text:
    Joe A. ARNOLD v. ALL AMERICAN ASSURANCE Company
    73-92
    499 S.W. 2d 861
    Opinion delivered October 15, 1973

      W. K. Grubbs Sr., for appellant.

      Richard E. Griffin and Robert J. Johnson, for appel-lee.
   John A. Fogleman, Justice.

This appeal questions the propriety of a summary judgment recovered by ap-pellee insurance company against Joe A. Arnold, its agent in Eudora. The liability asserted by appellee arose through the issuance by Arnold of eight certificates of credit life insurance for a total of $11,163.04 on the life of Van B. Austin, who died on January 8, 1972, while all were in force. Appellee’s recovery was based upon the issuance of certificates in excess of $10,000, the limit on Arnold’s authority. Because of evidence of appellee’s ratification of the agent’s acts, we agree with appellant that the summary judgment against him was erroneous.

Arnold was an officer of The Eudora Bank. The certificates issued by him were coincident with loans made to Austin by that bank. The numbers, dates and amounts were as follows:

Certificate No. Date Amount

3695S 1/20/70 $ 3,489.84

698S 3/5/71 3,416.76

6S2S 3/26/71 800.00

1883S. 6/14/71 856.44

1782S 8/17/71 1,000.00

17838 8/17/71 800.00

1784S 8/17/71 200.00

1785'S 8/17/71 600.00

TOTAL 11,163.04

The°se were all issued under a credit life master policy issued by appellee to the bank on April 21, 1969, on which date Arnold was appointed as appellee’s agent. Under the provisions of the policy, the insurance on the life of the bank’s borrower was effective simultaneously with the making of the loan if the name of the debtor was furnished and the insurance premium paid. The policy limited coverage to $10,000 on the life of any one debtor. It provided for payment, upon death of an insured debtor, to the bank to the extent of its interest, and since the certificates were “level term” any excess was then to be paid to the estate of the debtor.

By letter of September 4,' 1969, appellee directed Arnold’s attention to the limitation on his authority to issue certificates on the life of one debtor. Appellee furnished its agent a form for reporting certificates issued under the master policy and remitting the premiums. These reports were made monthly. The form did not provide a place for listing names of debtors, but about the twenty-fifth day of each month a copy of each certificate was transmitted to appellee along with the report and remittance for the total premiums involved.

Appellee promptly paid $10,000 to the bank, but did not pay the excess to the executrix of Austin’s estate until after she had filed suit and obtained judgment against appellee. Appellee defended on the basis of the master policy limits, and cross-complained against Arnold for any amounts it was required to pay Austin’s estate, alleging that he had exceeded his authority. Arnold defended by pleading estoppel and waiver of both the policy limitation and the limitation on his authority. Both appellant and appellee then filed motions for summary judgment based upon the pleadings, answers to interrogatories and requests for admissions. The circuit court granted appellee’s motion and rendered judgment for $800.

It was disclosed that appellee, after paying the bank, tendered the return premium on certificates 1784S, 1785S and for pardal cancellation of 6S2S exactly two months after Austin’s death. No explanation is made for the apparent random selection of policies on which to return the premium, but it is clearly indicated that the $10,000 payment included certificate number 1788S, issued on the same date as 1784S and 1785S. There is no indication that issuance of certificate number 632S was unauthorized, because the amount of credit life insurance on Austin outstanding prior to the issuance of this $800 certificate was only $6,906.60. Arnold stated in his affidavit that he never received notice of issuance of certificates on Austin’s life in excess of limits until after claim was made on the policies by Austin’s executrix. Appellee admitted that, prior to the death of Austin, it had not notified either the bank or Austin of any over-issue of certificates. By answers to interrogatories, appellee stated that, under its procedures, each individual certificate is reviewed to determine compliance with the terms of the master policy. It also informed the court that a data processing control system to disclose issuance of certificates in excess of $10,000 on the life of one person had been established after January 1, 1972, but that the system was new and still in the process of being perfected. Appellee admitted receipt before September 1, 1971, of Arnold’s report and premium remittance dated 8/24/71 covering the period from July 29, 1971, to August 24, 1971, together with copies of certificates 1782S, 1783S, 1784S and 1785S.

The circuit judge held that appellee was entitled to recover $800 from Arnold, as a matter of law. We do not agree. The judgment was based upon the court’s finding that appellee advised Arnold of the cancellation of excessive certificates as soon as it knew of the over-issue. Apparently, the judgment was limited to the face amount of certificates 1784S and 1785S, because the issuance of certificate 632S did not result in an over-issue.

We do not know how the court arrived at the finding that, as a matter of law, appellee acted to cancel the excess certificates as soon as it knew of the over-issue. It is admitted that a full report of the issuance of each certificate on Austin’s life had been in the hands of the insurance company for at least four months prior to Austin’s death. The information included the date and term of the certificate, its amount, the name of the debtor insured and a designation of the master policy. Consequently, appellee had been informed of everything Arnold knew relating to these particular certificates. Even when appellee remitted $10,000 to the bank on February 23, 1972, it did not then tender any return premium or attempt to cancel any certificate. It waited for two weeks thereafter to do so, at which time demand for payment of the excess had been made by the attorney for Austin’s estate.

At the outset, we point out that appellee’s argument that the judgment should be affirmed because there is substantial evidence to support it has no application to a summary judgment in its favor. The only conditions that justify granting a summary judgment are those under which the moving party is entitled to judgment as a matter of law. Borden, Inc. v. Wommack, 253 Ark. 1067 (1973), 490 S.W. 2d 781; Weathers v. City of Springdale, 239 Ark. 535, 390 S.W. 2d 125; Ark. Stat. Ann. § 29-211 (Repl. 1962). These conditions exist only when there is no genuine issue as to any material fact and when, even though the facts are undisputed, reasonable, fair-minded persons could only draw one conclusion from them. Borden v. Wommack, supra; Wilson v. McDaniel, 247 Ark. 1036, 449 S.W. 2d 944; Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543; Harvey v. Shaver, 247 Ark. 92, 444 S.W. 2d 256; Bergetz v. Repka, 244 Ark. 60, 424 S.W. 2d 367. We do not find such a condition to prevail here. The burden was upon appellee to show its entitlement to summary judgment, and if there is any substantial evidence on which a contrary result could be reached, the judgment should be denied. Widmer v. Modern Ford Tractor Sales, 244 Ark. 696, 426 S.W. 2d 806; Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646; Reddell v. Missouri Pacific Railroad Company, 238 Ark. 753, 384 S. W. 2d 486. See also, Knox v. Goodyear Stores, 252 Ark. 530, 479 S.W. 2d 875. Appellee failed to meet this heavy burden.

Appellant contends that since he had made full disclosure to his principal of all information he had relating to the issuance of the Austin certificates, ap-pellee had all the knowledge appellant had of the over-issue; and, by failing to protest and keeping the premiums until claim was made on the certificates by Austin’s estate, it waived the limitation on his authority, ratified his acts in the premises and is estopped to seek reimbursement from him. Insofar as the evidence disclosed by the record relied upon on the motions for summary judgment is concerned, we agree with appellant. To say the least, there is a genuine, material issue of fact raised by appellant’s defense.

In the law of agency the concept of ratification is closely related to the doctrine of estoppel, even though the two may be distinguished. The matter is discussed by the authors of Corpus Juris Secundum. They say:

Ratification is a doctrine of agency, which is well-established in the common law, and it refers to the express or implied adoption and confirmation by one person of an act or contract performed or entered into in his behalf by another without authority. * * * The substance of the doctrine of ratification is the idea of confirmation after conduct, and the doctrine is based on evidence of such complex factual elements as knowledge of the facts, acceptance of benefits, change of position, agency, and approval of conduct. Ratification proceeds upon the assumption that there has been no prior authority and constitutes a substitute therefor; it is in the nature of a cure for authorization and is equivalent to original, prior or previous authority.
Although it has been observed that in the literature of the law there has often been little disposition to distinguish between ratification and estoppel in pais, they are, nevertheless, distinguishable, * * *.
The substance of ratification, as distinguished from that of estoppel which is the inducement to another to act to his prejudice, is confirmation after conduct. Although acts and conduct amounting to an es-toppel in pais may also amount to a ratification, the elements of an estoppel in pais are not, as such, required to be present in order to have a complete ratification. Hence, where there exists, in fact, a sufficient ratification, there is no need of invoking the doctrine of estoppel.
* * * notwithstanding their capability of being distinguished, ratification and estoppel are closely allied; the legal effect thereof is the same; the abstract difference between them may not render it improper to consolidate them, or to include one in the other, in the concrete consideration of the facts of a particular case; and the terms “ratification” and “estoppel in pais” are sometimes used in a way which seems to ignore any distinction between them.
The agent may sometimes invoke estoppel against his principal when the latter seeks to hold him responsible for unauthorized acts. If the principal upon being informed of them does not promptly repudiate them, he will be estopped to deny the agent’s authority, and this is so where he has knowledge of such acts and accepts the benefit of them.

While it cannot be said that Arnold was induced to exceed his authority by any act of his principal, we will consider the matter in the light of the interrelationship of the two principles rather than according to the strict abstract distinctions between them. The facts pleaded and shown on motion for summary judgment are sufficient in our opinion to raise the questions of waiver, estoppel and ratification.

It is well settled in Arkansas law that when the principal has knowledge of the unauthorized acts of his agent, and remains silent, when he should speak, or accepts the benefit of such acts, he cannot thereafter be heard to deny the agency but will be held to have ratified the unauthorized acts. St. Louis-San Francisco Railway Co. v. Lee Wilson Company, 212 Ark. 474, 206 S.W. 2d 175. It is also clear that ratification may be implied, rather than express, and implied ratification may be inferred from the acts and words of the principal. Kirkpatrick Finance Company v. Stotts, 185 Ark. 1089, 51 S.W. 2d 512. It has been said that affir-mance of an unauthorized transaction may be inferred from a failure to repudiate it, or from receipt or retention of benefits of the transaction with knowledge of the facts. Restatement of the Law, Second Edition, Agency, §§ 94, 98, 99; 3 Am. Jur. 2d 560 — 564, Agency, §§ 175, 176, 178. Of course, less is required to constitute a ratification as between the principal and a third party than between principal and agent. Kirkpatrick Finance Company v. Stotts, supra. However, it seems to be well recognized that ratification of unauthorized acts of an agent acting in excess of his powers releases the agent from liability to the principal for violation of his duty, if the principal has full knowledge of all the circumstances at the time of the ratification and has not been obliged to affirm the act to protect his own interests or induced to do so by misrepresentation or duress of the agent. Restatement of the Law, Second Edition, Agency, § 416; 3 Am. Jur. 2d 571, 587, Agency, §§ 186, 210.

A fundamental requirement to finding ratification, at least when the principal has not received any benefits from the transaction, is that the principal have full knowledge of all material facts connected with the transaction and not merely an opportunity to know them. McCarroll Agency v. Protectory for Boys, 197 Ark. 534, 124 S.W. 2d 816; City National Bank v. Riggs, 188 Ark. 420, 66 S.W. 2d 293; Bank of Hoxie v. Wollen, 181 Ark. 843, 28 S.W. 2d 61; Coffin v. Planters Cotton Company, 124 Ark. 360, 187 S.W. 309. But failure to object may constitute acquiescence or ratification, if from the facts and circumstances adduced in evidence, it can be said that the principal must have known, or had knowledge of facts to put him on notice, of the agent’s unauthorized actions. Brown v. Maryland Casualty Company, 246 Ark. 1074, 442 S.W. 2d 187; American Mortgage Company v. Williams, 103 Ark. 484, 145 S.W. 234. See also, Johnson v. Wynne, 76 Ark. 563 89 S.W. 1049. Ratification is a question of fact for a jury whenever the facts are in dispute or are such that reasonable men could draw different conclusions therefrom, and is a question of law only when the facts are undisputed and unequivocal. See Johnson v. Wynne, supra; 3 Am. Jur. 2d 564, 779, Agency, §§ 178, 359. See Restatement of the Law, Second Edition, Agency, р. 244, § 94, Comments a, b; p. 254, § 98, Comments с, d.

Even though it is ordinarily true that the principal must have knowledge and not mere notice of the facts and circumstances relating to the agent’s action before there can be a ratification of them, the principal is charged with such knowledge, when benefits accrue to or are retained by him, if from all the facts and circumstances in the case he knew or could have known the material facts. Lakeside Bridge and Steel Company v. Duvall, 179 Ark. 963, 19 S.W. 2d 1107.

If it is inferable from all the facts and circumstances that appellee accepted or retained the premiums on the questioned certificate with full knowledge of all the facts, or with knowledge of facts sufficient to put it on notice of the over-issue, a factual issue was presented. Alexandria Refining Company v. Harper, 173 Ark. 1180, 292 S.W. 135; Johnson v. Wynne, supra. If, from all the circumstances in evidence, appellee could have known that the agent had exceeded his authority and still retained the benefits accruing to it, a jury would be justified in inferring that appellee actually had sufficient knowledge upon which to base a finding of ratification. Lakeside Bridge & Steel Company v. Duvall, supra. See also, Johnson v. Wynne, supra.

We find a close parallel to this case in Neeley v. Wilmore, 131 Ark. 328, 198 S.W. 710, which puts to rest any doubt about the propriety of a summary judgment in this case. There the principal sought to recover from its plantation manager the amounts he paid its bookkeeper as salary in excess of the amount due. The payments were made by drafts signed by the manager which showed upon their face that they were for salary. Annual statements of the account on which the drafts were drawn were furnished to the principal. The manager testified that the books were open to inspection by the principal when he visited the farm and that the annual statements included the checks drawn in fayor of Harrison on his salary account. The circuit judge instructed the jury to the effect that continuing to pay the drafts if the principal knew, or by the exercise of reasonable care should have known, that the salary account was overdrawn constituted ratification. We said:

If any examination had been made by appellants they would have seen at the end of each year that Harrison had overdrawn his account. By continuing to pay drafts for his salary when they knew that his salary accounts were overdrawn, or were in possession of facts which would lead to such knowledge, they ratified the action of appellee. It was the duty of appellants to have examined the drafts showing overpayments of salary to Harrison, and they will be deemed to have been in possession of the knowledge which such an examination would have imparted to them. The continued payment of drafts drawn by appellee in favor of Harrison for his saiary after this, as above stated, constituted a ratification of appellee’s action. Hence the instruction was not erroneous.

The only excuse offered by appellee for not having full actual knowledge of the over-issue is that the certificates were filed by it under the name of the creditor holding the master policy, so that it had no means of determining whether multiple certificates on one life had been issued in excess of the limits of the master policy and of the agent’s authority. To put the matter most favorably to appellee, the determination whether it was charged with knowledge of the over-issue under these circumstances would pose a jury question.

Upon this view of the matter, the judgment must be reversed and the cause remanded for further proceedings consistent with this opinion.

       2A C.J.S. 646, Agency, § 63

       2A C.J.S. 649, Agency, § 64

       31 C.J.S. 377, Estoppel, § 60

       2A C.J.S. 638, Agency, § 61


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Jack L. LESSENBERRY v. Richard B. ADKISSON and James R. HOWARD, Judges
    73-95
    499 S.W. 2d 835
    Opinion delivered October 15, 1973

      Leon B. Catlett, for petitioner.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for respondents.

      Amicus- Curiae Arkansas Association of Criminal Defense Lawyers, by: Wm. R. Wilson Jr. and Floyd J. Lofton.

      Amicus Curiae Professional Ethics and Grievance Committee of Arkansas Bar Association, by: E. B. Dillon Jr.

   J. Fred Jones, Justice.

The regularly elected judge of the Pulaski County Circuit Court, Fourth Division, ordered Jack L. Lessenberry, a practicing attorney in Little Rock, to represent Bonnie Jo Tenpenny at her jury trial on a charge of delivering a controlled substance consisting of heroin in violation of the state law. Lessen-berry failed and refused to represent Mrs. Tenpenny at the trial presided over by a special judge. He was held in contempt by the special judge and a-fine of $1,000 was assessed against him. The matter is now before us on cer-tiorari.

The pertinent facts appear as follows: On March 5, 1973, Bonnie Jo Tenpenny was arrested and placed in jail charged with the sale of heroin. She was first arraigned -in municipal court where Mr. Lessenberry appeared with her and assisted in obtaining her release from custody on bond. Mrs. Tenpenny was arraigned in circuit court on March 19. Mr. Lessenberry appeared with her at the arraignment, entered her plea of not guilty, requested a jury trial and also a bill of particulars. The case was passed to April 18, 1973, for a jury trial and the oral motion for a bill of particulars was granted. On April 9, 1973, Attorney Lessenberry wrote a letter to the presiding judge, Honorable Richard B. Adkisson, with carbon copies to Jeff Pence, Esq., Hon. Byron Southern and Mrs. Bonnie Tenpenny, which states as follows:

“Dear Judge Adkisson:
I appeared with Mrs. Tenpenny for arraignment and at that time, you set the case for a jury trial for April 18, 1973.
I had represented Mrs. Tenpenny in Municipal Court. I told her, however, that I would not handle the matter in circuit court, especially in view of the trial date. I referred her to Jeff Pence and he has told me that Mrs. Tenpenny did not keep her appointment with him.
I wish to be relieved of this matter because I have so many obligations I am unable to satisfactorily discharge them all.
Please advise me what I must do to cause my name to be removed as Mrs. Tenpenny’s attorney.”

This letter was filed in the circuit clerk’s office on April 10, 1973, and on the same date the record shows the following notation:

“The Court doth hereby deny Jack L. Lessenberry’s request to be relieved as attorney of record in the above styled cause.”

On April 10, 1973, Mr. Lessenberry wrote another letter to Judge Adkisson with copies to lion. Byron Southern and Mrs. Bonnie Tenpenny as follows:

“I wrote you on April 9 advising you that I desired to be relieved from any obligation to represent Mrs. Tenpenny in the forthcoming trial of the above referenced case. In that letter, I requested your assistance and instructions as to what must be done to accomplish this. In that-letter, I set forth some of the reasons why I did not wish to represent Mrs. Tenpen-ny. There are other reasons which I did not think it appropriate or necessary to mention.
This morning I received a telephone call from your clerk notifying me that time was short and that I was expected to appear with Mrs. Tenpenny for trial of the case of April 18.
After due consideration of all of the circumstances, I will, of course, be present in court on April 18 as you directed, but I have decided that I will not represent Mrs. Tenpenny in this trial.
I have absolute respect for the court in general and in you particularly. In this regard, I will gladly serve the court in any professional and reasonable way, but I will not sacrifice what I believe to be overriding professional and personal standards.”

This letter was filed in the clerk’s office oh April 11, 1973, and on the same date the trial judge entered an order as follows:

“On this 11th day of April, 1973, is presented the matter of the motion of the attorney for the defendant to be relieved as counsel of record.
The Court finds that on March 19,- 1973, Mr. Jack L. Lessenberry appeared as attorney with and on behalf of the defendant at plea and arraignment at which time this case was set for a jury trial on April 18, 1973, at his request; and on April 10, 1973, Mr. Les-senberry filed a motion to be relieved as attorney of record in this case which motion was denied on the same day; and-on April 11, 1973, by letter delivered to this Court, which is filed and made a part of the record herein, stated his intentions not to represent the defendant although his motion to be relieved as counsel was overruled.
THEREFORE, the Court being well and sufficiently advised, Mr. Jack L. Lessenberry, is ordered to appear in this Court on April 18, 1973, and represent defendant on the trial of this case.”

This order was filed on the following day, April 12, 1973, and a bill of particulars was mailed to Attorney Lessen-berry on April 16. The record of the proceedings for April 18, 1973, recites as follows:

“This day comes the State of Arkansas by James Neal, Deputy Prosecuting Attorney, and comes the defendant in proper person and by her attorney, Jack L. Lessenberry, and the defendant having previously entered a plea of not guilty, the State announces ready for trial and Mr. Lessenberry announces that the defendant is without counsel and not ready for trial; whereupon the Court doth reset the case for a Jury Trial on July 12, 1973.”

The trial court then entered an order appointing the Public Defender to represent Mrs. Tenpenny and the Public Defender was advised by letter that he. or one of his deputies was that date appointed to represent the defendant in a jury trial to be held on July 12, 1973. The proceedings had on April 18, 1973, as above set out were held before the Honorable James R. Howard, Special Judge, the regular judge, Honorable Richard B. Ad-kisson, not being present. Following the April 18 proceedings as above set out, a hearing was conducted on the matter of contempt and from the evidence submitted, the court found as follows:

“[T]hat Jack L. Lessenberry appeared with Bonnie Jo Tenpenny on March 19, 1973, as her regular, privately employed attorney, but that on April 9, 1973, he wrote the court requesting that he be relieved and that on April 10, 1973, the court denied the motion and, thereafter, by its order of April 12, 1973, Jack L. Lessenberry was to appear and represent the defendant on the trial of the case. The court further finds that Jack L. Lessenberry is, as a consequence, in contempt of court and should be punished accordingly.”

Mr. Lessenberry testified that he had previously represented Mrs. Tenpenny on a misdemeanor charge in North Little Rock Municipal Court and that he was contacted by the defendant’s husband who requested him to represent her on the drug charge. He said he advised her husband that he would be unable to represent her because of other commitments and that he suggested that they employ other counsel. He sai>d that Mr. Tenpenny returned to his office requesting him to represent Mrs. Tenpenny and that he consented to represent her in municipal court for a fee of $250. He said he was only paid $100 but that he appeared in municipal court with the defendant and procured her release from custody on a reduced bond. He said that the first notice he had that Mrs. Tenpenny was being arraigned in circuit court was when Mrs. Tenpenny called him by phone and advised that she was then before Judge Adkisson on arraignment. He said that he had never agreed to represent Mrs. Ten-penny in the circuit court case and had not been advised of her arraignment. He said he was concerned, however, about the possibility that Mrs. Tenpenny might be under the erroneous impression that he was to represent her in circuit court, so he hurried over to circuit court where she was being arraigned. He said Mrs. Tenpenny’s case was immediately called after he arrived in court, and that he entered a plea of not guilty for. her. He said he was asked if the defendant wanted a jury trial and he advised the court that she did. He said that he then requested that the defendant be provided with a bill of particulars and a sample of the substance she was alleged to have sold for chemical analysis. He said that the case was then set for jury trial on April 18 and that following these proceedings Mrs. Tenpenny attempted to pay him a fee but he refused to accept it.

Mr. Lessenberry said he does not recall whether he advised Mrs. Tenpenny at the arraignment that he would not represent her, but that he did advise her to bring her husband and come to his office as soon as possible, and that Mr. and Mrs. Tenpenny did come to his office two or three days later. He said that in the meantime, he had discussed the case with the prosecuting attorney and reviewed the file in the prosecuting attorney’s office. He said that when Mr. and Mrs. Tenpenny returned to his office, he advised them of the essence of what the prosecutor’s file contained and told Mr. and Mrs. Tenpenny that he very definitely could not accept employment in the case.

Mr. Lessenberry said that the prosecuting attorney asked him to sign a waiver of request for a formal bill of particulars in order to obtain access to the prosecuting attorney’s file, but that he refused to sign the waiver. He said he told the prosecuting attorney that he could not represent Mrs. Tenpenny at the trial and did not want to do anything that would prejudice the rights of the attorney who might follow up his oral request for a bill of particulars. He said that when he advised the Ten-penny?. that he could not represent Mrs. Tenpenny, he assured them that he would assist them in getting a good, competent attorney, and that he would turn his entire file over to such attorney. He said he did call another attorney and made an appointment for the Tenpennys to talk with him, and that the attorney agreed to assist Mrs. Tenpenny. He said he does not remember whether he mentioned the trial date to the other attorney but that he did advise the other attorney that it was an urgent matter. He said he then directed the Tenpennys to the office of the other attorney, and they left his office going to the other attorney’s office. He said he heard nothing further concerning the matter until about April 6 when Mr. Byron Southern, as assistant to the prosecuting attorney, called and advised that he had prepared, and had available, a bill of particulars in the case. He said he advised Mr. Southern that he did not represent Mrs. Tenpenny, but that attorney Jeff Pence represented her. He said he knew that arrangements had been made for Mrs. Tenpenny to be represented by Pence and that she was supposed to pay Mr. Pence an agreed fee. He said he talked with Mr. Pence later on the afternoon of April 6 and that Mr. Pence advised him that Mrs. Tenpenny had not come to his office with his fee as she had agreed to do, and that he did not represent her. He said this all occurred on Friday, April 6, and on the following Monday, April 9, he wrote a letter to Judge Adkisson asking what he should do to be relieved as attorney of record in the case. He said that he did not hear directly from Judge Adkisson but that on the following day he received a telephone call from Judge Ad-kisson’s clerk, Gayle Peters, advising him that Judge Ad-kisson had received his letter but was denying his request, and that he would have to go to trial in the case on April 18. He said that upon receipt of this information, he wrote the letter dated April 10 to Judge Adkisson. He said he delivered the letter April 10 to Judge Adkisson in person and discussed the matter with him for about 80 minutes on that date. He said he offered to disclose in camera the full reasons why he could not ethically represent Mrs. Tenpenny at the trial, but that Judge Adkisson closed the discussion by leaving for another appointment.

Mr. Lessenberry testified that Mrs. Tenpenny and her husband were fully aware that he was not representing them; that they had offered to pay him a fee to do so and he refused to accept it. He testified that he honestly believed that he could not adequately represent Mrs. Ten-penny and at the contempt hearing he offered to dictate into the record at a later date the specific reasons why he thought he would be unable to ethically and adequately represent Mrs. Tenpenny. The special trial judge then inquired as to whether or not Mr. Lessenberry was aware of the order from Judge Adkisson requesting that he be in court that day to represent Mrs. Tenpenny and Mr. Les-senberry responded that he was.

Attorney Jack Holt, Jr. testified that Mr. Lessenberry called him on March 22 in regard to representing Mrs. Tenpenny. He said that Mrs. Tenpenny came to his office; that he introduced her to Jeff Pence, a young attorney in his office, and that Mr. Pence arranged for another attorney, Mr. Alexander, to assist Pence in representing Mrs. Tenpenny. He said that Pence advised him that he had discussed the matter with Mrs. Tenpenny and agreed on a fee of $500, which Mrs. Tenpenny had agreed to bring to the office. He said Mrs. Tenpenny subsequently advised that she was unable to obtain the money for the fee and that he then recommended to Mr. Pence that he check back with Mr. Lessenberry, or advise Mrs. Tenpenny to get in touch with the Public Defender.

Mr. Jeff Pence testified that he first met Mrs. Ten-penny on March 22 when she, together with her husband, came to his office upon referral first by Mr. Lessenberry and then by Mr. Holt. He said that he and attorney Hubert Alexander interviewed Mrs. Tenpenny on March 27 and they agreed on the amount of a fee. He said Mrs. Tenpenny advised them she did not have the money to pay their fee but that she probably could obtain it, so they set up another appointment for the following Friday at 4 p.m. when Mrs. Tenpenny said she would bring at least a part of the fee. He said that when Mrs. Tenpenny failed to keep that appointment, he so advised Mr. Les-senberry by telephone. He said he assumed that he did not represent Mrs. Tenpenny since she had not retained him to represent her. He said Mrs. Tenpenny later called and advised that she did not have any money and that he referred her to the public defender’s office.

Mr. John Earl, assistant prosecuting attorney, testified that as a general practice in the prosecuting attorney’s office, when a bill of particulars is requested by a defendant, the entire prosecutor’s file is turned over to the defense attorney for copying in lieu of preparing a formal bill of particulars but in doing so, the defense attorney is required to sign a waiver .of demand for a bill of particulars. He said he discussed such waiver with Mr. Les-senberry but that after he and Mr. Lessenberry went over the file, Lessenberry refused to sign the waiver form. He then testified as follows:

“He [Lessenberry] was uncertain at that time as to whether he would take the case, and he didn’t want to waive any rights of a later attorney that might take the case.”

Mrs. Tenpenny testified at the contempt hearing. She said that her husband paid Mr. Lessenberry $100 to represent her in municipal court and that she never did pay him anything else except the $100. She said she received a copy of the letter dated April 9 from Mr. Lessen-berry to Judge Adkisson, and that upon receipt of the copy of that letter she called the public defender’s office and was advised that the Public Defender could not represent her unless the Judge said he could. She said that prior to that date Mr. Lessenberry had told her he was not going to represent her and referred her to Mr. Pence. She said she agreed to pay Mr. Pence a fee but when she was unable to get the money, she so advised Mr. Pence and he suggested she call the Public Defender. She said that after talking with the Public Defender, as above set out, she talked with Judge Adkisson by phone and he said for her and Mr. Lessenberry to be in court on the 18th.

At the conclusion of the above testimony at the contempt hearing, Special Judge Howard made the following findings and observations in part as follows:

“I don’t know why Judge Adkisson insisted on this situation that developed here, but I’m looking at an order here that directs him to appear and try this case and based on this letter and his statement, he’s in violation of the order. And I’m also looking at an oath that I took this morning that said, ‘I’ll faithfully discharge the duties of the office.’ I tend to agree with Jack Holt and Jack Lessenberry about their attitudes toward representing certain people under certain circumstances. I’ve been in the same predicament. * * * I just don’t see where I can do anything, as much as I hate to, but find you in violation of this order and ira contempt of court. I’ll say this. You’ve got reasons, as Mr. Catlett observed, they’re a little obscure at this point and it probably should remain that way because of the defendant’s rights. He shouldn’t be testifying here in public about something he might know that would be prejudicial to the defendant’s case in the future. So, what I’ll, the best way I know out of it is to find him in contempt, enter a fine without prejudice to his right to petition the judge that made this order. It’s not my order. But without prejudicing him petitioning Judge Adkis-son for a rehearing based upon any facts you’d like to dictate in private into, this record. And further I would direct the clerk not to order any execution on this judgment until such time as you petition this court. And if you don’t get any relief there, then I hope the Supreme Court will grant a Writ of Certio-rari for review. But I know of no other authority other than but to do that. That’ll be a Thousand Dollar finé.”

The statement referred to was sealed in an envelope marked as exhibit S to Lessenberry’s testimony and was made a part of the record. The envelope hád not been opened when the record was filed in this court. The substance of the statement was to the effect that Mr. Lessen-berry had never accepted representation of anyone he believed to be engaged in the sale or use of “hard” drugs. He said he advised Mrs. Tenpenny of the probable evidence that would be presented against her and that while she denied to him that she had made the specific' sale to the police officer involved in the particular case, he concluded from his interviews with her that it would be necessary to prepare a completely fictitious defense in order to represent her as she desired to be represented. He said he honestly believed he could not provide her with effective representation, but that he did not relate to her the specific reasons why he could not accept employment from her,

The record in this case presents an unfortunate series of misunderstandings that simply should not arise in a court of law. A client, of course, who has contracted for the services of an attorney, may discharge his attorney with or without cause (Gentry v. Richardson, 228 Ark. 677, 309 S.W. 2d 721) and it goes without saying that an attorney has the right to withdraw from his contract with a client when he does so with the client’s consent and approval and when the rights of others, or the administration of justice, are not affected by such action. Both sides in the case at bar cited the Florida case of Fisher v. State, 248 So. 2d 479, which was a civil case in which an attorney attempted to withdraw as counsel during the course of litigation and the trial court required him to continue to represent his clients. The Florida Supreme Court held that it was beyond the power of the trial court to require the attorney to continue to represent the clients in that particular case; and the Supreme Court did hold in essence, that a trial court has the power to enforce the orderly conduct of the business of the court and has inherent power to require attorneys who appear in cases before the court, to conduct themselves in such manner, and follow such procedures, that the attorneys’ actions do not interfere with, or unduly delay, the handling of the cases. In Fisher the Supreme Court said:

“This power, however, derives from the responsibility to effectively conduct the business of the Court. It does not mean that the requirement of consent by the Court to such withdrawal includes the power to compel an attorney to continue in the representation of a party when he complies with rules for withdrawing or gives due notice to his client of his intention to withdraw, unless unusual circumstances exist which would interfere with the orderly processes of the Court. ...”

Most of the cases dealing with the subject are based on attempted withdrawal of an attorney either without the consent of the client or at such time that a withdrawal interferes with the orderly conduct of court business. In the Colorado case of Riley v. District Court In & For Second Judicial Dist., 507 P. 2d 464, the court stated the general rule as follows:

“As a general statement, an attorney who undertakes to conduct an action impliedly stipulates that he will prosecute it to a conclusion. He is not at liberty to abandon the suit without reasonable cause. Furthermore, an indigent defendant cannot dismiss appointed counsel without permission of the court. Likewise, counsel for an indigent defendant cannot withdraw without permission. Although never explicitly stated by this court, it seems to be the well-stated rule of law that motions for withdrawal of counsel are addressed to the discretion of the court and will not be reversed unless clear error or abuse is shown. We agree with those statements contained in People v. Wolff, 19 Ill. 2d 318, 167 N.E. 2d 197, wherein it was said:
* * # A motion by an attorney for leave to withdraw for any reason is addressed to the sound discretion of the court and, like all motions, it may or may not be meritorious. For that reason, a burden rests with the moving party to prove to the court’s satisfaction the legitimacy of the request, and when the petitioner either fails or refuses to do so, the court may properly deny the motion. * * * ’ ”

See also Foley v. Peckham, 256 So. 2d 65; Singleton v. Foreman, 435 F. 2d 962; Phoenix Mut. L. Ins. Co. v. Radcliffe on the Del., Inc., 266 A. 2d 698.

It would appear from the record before us, that Attorney Lessenberry as well as the defendant Mrs. Ten-penny never considered Lessenberry as having been employed to represent her. It would also appear, however, that at her arraignment in circuit court the trial judge had ample reason to believe that Mr. Lessenberry had been employed to represent the defendant, and that he was in the performance of his duty under such employment in entering her plea of not guilty and requesting a jury trial and a bill of particulars. This arraignment was on March 19 and on that date the case was set for jury trial on April 18. It appears that after Mr. Lessenberry ascertained the evidence the state proposed to present against the defendant, and after conferring further with her, he concluded that he could not properly, conscientiously and adequately represent Mrs. Tenpenny and he so advised her on or about March 22. It appears from the record that Mr. Lessenberry reasonably believed he had fulfilled his obligation to Mrs. Tenpenny as a practicing attorney by helping her procure other counsel who would represent her at the trial.

N i\ Lorn the full record'before us, that by Map.'- t 44 Mr. Lessenberry had learned from the defendant my Ur if. he was unwilling to reveal to the trial judge as reasons he could not properly represent the defendant in view of the possibility that the defendant, through other counsel, might still waive a jury trial and be tried by the judge sitting as a jury. If Mr. Lessenberry was convinced of the defendant’s guilt to the extent he could not properly represent her, and if she was insisting that he prepare a fictitious defense in her behalf, he of course was correct in requesting that he be relieved as attorney of record; and, perhaps Judge Adkisson was hasty in summarily refusing to honor Mr. Lessenberry’s request even as late as April 9 without discussing the matter with Lessenberry.

It must be remembered in this case that Judge Ad-kisson did not appoint Mr. Lessenberry to represent the defendant, but simply ordered Lessenberry to appear in court and represent the defendant on April 18. Even though Mr. Lessenberry’s letter of April 9 was some twenty days after he appeared as attorney for Mrs. Tenpenny at plea and arraignment, it was also nine days prior to the trial date and there is no evidence in the record before us that his withdrawal on that date would have interfered with the orderly conduct of the court’s business.

The Texas case of Ex Parte Mays, 212 S.W. 2d 164, was a case in many respects much like the case before us. In that case an attorney was appointed to represent the accused as an indigent person. The trial judge had been unable to get in touch with the attorney prior to the appointment and the attorney asked to be relieved from the appointment because he had participated in the investigation of the case and his familiarity with the facts convinced him of the defendant’s guilt and made it impossible for him to properly and conscientiously represent the defendant. The trial court refused to relieve the attorney and following a contempt hearing a fine of $100 was assessed against him. The Court of Criminal Appeals on certiorari, held that in order to hold the attorney guilty of contempt, he must have refused to do the particular act commanded by the court and which ought to have been done, and in that case the court said:

“In the present matter, as the record now stands, we do not think the trial court had authority to cause relator to do a thing which was contrary to good conscience and for which no man ought to be punished for failing to do.”

In the absence of evidence pertaining to interference with the orderly conduct of the court’s business, other than the mere fact the case was set for jury trial on April 18, we conclude that the trial court should not have summarily refused Mr. Lessenberry’s request to be relieved as attorney of record without first ascertaining the status of his supposed employment, or the full reasons for his refusal to accept employment to represent the defendant. The judgment of the special trial judge holding Lessen-berry in contempt is therefore reversed, and the cause dismissed.

Reversed and judgment quashed.

Fogleman, J., not participating.


author: J. Fred Jonés, Justice.

text:
    Billy W. BOWEN, by his father and next friend, Robert L. BOWEN v. Richard Clinton SAXTON and Mary CARPENTER
    73-104
    499 S.W. 2d 867
    Opinion delivered October 15, 1973

      Mike Wilson and Kenneth C. Coffelt, for appellants.

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellees.
   J. Fred Jonés, Justice.

Billy W. Bowen, a 12 year old minor, by his father and next friend Robert L. Bowen, brings this appeal from a judgment of the Pulaski County Circuit Court entered on a jury verdict for personal injury damages in the amount of $5,100. Young Bowen assigns five points for reversal as follows:

“The verdict of the jury and judgment of the Court is contrary to both the law and the evidence.
The verdict is a nullity, and legal judgment could not, and was not, entered thereon.
The trial court erred in accepting the verdict and refusing to order the jury.to further deliberate.
The case should be reversed, because the jury failed to return a verdict for Robert L. Bowen for the Doctors, Hospital and Medical bills expended for Billy Bowen.
It is clear tire jury' intended for the plaintiffs to recover more money than the $3100.00, and it was without authority to compensate in the form of attorney’s fees, as the jury attempted to do, and the error could not be corrected by the trial court in the manner in which it attempted to do.”

Young Bowen sustained rather severe injuries when his bicycle collided with an automobile owned by Miss Carpenter and being driven from a parking lot by Mr. Saxton. Young Bowen enumerated his injuries in his complaint and by amendment alleged that he had incurred medical and surgical expenses in the amount of $1,910.39 and would incur further medical expenses in the amount of approximately $2,250. The complaint prayed total damages in the amount of $50,000. The answer admitted that an accident occurred on the date involved but alleged that any injuries and resulting damages suffered by young Bowen were occasioned, or contributed to, by his own negligence. The case was submitted to the jury on general verdict forms. The jury found for young Bowen and used the form originally prepared as follows:

“We, the jury, find for the plaintiffs and assess their damages as follows:
Robert Bowen $_
Billy Bowen $_”

This form as returned by the jury reads as follows:

“We, the jury, find for the plaintiffs and assess their damages as follows:
Robert Bowen $_
Billy Bowen $3100.00, plus costs and lawyer’s fees.”

The trial court entered judgment on the verdict for young Bowen in the amount of $3,100 and court costs.

It was stipulated by the parties that after the foreman of the jury returned the above verdict and before the jury was discharged, the plaintiff’s attorney objected to the verdict and requested that the jury be instructed by the court to retire and reconsider its verdict; that the objection and request were made in chambers outside the hearing of the jury and were overruled by the court, after which the jury was discharged.

The parties agree that attorney’s fees were not prayed for in the complaint or recoverable in a tort action of this nature. The appellant argues, however, that the verdict for attorney’s fees was fatal to a valid verdict upon which judgment could be rendered and the trial court erred in returning judgment for the $3,100 plus court costs with the elimination of the attorney’s fee provision of the verdict. The appellees agree that the attorney’s fee part of the verdict was a nullity but argue that the trial court correctly eliminated that item as a mere surplusage, and was correct in entering judgment for the $3,100 damages plus court costs. We agree with the appellees.

The appellant argues that it was clearly the jury’s intention to award attorney’s fees in addition to the damages young Bowen had sustained and we agree, but the simple fact is that an attorney’s fee is not an element of damage in a case of this nature. The jury was clearly instructed as to what did constitute the elements of damage in this case and it had no authority to add an attorney’s fee to the damages so found. The appellant’s request for reconsideration by the jury would have, in effect, required the jury to return a verdict increasing the amount of damages they had found in sufficient amount to cover a reasonable attorney’s fee. We are of the opinion, and so hold, that the trial court was correct in treating the attorney’s fee portion of the verdict as surplusage and entering judgment for the amount of damages found by the jury.

The appellant argues that the case should be reversed because the jury failed to return a verdict in favor of Robert L. Bowen, the father of Billy, for the doctors, hospital and medical bills expended for young Billy. The answer to that contention lies in the fact that the father did not sue as a separate party plaintiff for the amount he had expended in medical expenses for his son. He alleged that the plaintiff (Billy W. Bowen) had suffered serious permanent and disfiguring injuries to his person and had incurred medical and surgical expenses in a definite amount of $1,910.39, and would incur further medical expenses in the approximate amount of $2,250.

The court gave the plaintiff’s requested instruction No. 17, AMI 2213, which reads in part as follows:

“If you decide for Billy Bowen on the question of liability against any party he is suing, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages which you find were proximately caused by the negligence of Mr. Sax-ton or Miss Carpenter. . . .
B. The reasonable expense of any necessary medical care and treatment received and the present value of such expense reasonably certain to be required in the future.”

Under this, plaintiff’s instruction No. 17, the jury was simply told to find the amount of damages sustained by young Bowen, and all the elements of damages they were to consider were clearly spelled out in the instruction. We have no way of determining, and it is not within our province or that of the trial court to attempt to determine, how the jury arrived at its verdict of $3,100. The explanation why the verdict was not in a greater amount might well lie in defendant’s instruction No 4, AMI 2102, given to the jury without objection. This instruction reads in part as follows:

“If you should find that the occurrence was proxi-mateW caused by negligence of both plaintiff and defendants, then you must compare the percentages of their negligence.
If the negligence of plaintiffs is of less degree than the negligence of defendants, then plaintiffs are entitled to recover any damages which you may find they have sustained as a result of the occurrence after you have reduced them in proportion to the degree of their own negligence..
On (he other hand, if defendants were not negligent or if the negligence of plaintiffs is equal to or greater in degree than the negligence of defendants, then plaintiffs are not entitled to recover any damages.”

As to the evidence of comparative negligence considered by the jury, we quote briefly from the appellant’s abstract. Young Bowen testified:

“I was on my righthand side of the road as close to the cars as I could get when he popped out in front of me and we collided, and I don’t know anything else after that. I was riding my bike in the Jacksonville Shopping Center. I do not recall seeing Mr. Saxton’s car.”

One of the defendants, Mary Carpenter, testified as abstracted by the appellant:

“I knew there was going to be a collision as soon as I saw the bike. Right when I saw the bike it happened. The bike hit the car. He was not looking at me. He had his head down. He was over close to the rear of the parked cars.”

Mr. Saxton, the driver of the automobile, testified, as abstracted by the appellant:

“I was heading east and was going probably 5 miles an hour, and I started to make the lefthand turn and I looked up and I saw the line of cars and I saw a young boy on a bike pedaling, leaning forward with his head down. He looked up like this, (indicating) and then hit the car.”

The judgment is affirmed.


author: Frank Holt Justice.

text:
    H. Davey WYATT, et al v. Paul G. MILLER
    73-80
    500 S.W. 2d 590
    Opinion delivered October 15, 1973
    [Rehearing denied November 19, 1973.]

      Hodges, Hodges & Hodges, for appellants.

      Murphy, Arnold & Blair by: H. David Blair, for appellee.
   Frank Holt Justice.

The appellee instituted this action seeking specific performance of a contract for conveyance of land. Incidental damages were also sought. In response the appellants asserted primarily that they were bona fide purchasers and raised other subsidiary issues. The chancellor found the issues for the appellee and from that decree comes this appeal. We first consider appellants’ contention for reversal that the chancellor erred in holding appellants had actual notice of appellee’s contract to purchase.

On May 19, 1971, after extended negotiations, appel-lee contracted to purchase 32 acres of land from appellants Ethyl Jennings and Vaden Wammack for the sum of $27,750. The appellee gave his personal check for $500 as earnest money and on that date the husband of appellant Jennings cashed it. Appellants Wyatt and Lamb, brothers-in-law, had also negotiated with the appellant owners to purchase their property. On May 20, 1971, early the morning following appellee’s purchase contract, appellant Wyatt appeared at the Jennings’ premises and renewed negotiatons for purchasing the property for $27,500. He was advised a “better offer” was made. During that day a partnership was agreed upon between appellants Wyatt and Lamb. That afternoon Wyatt returned with a notary and secured a warranty deed for the sum of $30,000 for the property from the appellants Jennings and Wammack without being advised of the previous contract with the appellee.

Appellant Lamb testified that his brother-in-law Wyatt, came to the store on May 20 (the day following appellee’s purchase contract) and told him “[0]ur offer [$27,500] has been upped on the Jennings property.” “If we are going to buy it, we are going to have to . . . be near $30,000. . .” According to appellant Lamb, they were aware that “a lot of people were dealing on it” and he “knew things were getting pretty hot. . He testified that he went to the Jennings’ premises on the morning following appellee’s purchase contract. Appellants Wyatt and Lamb testified that they did not know about the appellee’s contract and that the owners did not apprise them about it. Mrs. Wammack did not testify. Her sister, Mrs. Jennings, testified that they did not acquaint Wyatt and Lamb about signing appellee’s purchase contract the previous day. Appellants Wyatt and Lamb acknowledge they learned of the purchase contract before filing their deed.

The night of May 20 (date of appellant purchasers’ deed) the appellee took his contract of purchase to the home of the county recorder who accepted and recorded the instrument the next day or May 21. Appellee’s contract was improperly acknowledged and, therefore, defective for recordation purposes. Becaue of “town talk” appellants had someone inspect the county records on May 22 and learned of the existence of appellee’s purchase contract. Appellants Wyatt and Lamb’s deed was not recorded until May 24, 1971.

In consideration for the warranty deed issued to appellant purchasers, Wyatt tendered the following: a check in the amount of $9,500 payable to Ethyl Jennings dated May 20, 1971; a check in the amount of $10,000 by an agent of Lamb’s made payable to Wam-mack and dated May 20, 1971; and a $10,500 negotiable promissory note dated May 20, 1971, by both appellants made payable to Jennings and secured by a mortgage. At the time the checks were tendered, there were insufficient funds in both bank accounts to cover the checks. However, appellants made sufficient deposits in their accounts so that the checks were paid when presented a week later. The promissory note was not negotiated and was sequestered at trial.

Ark. Stat. Ann. § 49-211 (Repl. 1971) requires that an instrument in writing must be properly acknowledged for recordation purposes. It is undisputed that appellee’s contract was defective in this respect. Therefore, as the chancellor correcdy found, appellee’s purchase contract did not constitute constructive notice to the appellant purchasers. Prince v. Alford, 173 Ark. 633, 293 S.W. 36 (1927). However, in the case at bar, the appellant purchasers had actual knowledge of the recordation of appellee’s purchase contract within two days following its execution and two days before they filed their own deed. We have held that knowledge of the recordation of a defective instrument is a factual matter which can be considered in determining whether a subsequent purchaser had actual notice. Prince v. Alford, supra.

Our cases are uniform in holding that if the second purchaser had actual knowledge of a prior deed or contract at the time of purchase, the junior conveyee cannot establish himself as a bona fide purchaser. Collins v. Heitman, 225 Ark. 666, 284 S.W. 2d 628 (1955), Henderson v. Ozan Lumber Co., 216 Ark. 39, 224 S.W. 2d 30 (1949), Millman Lumber Co. v. Bryant, 213 Ark. 277, 209 S.W. 2d 878 (1948), and Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S.W. 860 (1925).

In Woods v. Wright, 254 Ark. 297, 493 S.W. 2d 129 (1973), we held that the second purchaser will be deemed to have actual notice if the senior conveyee shows “by a preponderance of the evidence that [the second purchaser] had notice of such facts and circumstances as would put a man of ordinary intelligence and prudence on inquiry which, if diligently pursued, would lead to knowledge of his rights. #***Whatever is notice enough to excite attention, put a party on guard and call for inquiry is notice of everything to which the inquiry might lead, and whenever one has sufficient information to lead him to a fact he shall be deemed conversant with it.” Also see Kendall v. J. I. Porter Lumber Co., 69 Ark. 442, 64 S. W. 220 (1901). Proof of sufficient notice to place the junior conveyee on inquiry may be established by circumstantial evidence. Woods v. Wright, supra.

In the case at bar, when we consider the direct and circumstantial evidence, together with the appellants’ knowledge of the recordation of appellee’s defective purchase contract, we hold that the chancellor correctly found the appellants had actual notice and, therefore, are not bona fide purchasers. Further, the chancellor correctly ordered appellee to reimburse the appellant Lamb for his $10,000 check which was paid to appellants Jennings and Wammack, the owners of the land; appellee pay appellant Wyatt and his wife the sum of $9,500 for reimbursement of their personal check which was paid to appellant landowners; $7,500 or the balance of appellee’s $27,750 purchase agreement be paid to appellant Jennings, less the $500 held in the court registery which was ordered returned to appellant Jennings; appellant purchasers’ $10,500 promissory note be cancelled; appellants Wyatt and Lamb execute a deed conveying the 32 acres to appellee and appellee have judgment against appellant Wyatt for damages resulting from cutting and removing hay from the 32 acres.

As to the latter item about damages, appellant Wyatt contends that it was error for the chancellor to hold him liable for $217.50 as a result of cutting and removing hay from the 32 acres. Appellant Wyatt is liable for anything of value which he removed from the property. Garner v. Horne, 219 Ark. 762, 245 S.W. 2d 229 (1952). In the case at bar, we cannot say that the chancellor’s finding is against the preponderance of the evidence that appellant Wyatt is liable by acquiescing in the cutting and removing of the hay from the property by his father.

We have considered and find no merit in appellants’ other subsidiary contentions. Since we hold that the appellant purchasers had actual notice of appellee’s contract to purchase the land, we deem, it unnecessary to discuss other related issues appellants assert for ie-versal.

Affirmed.

Byrd, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Davis DUTY v. CITY of ROGERS, Arkansas and BENTON COUNTY, Arkansas
    73-87
    500 S.W. 2d 347
    Opinion delivered October 22, 1973
    Appellant, Pro Se.

      J. Wesley Sampler, for appellees.
   Carleton Harris, Chief Justice.

On January 1, 1971, appellant, Davis Duty, assumed his duties as Municipal Judge of the City of Rogers, appellee herein. At that time, the salary for the office was the legally authorized maximum of $4,800 per year. On March 30, 1971, Act 456 of the 1971 General Assembly (Ark. Stat. Ann. § 22-704.1 [Supp. 1971]) became law. The act authorized a maximum salary for various municipal judges in the state. Pertinent portions of this act provide as follows:

“The annual salary of the Judge of the Municipal Court situated within the city or town hereinafter designated shall be retroactive to and from and after January 1, 1971, as follows:”

Here follows a long list of cities, the county in which said city is located, and the salary authorized for the various municipal judges. The maximum salary provided for Rogers is $7,500 per year. However, there is a subsequent paragraph as follows:

“Provided, that the salaries of the judges of the municipal courts of Bentonville, Rogers and Siloam Springs, Benton County, as now established by law may be increased in such amounts not to exceed the maximum salaries authorized herein, only as approved by the Quorum Court of the County and the governing body of the respective cities.”

On November 2, 1971, the City of Rogers enacted Ordinance No. 682 which increased the municipal judge’s salary from $4,800 per year to $6,000 per annum, retroactive to January 1, 1971, ánd also established a salary of $7,500 per annum, to become effective on January 1, 1972. Duty, was paid the $1,200 retroactive pay (difference between $4,800 and $6,000) for the year 1971; from January 1, 1972 through June 30, 1972, at which time appellant resigned from the office, he was paid at the rate of $7,500 per year, or the amount of $3,750 for the six months served. Appellant instituted suit against the city and county for $1,500 (the difference between the $6,000. paid in 1971 and the $7,500 which he claimed to be due under the provisions of Legislative Act 456). Appellees demurred, said demurrers being sustained, and appellant declining to plead further, the complaint was dismissed with prejudice. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the court erred as a matter of law in finding that the salary increase (to $7,500) granted to appellant was not automatically retoractive to Jánuary 1, 1971. We proceed to discuss this contention.

Appellant, of course, relies upon the first sentence of the legislative act, quoted in this opinion, providing that the salary granted shall be retroactive, and he points out that the city ordinance set the salary at $7,500 (though this amount was not the original increase but only became effective in the year 1972). Appellant recognizes that the proviso, with reference to the authorization of $7,500, also herein quoted, appears to modify the sentence relied upon, and he spends some time in his breif quoting grammatical authorities, citing Fernald, English Grammar Simplified, (Rev. Ed. 1963). The citation deals with restrictive and non-res trie tive clauses, and attention is called to the fact drat there is only one comma in the disputed portion of the provision, such comma being located before the word “only”. We need not discuss this argument for we have held many times that the primary rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. Koser v. Oliver, 186 Ark. 567, 54 S.W. 2d 411. We have also held that the true meaning of the General Assembly must be ascertained from a consideration of the whole act. Koser v. Oliver, supra; Bailey v. Abington, 201 Ark. 1072, 148 S.W. 2d 176; and Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279. Still further, in Koser, we pointed out that when the intention of the General Assembly is manifested. “The court will not permit punctuation to control, but will disregard punctuation or will repunctuate, if necessary, to give effect to what otherwise appears to be the proper and true meaning of the statutes. ##*Whenever such intention can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seems contradictory to the letter of the statute.” In Bailey, we said:

“It often happens that the true intention of the lawmaking body, though obvious, is not expressed by the language employed in a statute when that language is given its literal meaning. In such cases, the carrying out of the legislative intention, which, as we have seen, is the prime and sole object of all rules of construction, can only be accomplished by departure from the literal interpretation of the language employed. Hence, the courts are not always confined to the literal meaning of a statute; the real purpose and intent of the Legislature will prevail over the literal import of the words. When the intendon of a statute is plainly discernible from its provisions that intention is as obligatory as the letter of the statute, and will even prevail over the strict letter. The reason of the law, as indicated by its general terms, should prevail over its letter, when the plain purpose of the act will be defeated by strict adherence to its verbiage. It is frequently the case that, in order to harmonize conflicting provisions and to effectuate the intention and purpose of the lawmaking power, courts must either restrict or enlarge the ordinary meaning of words. The legislative intention, as collected from an examination of the whole as well as the separate parts of a statute, will prevail over the literal import of particular terms, and will control the strict letter of the statute, where an adherence to such strict letter would lead to injustice, to absurdity, or contradictory provisions.”

Appellant’s argument is simply that the General Assembly set his salary at $7,500 per year and that Act 456 declared such salary to be retroactive to and from January 1, 1971; that when the salary was increased to that figure, he became entitled to that amount. Appellant agrees that there could be no argument if neither the city nor quorum court acted at all, leaving the salary at $4,800. Obviously, there would be no argument if the city and county quorum court had approved the salary increase to $6,000, and left it at that figure. We cannot agree with appellant for we think that the language of the act, beginning with the word “Provided”, makes it very evident that the Legislature only intended for the Municipal Judge of Rogers to receive any amount up to $7,500, the amount being determined by the city and quorum court of the county. There could be no other reason for the insertion of that clause. We consider that it is clearly shown that the General Assembly intended for a municipal judge to receive whatever amount, up to $7,500, the city and county desired and could afford to pay. This is certainly the logical view to take. Perhaps the revenues of the city would uiiiopov;! salary mcceace of $1,200 for 1971, but not :./inry ?:«. ui $2,700 for that year; however, anticipated revcimcs would support the $7,500 salary beginning in January, 1972. The ur.soundness of appellaiT:: contention can be demonstrated by a hypothetical illustration. Let us say that the General- Assembly passes no further salary act for the next several years; that the City of Rogers and the County were not financially able to increase the salary to $7,500 until January 1, 1976. Under appellant’s view, he could then contend that he was due retroactive pay from January 1, 1971 until January 1, 1976, a total of five years — and, if appellant’s present contention is sound (that he is due retroactive pay of one year), there is no reason why the hypothetical contention would not be sound.

Affirmed.

      It is also asserted that there being no genuine issues of material fact to be decided, the court erred as a matter of law in denying appellant’s motion for summary judgment. Under the view taken herein, this point becomes moot, and for that matter, the denial of a motion for summary judgment is not an appealable order. See Widmer v. Ft. Smith Vehicle & Machinery Corporation, 244 Ark. 971, 429 S.W. 2d 63.

      It might even be that a larger salary increase could have caused the city or county to run afoul of provisions of Amendment 10 to the State Constitution.


text:
    Charlie BROOKS v. Katie McGILL
    73-93
    500 S.W. 2d 343
    Opinion delivered October 22, 1973

      Odell C. Carter, for appellant.

      George Howard Jr., for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal of this case. See Brooks v. McGill, 250 Ark. 534, 465 S.W.2d 902, where we reversed the chancellor and remanded the case for transfer to the Circuit Court of Lincoln County, Arkansas. On the second trial, the jury returned a verdict for Katie McGill, appellee herein, and from the judgment entered in accord with the verdict, appellant Charlie Brooks brings this appeal. For reversal, it is first asserted that the evidence does not support the verdict of the jury, and second that the court erred in striking certain testimony of the appellant, and in commenting upon the evidence. We proceed to a discussion of these points.

The litigation relates to the ownership of Lot 9 of Paul’s Addition to the Town of Grady. In September, 1946, Sam Bass and wife conveyed to Ira McGill and Katie McGill, land described as Lot 9, Block 3, of Paul’s Addition, and in November, 1951, Lem Mosley and wife gave a warranty deed to Charlie Brooks, conveying land described as Lots 5 and 8 in Block 3 of Paul’s Addition. Subsequent deeds from the State and Southeast Arkansas Levee District were obtained by Mrs. McGill to Lot 12 of the same block and addition to the Town of Grady, and her present residence is located on this lot. This suit was instituted by Mrs. McGill wherein it was alleged that Brooks had entered upon her property without her consent, had used the property for his own purposes, and interfered with her enjoyment and use of it. Brooks answered, first alleging that the action was purely an ejectment action (which we sustained in reversing the case), and then asserting that he had been in possession of the land at issue for twenty years; that he had planted a garden thereon and used same for a number of years, and was the owner of the land. The testimony was what is commonly referred to as a “swearing match” between the witnesses on each side. In addition to appellee, seven witnesses testified on her behalf, and, in addition to Brooks, six witnesses testified on his behalf. Of course, this being a case at law, we are only interested in whether there was substantial evidence to support the verdict. Appellee testified that at the time Lot 9 was purchased, a dwelling house was located thereon, and that she and her husband moved into the house and lived there for approximately three years, when it was torn down and rebuilt on an adjacent lot (Lot 12); that at the time Lot 9 was acquired, it was surrounded, by a wire fence and that this fence had existed up until the time Brooks started removing it in 1968. Appellee further stated that she had told appellant not to interfere with the fence and lot. The witness said that while Brooks was living over at his mother’s house, and thought to be separated from his wife, she had permitted Mrs. Brooks, with whom she was friendly, to cultivate a garden on Lot 9. Other witnesses corroborated the location of the wire fence and other [acts relating to appellee’s ownership, Charlie Boulware stating that he personally saw Brooks remove the fence; he also testified that he heard Mrs. McGill tell appellant to move his lumber off Lot 9 sometime during 1968. Appellant’s case was based on the alleged fact that Brooks had lived on the property since 1946, and had always held himself out as the owner of Lot 9. His witnesses corroborated his claim of possession, his stepdaughter testifying that her mother had rented the land from Lem Mosely, and that Brooks had lived there since 1948. As earlier stated, the testimony was very much in conflict, but, in such event, as we have said on numerous occasions, the matter of which witnesses are correctly stating the facts is solely a question for the jury to determine, and if there is any substantial evidence to support the jury finding, we will not disturb such finding on appeal, even if we might think the jury reached the wrong conclusion. Here, under the version given by appellee and witnesses, there was substantial evidence to support the jury verdict.

Appellant asserts that both appellee and Boulware committed perjury, and he cites instances of alleged conflicts in the evidence given by these parties in the chancery case, heretofore mentioned, and the circuit court case, here under consideradon. Apparently, it is his contention that we should consider these purported conflicts and reverse the case on that basis. No such procedure is followed by this court, nor is any authority cited to that effect. In fact, we have held to the contrary. See Magnolia Petroleum Company v. Saunders, 193 Ark. 1080, 104 S.W.2d 1062. The same contention, i.e., that a witness testified in the second trial contrary to testimony in the first trial was there raised, but we said:

“It is settled policy of law that witnesses are not bound in a second trial by testimony given in a former proceeding, and that prior statements or admissions may, in a subsequent action, be used only for the purpose of testing credibility.

The court also pointed out that when testimony of witnesses is out of harmony and the explanations they make are contradictory, the controversy is properly referable to the jury. Of course, there was nothing to prevent, and appellant probably did, argue any inconsistencies in the testimony of these witnesses to the jury.

Nor do we agree with appellant in his second contention. The record reveals the following during direct examination of Charlie Brooks.

“Q. Charlie, now your deed calls for Lot 5 and 8 in Block 3 of Paul’s Addition to the Town of Grady, Arkansas.
A. Yes sir.
Q. Now, did you look at this land before you bought it?
A. Yes sir, I looked at it.
Q. And what were the natural boundaries of the property that you bought?
A. Well, the boundaries of the property that I bought was ...”

Here, counsel for appellee objected on the basis that the answer given would be hearsay, “What somebody said”, unless it was shown that Mrs. McGill was present. Further:

“MR. CARTER: Your Honor, this is not hearsay, he is telling what he bought and the deed describes the piece of property. It doesn’t show anything except just the lot numbers, how he viewed the property, he bought the property after he saw it, I think he is entided to testify what he bought.
MR. HOWARD: May I say this? The deed speaks for itself, Lot 5 and 8. This lawsuit is about Lot 9. Now what somebody told him out here in the absence of Mrs. McGill would be hearsay.
MR. CARTER: Your Honor, it is not a question of what somebody told him, it is a question of what he bought.
THE COURT: Well, I am going to sustain the objection. This apparendy is to vary the terms of a written instrument. I would think, if he knows the boundaries there is a variance of what the actual description is, is that right?
MR. CARTER: Yes, sir. There is a variance of what the actual description is according to the plat and I think he is endded to testify to what he was buying.
THE COURT: I believe an engineer could testify as to what the boundaries are.
MR. CARTER: Your Honor, I am not asking him to testify what the boundaries are, I am asking him to testify as to the physical- property which he bought.
THE COURT: Your question was for him to describe the boundaries of the property.
MR. CARTER: Okay, well, I will rephrase my question.
Q. When you bought the property what, how much land were you buying?
MR. HOWARD: Now, if Your Honor please, I would object unless he lays a foundation. It has to be based upon what somebody told him, he is going to vary the face of that deed. We have a written instrument.
THE COURT: Sustain the objection.
MR. CARTER: Note our exceptions.
Q. Okay, you bought the land in 1951, I mean, you said you bought it in 1949 and the deed shows that you got the deed in 1951?
A. Yes sir, that’s right.
Q. Now this property between your house and the McGill house has been identified as Lot 9; now, when you bought your property in 1949 what property did you take possession of?
A. I taken possession of Lot 9, Lot 8 and Lot 5, I bought a hundred and fifty foot front, and 120 back.
MR. HOWARD: If Your Honor please, I will object and ask the Court to respectfully advise, to instruct the jury to disregard his statement about what he was suppose to get because it is based on what somebody said unless Mrs. McGill was present at the time.
THE COURT: I will sustain the objection and instruct the jury that the instrument has been introduced which indicates that this witness bought Lots 5 and 8 in Paul’s Addition to the Town of Grady. Disregard his testimony as to its size or this last statement as to its footage.” [Our emphasis].

Thereafter, Brooks did testify without objection as to his possession of all of Lot 9, stating that he and his sister-in-law dug out weeds, Johnson grass, and vines, from this lot and testifying that the first year he raised a potato patch, and the next year grew vegetables on Lot 9, including corn, peas, greens, butter beans, okra and watermelons. In fact, he said that every year, he had grown something on that particular property.

Appellant argues that the statement of the court to the jury to disregard his testimony effectively killed his claim of adverse possession. In his brief, appellant states:

“It is well settled in this state that where a person mistakenly takes possession of land that he thinks he owns and holds the same, for the statutory period holding himself out as owner and claiming adversely, will acquire title by adverse possession. The comment of the Court stating that his deed indicated that he bought Lots 5 and 8 prevented the appellant from establishing his claim of adverse possession even though he mistakenly thought that he had record title to the property.
“Therefore, Appellant, Charlie Brooks, had a right to tell a jury that he entered upon Lot 9 under the belief that he owned it, and that he had continuously had possession of it since he bought it, or at least thought he bought it, in 1951. The remarks of the court, and his instruction to the Jury upon the law as hereinabove stated, could not have left him with any hope of obtaining a favorable jury verdict, if the jury followed the instructions of the court which they apparently did.”

We cannot agree with this argument. The court did not rule out the statement of Charlie Brooks that he took possession of Lot 9, but only told the jury to disregard the testimony as to the size and footage (which was purportedly the total of the three lots). That the statement about taking possession of Lot 9 was not ruled out is shown by the fact that immediately after the court’s ruling, Brooks testified extensively as to what he and his sister-in-law grew on Lot 9 throughout the years. He also testified about cutting a ditch on a part of Lot 9. Let it be remembered, Brooks has never, in any of his pleadings, contended that he had any record title to Lot 9. His full contention has been that he went into possession of it in 1949, and claimed it as his own from that time. Nor is there any assertion by either party that one had possession of a part of Lot 9 and the other the balance, so the amount of footage is immaterial; appellant simply testified that he took possession of all of the lot.

Appellant says that the remarks of the court, quoted herein from the record, were comments upon the evidence, all being to the prejudice of the claim of adverse possession by appellant. He apparently refers to the court’s statements relative to an engineer testifying about the boundaries and a reference to varying the terms of a written instrument. The statement about the engineer was made because the court understood counsel to be asking Brooks to testify to boundary lines, counsel later rephrasing his question. The other comment was in the nature of a question, but neither comment could have prejudiced the contention of appellant, viz., that he took possession of Lot 9 and held it adversely thereafter. After all, what the deed recited as to the lots being conveyed, had no bearing on the land Brooks claimed, since his sole claim to title was by adverse possession. As shown by the quoted record, it was admitted that the conveyance received from Mosely only gave him title to Lots 5 and 8.

The court gave the jury several instructions on adverse possession, telling the jury that Charlie Brooks claimed title to the land by adverse possession and that adverse possession ripens into ownership when there are seven years actual, open, notorious, peaceable, continuance, hostile and exclusive possession, with the intent to hold adversely. The jury was specifically told that notice of adverse possession may be actual or may be inferred from facts and circumstances, and that neither payment of taxes nor color of title is essential to establish a claim of title to improved lands by adverse possession where the claimant and predecessors are in actual possession. In other words, the contentions of Brooks were specifically and properly given to the jury, and we find no prejudicial error.

Affirmed.

Byrd, J. dissents.

       Actually, on cross-examination, appellant testified about this 150 ft., and it was permitted in evidence.

       As far as record title to Lot 9 is concerned, same was in Sam Bass, who deeded the property to appellee and husband in 1946, and if appellant’s grantor, Mosely, indicated to Brooks that he owned Lot 9, relief would be properly obtained from Mosely.


author: George Rose Smith, Justice.

text:
    Bailey REYNOLDS v. BAKEM CREDIT UNION
    73-75
    500 S.W. 2d 355
    Opinion delivered October 22, 1973

      R. David Lewis, for appellant.

      W. J. Walker, for appellee.
   George Rose Smith, Justice.

The appellee brought this action upon a $750 promissory note executed by the appellant Reynolds and by a co-maker whose debts have been discharged in bankruptcy. Reynolds has not denied his liability for the principal amount of the note. He did, however, file a counterclaim, individually and as the asserted class representative of other borrowers from the plaintiff, asserting that the plaintiff had violated the Truth in Lending Law, 15 U.S.C.A. § 1639, by failing to disclose the amount of its finance charges and its annual percentage rate. This appeal is from an order sustaining the plaintiff’s motion to dismiss Reynolds’ counterclaim. Though the point is not argued in the briefs, we may assume the order to be appealable. See Eisen v. Carlisle & Jacquelin, 370 F. 2d 119 (2d Cir., 1966); Reader v. Magma-Superior Copper Co., 108 Ariz. 186, 494 P. 2d 708 (1972); Miles v. N.J. Motors, 32 Ohio App. 2d 350, 291 N.E. 2d 758 (1972).

Reynolds concedes that the trial court’s action in dismissing his counterclaim, insofar as it constituted a class action, must be affirmed unless we overrule our holding in Tucker v. Pulaski Fed. S. & L. Assn., 252 Ark. 849, 481 S.W. 2d 725 (1972), which was decided at about the same time the trial court entered the order now before us. In Tucker we held that the filing of a class action is not within the scope of the counterclaim statute. Ark. Stat. Ann. § 27-1121 (Repl. 1962).

We adhere to the Tucker decision. Reynolds argues that both the counterclaim statute and the class action statute, Section 27-809, were parts of the Civil Code and should be construed together. In 1935, however, the legislature amended the counterclaim statute to provide that a defendant “must” assert his counterclaims, making that assertion mandatory. Corey v. Mercantile Ins. Co. of America, 207 Ark. 284, 180 S.W. 2d 570 (1944). Obviously the filing of a class action by counterclaim cannot be mandatory, for if it were the other members of the class would be bound by a single defendant’s failure to assert the common cause of action by counterclaim.

Reynolds also argues that the Tucker decision deprives him of his opportunity to maintain the class action, if he cannot assert it by counterclaim in this case. There are two answers to that contention. First, Reynolds could have filed the class action as plaintiff before the appellee took the initiative by instituting the present suit. Secondly, Reynolds has no inherent or constitutional right to bring a class action, because, apart from his personal cause of action, the recovery would be for the benefit of other persons.

In the briefs both sides agree that the trial court erred in dismissing Reynolds’ personal counterclaim. We do not pass upon the merits of that cause of action, for even if we held the pleading to be demurrable, Reynolds would be entitled to amend. We therefore affirm the trial court’s action in dismissing the class-action counterclaim, but we set aside the dismissal of Reynolds’ personal counterclaim and remand that cause for further proceedings, with Reynolds to recover his appellate costs.


text:
    Mrs. Ralph KIDD v. Bill PAVATT
    73-103
    500 S.W. 2d 339
    Opinion delivered October 22, 1973

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellant.

      Gordon, Gordon & Eddy, for appellee.
   George Rose Smith, Justice.

This is an appeal from a f30,000 personal injury award to the appellee. The appellant’s single contention is that the verdict is excessive. That issue depends essentially upon whether there is substantial evidence establishing a causal connection between the plaintiff’s injuries and a heart attack which he suffered about three months after the accident in which he was hurt.

On January 14, 1972, Pavatt, age 36, was riding as a passenger in a pick-up truck. While the vehicle was standing on the highway it was struck so violently from the rear by a car driven by the appellant that the bolts anchoring the seat of the truck were snapped. Pavatt was thrown forward against the dashboard, suffering injuries to his neck and back.

Three days later Pavatt consulted his family physician, Dr. Hickey, who found stiffness, soreness, and pain in the patient’s back and neck. Inasmuch as Pavatt had an abnormally fast heartbeat, Dr. Hickey put him in the Conway County Hospital, where a number of tests, including electrocardiograms, were made. Dr. Hickey’s final diagnosis was “a sprain of the cervical, dorsal, and lumbosacral spine, arteriosclerotic heart disease, coronary sclerosis, and multiple contusions and abrasions.” After Pavatt’s discharge from the hospital he continued to have pain and soreness in his neck and back and was treated by Dr. Hickey in February and March.

Pavatt again visited Dr. Hickey on April 29. In addition to the earlier complaints Pavatt was then suffering from chest pains. Dr. Hickey made another electrocardiogram, which showed evidence of a heart attack— myocardial infarction. Dr. Hickey again put his patient in the hospital. Dr. Hickey testified at the trial that Pavatt had a 20% permanent disability, of which 5% was related to the neck and back injuries and 15% to the heart condition.

Pavatt admittedly was suffering from arteriosclerotic heart disease at the time of the accident, but it had not been disabling. The question is whether the accident aggravated or activated his condition, within the rule stated in Owen v. Dix, 210 Ark. 562, 196 S.W. 2d 913 (1946): “The rule appears to be well settled that when a defendant’s negligence aggravates, or brings into activity, a dormant or diseased condition or one to which the injured person is predisposed, the defendant is liable to the injured person for the full amount of the damages which ensue, notwithstanding such diseased or weakened condition.”

Dr. Hickey testified that in his opinion there was probably a causal relation between Pavatt’s myocardial infarction and the neck and back injuries that he sustained in the accident. He explained that pain, nervousness, and tension affect the progress of heart disease and that it is well recognized in medicine that such afflictions can precipitate a heart attack. (A number of authorities are quoted in Woods, The Heart Attack Case in Workmen’s Compensation, 16 Ark. L. Rev. 214 [1962].)

Dr. Hickey is a general practitioner. The appellant’s only medical witness was another general practitioner, Dr. Weber, who had studied the medical records on the night before the trial but had not examined Pavatt. Dr. Weber was of the opinion that there was no possible connection between Pavatt’s injuries and his heart attack some three months later. It was his view that Pavatt’s heart disease had developed over a period of years and could not have been caused or aggravated by the automobile accident.

We can only conclude that the conflicting testimony made a question of fact for the jury. We cannot say that Dr. Hickey’s expert opinion is shown to have no reasonable basis. Dr. Hickey explained the reasons for his conclusions. His qualifications are essentially the same as those of Dr. Weber. In our judgment the testimony of each physician amounted to substantial proof supporting the beliefs that he expressed. It was for the jury rather than for the members of this court to determine the factual issue that was presented.

Affirmed.


author: Lyle Brown, Justice. John A. Fogleman, Justice.

text:
    Harold CONRAD v. William L. CARTER
    73-107
    500 S.W. 2d 336
    Opinion delivered October 22, 1973

      Rhine & Rhine and George Thiel, for appellant.

      Reid, Burge ir Prevallet, for appellee.
   Lyle Brown, Justice.

Appellant Harold Conrad, engaged in the business of clearing farm lands with heavy equipment, performed work for appellee William L. Carter, landowner. Appellant billed appellee for 67 hours of work at $15.00 per hour, which appellant claimed was the contract price. Appellee refused to pay that amount, claiming it was agreed that the maximum cost would run $150 per acre for bulldozing approximately two acres of land. The chancellor held that the purported contract was indefinite and decided the case under the quantum meruit rule, awarding appellant $350 for the work performed. On appeal it is contended that a definite contract was established and that the court erred in resorting to the quantum meruit rule.

There are two facets of the oral contract about which the parties disagree; one is the contract price, and the other being the time within which the work was to be performed.

With reference to the price, appellant said the sole agreement was $15.00 per hour. He did concede that they talked in terms of around $100 an acre:

Q. You didn’t tell him that you could do it for a little over $100 an acre?
A. I told him if it was sprouts like he told me it was, that I could.
Q. You told him if it was like he told you it was you could do it for a little over $100 an acre?
A. Yes, but I had been in the business long enough, I knew that it wasn’t just sprouts.
Q. A lot of people clear land for $100 an acre, don’t they?
A. They can do it cheaper than that with a regular cutting blade.

Appellant also conceded that the amount billed “was awful high for this job”.

Appellee’s testimony differed. He said he asked appellant for an estimate of the total cost, to which appellant replied: “Well, it will run you over $100 an acre, you can count on that”.

Q. How many acres were involved?
A. Two acres, and I said, “That’s fine, that’s good, if it run $150 it wouldn’t be bad”. Of course during this time I had Mr. Spence [tenant] and I told Mr. Conrad that Mr. Spence would represent me, that I wouldn’t be there and wouldn’t even know when they went out to do this work. [Mr. Carter, appellee, lived in Oklahoma].
* # * *
Q. Would you have hired Mr. Conrad to do this work for you at $15.00 per hour if he had not estimated the total cost to you per acre?
A. No, sir, I would not.

Witness W. B. Spence was present when the oral contract was made between the parties. He was appellee’s tenant. His memory about what was said between the two men was admittedly hazy. He did have some recollection about a conversation concerning contracting the job and that appellant declined to do so. He expressed no opinion as to whether a maximum price per acre was estimated by appellant. The witness said that after appellant completed the job, the witness and his son spent five days with a tractor and a chisel plow, pulling out roots from the cleared ground; he also said they pulled out a tree that was eight inches at the butt and some fifteen feet long, the tree having been pushed into the ground. He said an old house place consisting of approximately one acre, and one acre of trees and saplings, were in the contract for clearance.

We hold that this was not a case for the application of the quantum meruit rule. Both parties agree that there was a contract for services and the disputed question was the nature of the contract. “Where there is an express contract for services at a fixed compensation, there can be no recovery quantum meruit.” Christian & Taylor v. Fancher, 151 Ark. 102, 235 S.W. 397 (1921). However, we resolve chancery cases de novo. It is clear to us that the two men talked in terms of $100 an acre; however, they have a different version of the conclusion they arrived at on a maximum. Appellant said he told appellee that the work could be done for $100 an acre “if it was sprouts like he told me it was”. Appellee said he agreed that the cost could run as much as $150 per acre, and of course he should be bound by that agreement. The trial court observed that “it is ridiculous to say it would take 67 hours of bulldozer work to clear two and a fraction acres of land”. The court also observed that it was evident that the dozer worked several hours “slopping around there on wet ground”. There was also evidence that there were 130 trees, counting saplings, and that appellant said it would take fifteen minutes for each large tree. There was also evidence that in the category of large trees there were 21 trees better than 24 inches in circumference. It is our conclusion that the evidence establishes the contract to have been $15.00 per hour with a maximum of $150 per acre. On that basis the chancellor entered judgment for an amount equal to the contract which we find to have been entered into between the parties.

Affirmed.

Fogleman, J., dissents;

John A. Fogleman, Justice.

Dissenting. I respectfully dissent because I feel that the evidence in this case is clear that the agreement did not limit Conrad’s compensation to $150 per acre. It may well be that appellant claimed credit for more hours than he should have because of attempts to work when the soil conditions, due to weather, were not proper for land clearing or the use of Conrad’s equipment. I agree that the case is not one for the application of quantum meruit and that Conrad is probably not entitled to the full amount claimed by him.