ánd exorbitant. It was also alleged that the penalty was usurious. The prayer of the complaint was that the penalty be declared null and void; that a restraining order be issued prohibiting the enforcement of the said penalty and that appellee company be restrained from disconnecting utility service to appellant. The complaint was subsequently amended to allege that the suit was brought as a class action by appellant on its behalf and that of the rest of the customers who were affected by the order. Arkansas Power and Light Company answered, denying that the provisions of Rate Schedule M15 were discriminatory, unreasonable, exorbitant, or usurious; asserting that the order of the Commission was final and conclusive, there having been no petition for court review; further, that the complaint constituted a collateral attack on the orders of the commission and it was prayed that the complaint be dismissed. The company also counterclaimed for the amount which it contended Commercial Printing Company, Inc. owed to it. The Public Service Commission answered, asserting that consideration and determination of the procedures of billing set out in Rate Schedule M15 were matters solely within its jurisdiction, subject only to judicial review, and that no judicial review having been sought, the order <had become final. Subsequently, Arkansas Powea? and Light Company amended its answer to assert that the cause of action was barred by res judicata under the Supreme Court decision in the case of Coffelt v. Arkansas Power and Light Company, 248 Ark. 313, 451 S. W. 2d 881. After the filing of motions by appellant for the commission to be required to file certain records, and power and light company to answer certain interrogatories, appellees moved for summary judgment, supporting said motion with affidavits and exhibits. These included a certified copy of the order of the Public Service Commission approving Rate Schedule Ml5, dated May 9, 1969, and an order of the Public Service Commission dated June 2, 1969, wherein a petition for review and reconsideration filed by intervener Odell Smith for himself and as representative of a class of persons was denied, and Smith’s notice of appeal noted. Further exhibits included a complaint filed in the Chancery Court of Pulaski County as a class action by Kenneth Coffelt, individually, and as a citizen and tax payer of the State of Arkansas, the answer of the Arkansas Power and Light Company to such complaint, the order of the Chancery Court granting a motion for summary judgment in the case of Coffelt v. Arkansas Power and Light Company supra, and a copy of the opinion of the Arkansas Supreme Court affirming the decision of the Pulaski County Chancery Court in that case. The motion was further supported by the affidavit of O. V. Holeman, Manager of Rates and Research of Arkansas Power and Light, which set out that upon the filing of the aforementioned rate schedule with the Arkansas Public Service Commission, copies of the rate schedule and notice of the filing had been filed with city officials of each of the incorporated municipalities in which appellee company provided service. The affidavit incorporated the contents of Rate Schedule M15, and further recited that on December 26, 1968, an intervention was filed by a group of interested consumers in which they objected to the rate schedule; that it was suspended to prevent its becoming effective pending hearings which were subsequently conducted, following a second intervention by an additional group of consumers; that following the approval of the rate schedule by the Public Service Commission, no petition for review of this order was filed with the commission or with the Circuit Court of Pulaski County by any party. The affidavit of the assistant treasurer of the company was simply that appellant had been billed in accordance with the schedule, had not made payment, and was indebted to the company in the amount of $124.58. Counter-affidavits, or exhibits, were not filed by appellant, but it did file an unverified response reiterating that summary judgment should be denied because the order was discriminatory against appellant and the class of consumers represented, and it stated that res judicata could not be relied upon because of Coffelt v. Arkansas Power and Light Company supra, that case being heard entirely on the issue of usury and not on the issue of discrimination. The court granted the motion for summary judgment, finding that the commission was the agency invested by law with the authority to hear matters pertaining to the issues raised by appellant, and that appellant was afforded an adequate, complete and expeditious remedy at law under the statutes authorizing appeals from orders of the commission for judicial review. The court found that there was no genuine issue as to any material fact, and granted the summary judgment, dismissing the complaint. From the judgment so entered, appellant brings this appeal. For reversal, it is simply urged that “The lower court was the proper forum to adjudicate the illegal and unlawful order of the Public Service Commission”._

Appellant commences its brief with an erroneous premise. From appellant’s brief:

“It must be assumed that all of the allegations of the complaint and the amended complaint are true. The lower Court granted motions for summary judgment filed by both defendants and found that there was no genuine issue as to any material fact.

It cannot be denied, for purposes of review, that the order in question is discriminatory, illegal and unjust. It must be admitted, for the purposes of review, that these facts are not in dispute. Therefore, we consider this matter on appeal on the basis of the cause of action stated in the complaint and the amended complaint in light of the laws of the State of Arkansas.”

We do not treat motions for summary judgment in the same manner as a demurrer. It is true that when a demurrer is filed, the allegations of the complaint are treated as true for the purpose of testing the sufficiency of the complaint in stating a cause of action. But this is not true where a motion for summary judgment is supported by affidavits and other exhibits. In Coffelt v. Arkansas Power and Light Company supra, we said:

“We should add that the appellant is mistaken in suggesting in his brief that the facts supporting the motion for summary judgment must be treated as being disputed by the plaintiff’s verified complaint. That view was originally taken by some federal courts in construing the Federal Rules of Civil Procedure, but both the Rules and our summary judgment act have been amended to make it clear that proof must be met with proof. This is the pertinent language in Act 160 of 1967: ‘When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.’ Ark. Stat. Ann. § 29-211 (e) (Supp. 1969). Inasmuch as the plaintiff in the case at bar filed no response whatever to the defendant’s motion for summary judgment, the facts established by that motion stand undisputed.”

No specific reason whatsoever is set forth why the order is discriminatory, but at any rate, the matters complained of are clearly rate making functions. Were the court to have complied with the prayer to determine the issue urged in appellant’s complaint, it would have been necessary to originally determine all of the issues and questions which arise at a rate hearing, functions which are certainly legislative and administrative in nature. As pointed out in the brief filed by the Arkansas Power and Light Company, what would have been the final result if the court had denied the motion for summary judgment, found that res judicata did not apply, and that the court had jurisdiction to hear the facts which appellant contends would have disclosed discrimination? Let us assume that the court heard the evidence and found that the rate schedule operated in a manner to discriminate against appellant. Would the court then have redesigned the schedule, added new terms, or taken away some of its provisions? If so, it is clear that it would have been engaged in what the General Assembly has declared to be a legislative function, i. e., the regulation of rates of a public utility. If, in fact a court is empowered to take such action, what then is the need for the Arkansas Public Service Commission, and its group of experts? The only other action the court could have taken would have been to refer the matter back to the Public Service Commission for further consideration. The effect of such action would result in appellant being given a judicial review several months subsequent to the legal time limit provided in Ark. Stat. Ann. § 73-233 (Repl. 1957). While apparently a notice of appeal was given by one of the interveners, the matter was not pursued. To allow the procedure contended for by appellant would be to repeal the statutory provision for court review of the Public Service Commission orders; the appeal provisions would simply, in effect, be stricken from the statute.

In Southwestern Gas & Electric Co. v. City of Hatfield, 219 Ark. 515, 243 S. W. 2d 378, we said:

“Orderly procedure and administrative efficiency demand that the regulatory body be vested with authority to make preliminary determination of legal questions (our emphasis) which are incidental and necessary to the final legislative act. Otherwise endless confusion would result because different phases of the same case might be pending before the Commission and the courts at one time.”

This does not mean that no adequate remedy at law is provided. In McGehee v. Mid South Gas Co., 255 Ark. 50, 357 S. W. 2d 282, we squarely held that the procedures (mentioned in the sections already referred to) provide an adequate remedy at law. The background of that case is as follows: Mid South Gas Company and Arkansas Louisiana Gas Company entered into an agreement by the terms of which Arkla would issue a certain number of shares of its common stock to Mid South and would assume the debts and obligations of Mid South, all in exchange for the properties and assets of Mid South as a going concern. Since both of these companies were public utilities, the agreement was subject to the approval of the Public Service Commission, and the two companies filed their joint application for approval of the plan, the commission setting the matter for hearing. McGehee was a stockholder in Mid South and filed a complaint in the Pulaski Chancery Court against that company, its officers and directors, alleging in his complaint that it was a class suit in his behalf and that of others similarly situated, and that, without notice to the stockholders, the officers and directors of Mid South had entered into the agreement with Arkla. He then set out several reasons why he considered the agreement to be illegal and void and prayed that Mid South, its officers and directors, be restrained from further proceeding in the agreement with Arkla. On the same day that McGehee filed his suit in Chancery Court, he also filed before the Public Service Commission a motion for continuance, advising the commission of his chancery suit and praying that the commission delay any action with regard to approval of the plan until the chancery case could be heard and decided. He also filed a response and objection to the proceedings, presenting the same questions that he had raised in the chancery court.

The Public Service Commission overruled his motion for continuance, denied the objections and response of McGehee, and approved in every respect the agreement. Thereafter, Mid South filed a motion in the Chancery Court to dismiss McGehee’s complaint, setting out inter alia that the same questions were being presented in the chancery case that had been presented before the commission; that McGehee could appeal the adverse ruling by the commission, and that such remedy at law by appeal was adequate and complete. McGehee responded, claiming that the Public Service Commission was without jurisdiction to hear the matter; that his rights of appeal from the commission’s ruling were not adequate and complete; that the commission was merely an administrative tribunal and had no authority to adjudicate the questions raised in the chancery court. The chancellor sustained the motion to dismiss and Mc-Gehee appealed to this court.

In a comprehensive opinion, this court mentioned several of our prior holdings, and then stated:

“In these four cases—and others could be cited to the same effect—we have held that the Commission in the first instance and the courts on appeal could consider such matters as each of the five points of attack made by McGehee in the case at bar. It thus follows that McGehee’s remedy through the proceedings before the Commission and on appeal, was full, adequate and complete in that he could urge every point that he alleged in the Chancery Court. That his remedy through the Commission’s proceedings was expeditious is shown by the fact that the Commission’s Order was made on July 5, 1961, affirmed by the Circuit Court on September 25, 1961, and an appeal to this Court was dismissed on February 19, 1962, because McGehee had not pursued his appeal expeditiously and within the time prescribed by law. The fact that McGehee lost his appeal to this court—questioning the Public Service Commission’s Order—by failing to prosecute it in due time, does not reinstate equity jurisdiction, because' where a legal remedy has been lost, through failure to seek it at the proper time, equity will not for that fault entertain jurisdiction.”

It should be clear that since this decision applies to the extraordinary equity jurisdiction of the chancery court, it very clearly would also apply to the circuit court’s jurisdiction at law. Particularly pertinent to the present litigation is the fact that McGehee’s appeal from the order of the commission to the circuit court was not heard—due to the fact that he did not timely prosecute it. Here also, no appeal was prosecuted, leaving the decision of the commission unchallenged—and fully effective.

Nor was this court’s action in McGehee inadvertently taken; rather it was specifically called to the attention of this court by the lone dissenter who, in effect, presented the same argument made here. Quoting from the dissent:

“If McGehee can substantiate the allegations of his complaint in chancery court, it means money in his pockets. I assume that no one questions his right to try to prove his case against Mid South in a court of competent jurisdiction. The majority opinion denies McGehee this right unless the Arkansas Public Service Commission is in fact such a court.

To my mind, to state the above issue is to answer it. I have never heard it contended or even intimated that the Arkansas Public Service Commission was a court, in law or equity, to resolve legal differences between individuals or corporations.

It cannot be disputed that the Public Service Commission has only such powers as are given it by the legislature. Ark. Stats. § 73-115 contains that grant of powers which is ‘all matters pertaining to the regulation and operation of—’ (naming the several utilities). Nowhere is the commission invested with the general powers of a court. Yet, the effect of the majority opinion is to invest the commission with the general jurisdiction of a duly constituted court.”

The dissenting opinion then states that the right of appeal to the circuit court is not adequate because, in a court hearing, evidence would be introduced in accordance with rules developed by decisions over a long period of time, but that the commission is not bound by the strict technical rules of pleading and evidence; that the appeal to the circuit court would be only heard upon the record presented, which in the view of the dissenting Justice, was not adequate. As stated, this court, by a vote of six to one, held to the contrary, and what was said in McGehee, i. e., that his remedy “through the proceedings before the commission and on appeal, was full, adequate and complete # * *” is fully applicable to the instant litigation.

Appellees also offer an additional defense to appellant’s complaint, viz, that the cause of action was barred under the doctrine of res judicata, this defense being based on our opinion in Coffelt v. Arkansas Power and Light Company supra. There may well be merit in this contention, but since we consider the first point, heretofore discussed, to be dispositive of the question posed in the litigation, there is no need to discuss the second.

Affirmed.

       The court also held that the motion of appellant to require the commission to file certain records and for the power and light company to answer certain interrogatories “are therefore moot”. The counter-claim of the power and light company was also dismissed without prejudice to the company for recovery of any sums due it by appellant under the appellee’s approved rate schedule.


author: George Rose Smith, Justice.

text:
    Dora BERRY v. Clarence BIERMAN et al
    5-5552
    465 S. W. 2d 688
    Opinion delivered April 19, 1971

      Kenneth Coffelt, for appellant.

      Hall, Tucker ér Lovell, for appellees.
   George Rose Smith, Justice.

This case is a sequel to an earlier one in which we held that the appellee Bierman was the owner of a certain house and lot, subject to the appellant’s option to repurchase the property from Bierman for $2,100. Berry v. Bierman, 248 Ark. 440, 451 S. W. 2d 867 (1970). That opinion was delivered on April 6, 1970, and became final 17 days later. Ark. Stat. Ann. § 27-2142 (Repl. 1962); Supreme Court Rule 20 (a). Our mandate to the trial court was duly issued on April 24, 1970.

On July 14, 1970, which was 82 days after our decision became final, the dwelling house in question was destroyed by fire. On March 3, 1970, Bierman had obtained and paid for a $7,000 fire insurance policy upon the house. After the fire the appellant, who had not previously exercised her option to repurchase, claimed the proceeds of the fire insurance policy, which the insurer paid into court. This appeal is from a decree awarding the money to Bierman.

In seeking a reversal counsel for the appellant misconstrues our decision in the earlier case, by saying that we held "that Mrs. Berry was the fee simple title holder to the property and that Bierman had no title, or color of title, to the property, whatsoever.” That was not the effect of our decision, as a review of the facts will demonstrate.

In 1955 Mrs. Berry conveyed the property to Bier-man (her brother) for $2,100, reserving in the deed an option to repurchase the property for the same price' at any time after four years from the date of the deed. In 1969 Bierman filed the complaint in the first case, asking that the deed be reformed by a cancellation of the option to repurchase. Mrs. Berry filed a counterclaim in which she sought to enforce the option to repurchase. Bierman then amended his complaint by seeking to recover the value of his improvements if Mrs. Berry were allowed to repurchase the property. The effective part of the decree in that case consisted of these three paragraphs:

1. That plaintiff’s prayer for reformation of the deed introduced into evidence at the trial is denied.
2. That plaintiff, Clarence C. Bierman, has made improvements upon the land ... in the sum of $1,500.00 and that Dora Berry must pay Clarence C. Bierman the sum of $3,600.00 to exercise her option in the repurchase of the property . . .
It is, therefore, by the Court, considered, ordered and adjudged that plaintiff’s prayer for reformation of the deed ... is hereby denied, and that Dora Berry must pay Clarence C. Bierman the sum of $3,600.00 in order to repurchase the property described in the complaint of the plaintiff and exercise her option.

Bierman did not appeal from the chancellor’s denial of his prayer for reformation. Upon Mrs. Berry’s appeal we held that the chancellor was in error in allowing Bierman $1,500.00 for his improvements. After referring to the betterment statute, Ark. Stat. Ann. § 34-1423 (Repl. 1962), we concluded our opinion in these words:

The deed in question does not fall in the category of a “color of title” instrument as that phrase is used in the betterment statute. See Thompson, The Law of Real Property, § 2650 (1940). On its face the deed from Berry to Bierman contains a right of redemption or repurchase which limits the fee simple conveyance.
We reverse and remand with directions that appellee be relieved of any liability for the improvements.

In the section of Thompson’s treatise which we cited, the author makes it clear that color of title is actually no title at all: “ ‘Color of title’ is anything in writing which, upon its face, professes to pass title, but which does not do it ... It implies that a valid title has not passed to the claimant. . . . Color of title is not, in law, title at all. It is a void paper, having the semblance of a muniment of title, to which, for certain purposes, the law attributes certain qualities of title.” Thompson, supra.

Hence when we said that the Berry-Bierman deed was not color of title, our reasoning was that the deed conveyed actual title (subject to' the option to repurchase) rather than a mere semblance of title. In that view Bierman was the owner of an insurable interest in the dwelling house when he obtained the fire insurance policy upon that structure. Mrs. Berry had not exercised her option to purchase when the house burned. To the contrary, the trial court’s decree in the first case, which we merely modified, declared that “Dora Berry must pay Clarence C. Bierman the sum of $3,600.00 in order to repurchase the property described in the complaint of the plaintiff and exercise her option.” The decree, significantly, did not direct Mrs. Berry to exercise her option; it merely recognized her right to do so if she chose. If the house had been uninsured when it burned, Bierman could not have compelled Mrs. Berry to pay $2,100 for the vacant lot.

Mrs. Berry had not exercised her option to repurchase when the house was destroyed by fire more than 80 days after our decision became final. Consequently Bierman was still the owner of the property and is entitled to the proceeds of the insurance policy which he bought and paid for. We need not discuss the appellant’s offer to prove at the trial that Bierman had orally agreed back in 1955 to keep the property insured. Not only would such an agreement «violate the parol evidence rule, as the trial court held, but also the point is not argued in the appellant’s brief.

Affirmed.