author: Carleton Harris, Chief Justice.

text:
    Huffman Wholesale Supply Co. v. Terry
    5-3787
    399 S. W. 2d 658
    Opinion delivered March 7, 1966

      Gardner & Steinsielc, for appellant.

      James E. Hyatt, Jr., for appellee.
   Carleton Harris, Chief Justice.

.-This case concerns a materialman’s lien. E. M. Terry, a building contractor of Blytheville, entered into a contract on March 6, 1964, with the trustees of the Rozelle estate for the construction of a home for Mrs. Mattie Rozelle in Osceola, Arkansas. Pursuant to the contract, Terry commenced construction and purchased certain materials Ipom Huffman Wholesale Supply Company, appellant herein, and used these materials in building the home. Terry subsequently left the job, but it was completed by subcontractors. Whether or not the job was “completed” in July, or in September, is the controlling fact in the litigation. Terry, according to Huffman, madé some payments on other jobs that he was working on during the same period, but made no payment on the Rozelle job. 2Work ended on the Rozelle construction about July 13, 1964, except for three instances, as follows: Air grills were purchased on August 20 to replace defective or improper air grills which had been originally installed; on September 17, and 23, a water faucet and installation accessories were purchased by the plumber and installed.

On December 3, appellant caused to be served upon Terry, and Bowen Thompson, Mattie P. Rozelle, and Roy E. Cox, the last three being executors and trustees of the Rozelle estate, notice of intention to file a lien; on December 22, 1964, appellant filed its affidavit for a lien, and on January 20,1965, suit was instituted against the aforementioned persons, seeking recovery for materials allegedly furnished for the construction of the residence for Mrs. Rozelle, in the amount of $2,557.58. Appellant prayed that a lien be declared on the home property to secure the payment of this judgment. On February 5, 1965, appellees filed an answer, and cross-complained against Terry, alleging breaches of the contract on the part of that defendant In their answer, the trustees asserted that they had paid to Terry the sum of $27,450.00 (leaving a balance due of $1,603.69), through July 24, 1965; that Terry had agreed to pay all labor and material costs in connection with construction of the residence; they denied that appellant was entitled to a lien. The case proceeded to trial before a jury, and after appellant had completed its testimony by various witnesses, appellees moved for a directed verdict, and this motion was granted by the court. Judgment was entered for appellees, and appellant was given judgment against Terry in the amount of $2,557.58. Appellant appeals the judgment insofar as it directs a verdict in favor of appellees. Appellant correctly states the issue between the parties as follows:

“Appellant contends that the material furnished from March through September was for material contemplated by the contract between the landowners and Mr. Terry. If the purchases made in September were for materials not anticipated in the original construction of the house or was for repair on the original construction of the house, then the purchase of such material would not extend the lien time. On the other hand, if the material purchased in September was merely the finishing up of the original contract, then the time for filing a lien would not begin to run until the date of the last purchase made.”

Of course, we are here dealing with a directed verdict, and this court has said on numerous occasions that, in determining the correctness of the trial court’s action in directing a verdict for either party, we must take that view of the evidence which is most favorable to the party against whom the verdict is directed, and, if there is any substantial evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error for the court to take the case from the jury. See Barrentine v. The Henry Wrape Company, 120 Ark. 206, 179 S. W. 328, and cases cited therein. Also, in Smith v. McEachin, 186 Ark. 1132, 57 S. W. 2d 1043, we said:

* * * In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.”

Applying the rule set out in these cases, let us proceed to examine the evidence in this case. The proof reflects that original plans for the house called for two water faucets to be placed on the outside of the structure. One of these was installed prior to July 13, but the other, which was to be placed on the front of the house, Avas not installed. According to appellant’s evidence, the porch came out farther than had been anticipated under the plans, and the workers were directed not to install that faucet. Frank McGruder, plumbing contractor, who had charge of installing the plumbing, stated in his testimony :

“These tickets [referring to the two September tickets] both pertain to materials necessary to move a sealed faucet from a location on the porch around the corner of the house. As far as I know, the materials were drawn for that. ’ ’

When Mr. McGruder was asked if there was actually any faucet already installed to be moved, the witness replied:

“Actually prior to that there was a faucet or preparations for a faucet had been made on the porch. We were instructed by Buddy or Dick Wright, which Avas his assistant, to cap the faucet, that faucet was not wanted at that location, and it was plugged and sealed over with brick mortar. At a later date we Avere .told the faucet was necessary, and they just didn’t want it on the porch and it Avas to be moved around the corner of the house.”

Mr. McGruder identified an invoice of July 8, 1964, in the amount of $249.23 for pipe, elbows, faucets, and other plumbing materials, as being used on the job. He stated that it took him about two days, to complete the plumbing work, and that he had completed the plumbing work certainly not later than July 13, 1964. He further testified that while this Avork was going on (from July 8 to July 13), Mrs. Rozelle Avas not occupying the house. On September 17 and September 23 the faucet and installation materials were purchased from appellant in the amounts of $.86 and $1.63, and admittedly, these were the only items purchased after the July completion of plumbing construction that could possibly relate bade to the original contract, and extend the time for filing a lien. The faucet was installed on one side of the house.

Appellant, of course, is insisting that the installation on September 23 was a part of the original construction, while appellees contend that construction ended on July 13.

Appellees point out that from the time the construction commenced in March, until July 13, materials were furnished at short and regular intervals—but that the final small purchase (in September) was made more than sixty days after the last construction work. It is also pointed out that Mrs. Rozelle moved into the property after July 13—but before September, and was living there at the time that the second faucet was installed. On August 20, new air grills were purchased and installed to replace inappropriate or defective air grills. Appellees take the view that the house construction was complete on July 13, and Mrs. Rozelle, living in the house, was replacing items that had proved deficient. Apparently, it is their view that it was only after she moved into the property that she decided there was a need for a second outside faucet, and that the purchase of this material was not related to the original contract in any manner. To the contrary, appellant contends that appellees never intended to do without the faucet—but only meant to move it from one location to another. Perhaps it is somewhat strange that more than sixty days would elapse before one small item (if still a part of the original contract), would be installed, but this is a matter to be argued to the jury. We think, under the testimony quoted, that it is purely a question of fact whether the purchase of the second faucet and materials was made as a matter of carrying out the original plan, or whether the purchase and installation of the second faucet were entirely a separate and distinct transaction. In 36 Am. Jur., Section 141, Page 98, we find:

“If the furnishing of material or the performance of some service is expressly required by the terms of the contract, the time for claiming a lien will commence to run from the date of furnishing such article or performing such service, although the article is furnished or the labor performed some time after the substantial performance of the contract, and it is trivial in character. But to extend the time for filing, work performed or materials furnished must be required by the contract, and what is done must be done in good faith for the purpose of fully performing the obligation of the contract, and not for the mere purpose of extending the time for filing the lien.

“Where the items are furnished under one contract, unless the delay is unreasonable, the fact that a consicl - erable time intervenes between the date of the last item and the preceding items is not of itself sufficient to preclude the lienor from computing the time to claim a lien from the date of the last item. This is especially so where the delay is at the instance and request of the owner, if the rights of third persons do not intervene. But one claiming a right of lien after having substantially completed his contract cannot unreasonably or purposely delay completing the same as to some trifling matter, and thereafter, by completing the contract in this respect, extend the time for claiming a lien to the latter date. ’ ’

It is true that the September purchase was made after a delay of sixty days, whereas other purchases had been made at much shorter intervals—but we cannot say as a matter of law that a sixty-day delay in making purchases defeats any claim for lien. It is true that the purchase of the faucet is rather trivial—but we cannot say as a matter of law that mere triviality defeats the lien. It is established that Mrs. Rozelle had moved into the property—but we cannot say as a matter of law that this fact precludes a lien.

We think it evident that the court should have denied the motion for directed verdict.

Reversed and remanded with directions to proceed in a manner not inconsistent with this opinion.

      This testimony was rather indefinite, and Huffman was unable to enumerate the jobs where payments had been received.

      The transcript and briefs list Terry as an appellee in styling the case, but Terry did not file any pleading at all, and completely defaulted.

      The lien statute, and exceptions to its requirements, are discussed in Streuli v. Wallen-Dickey and Rich Lumber Company, 227 Ark. 885, 302 S. W. 2d 522.

      This did not include the second faucet.

      It is not contended that this purchase had anything to do with extending the time for filing lien, since this was a replacement or repair job.


source: Caselaw Access Project

author: Oarleton Harris, Chief Justice.

license: Public Domain

text:
    Douglas v. Schneider
    5-3764
    399 S. W. 2d 663
    Opinion Delivered March 7, 1966

      Nell Powell Wright, for appellant.

      Terry M. Poynter, Roy E. Danuser and Frank J. Huckaba, for appellee.
   Oarleton Harris, Chief Justice.

The facts in this case are somewhat unusual. In 1948, Mrs. Laura B. Parker, of Baxter County, owned all of the lands in question in this litigation. A creek ran through this property, and Lee Douglas and wife, appellants herein, desired to purchase that portion of the lands east of the creek, and also enough land west of the creek to enable appellants to enclose their property without running the risk that the fence would be washed away by a rise. A survey was made by the County Surveyor, establishing a boundary on the west side of the creek. On July 22, 1948, Mrs. Parker executed a deed to Mr. and Mrs. Douglas, conveying the land in question to them, and describing the west boundary in accordance with the survey that had been made. Thereafter, in 1951, Mrs. Parker offered the remainder of her land to Mr. Douglas, but he was financially unable to purchase it. Fred Van Schaik, one of the appellees herein, while visiting in Baxter .County, and staying in a motel owned by Robert Badsky, a neighbor of appellant, contracted through a real estate broker to buy the remaining lands owned by Mrs. Parker. Badsky informed Van Schaik that Douglas could obtain the lands for him at a lesser price than would be charged by the broker, and Van Schaik can-celled his agreement. Badsky then contacted Mr. Douglas, and he, in turn, got in touch with Mrs. Parker. On August 29, 1951, Mrs. Parker executed a deed conveying her remaining lands to appellants. Thereafter, on September 22, 1951, appellants conveyed the latter property to Van Schaik and wife, using the same description under which they received the property from Mrs. Parker.

In April, 1958, Van Schaik and wife agreed to sell the lands to Wesley W. Schneider and wife, also appellees herein. At that time, a mistake in the description in the deed (Douglas to Van Schaik) was discovered. To correct the mistake, the Douglases executed a correction deed to the Van Schaiks on April 23, 1958. However, this deed likewise was erroneous, and specified the creek as the east boundary, rather than following the surveyed line. There is no explanation of why this mistake was made, other than it simply appears that the deed was not read at the time it was signed. The deed was placed of record, and the abstract was brought up to date. An attorney then examined the abstract, and gave Mr. Schneider a title opinion, reflecting merchantable title in the Van Schaiks to the lands described in the Douglas to Van Sehaik correction deed of April 23. The Schneiders then completed the purchase, and received the Van Schaiks’ deed on April 25. The description in the correction deed' executed by the Douglases is identical with the description in the Van Schaiks’ deed to the Schneiders. In July, 1958, Douglas discovered the mistake, and discussed this with a real estate broker, Jim Gibson, who had handled the sale from the Van Schaiks to the Schneiders. After investigation, Gibson agreed that a mistake had been made. Thereafter, the Douglases signed a second correction deed to the Van Schaiks, reforming the eastern boundary of the Van Schaik-Schneider tract to conform to the survey line. Later in the month, the Van Schaiks signed a deed to the Schneiders, containing the same description. The testimony concerning circumstances connected with the related events is rather conflicting. At any rate, on March 15, 1965, the Schneiders and Van Schaiks instituted suit, alleging that the Schneiders owned the land, having acquired it from the Van Schaiks, and that the July correction deed from the Douglases to--- the Van Schaiks was executed without the consent of the Schneiders ; that the correction deed of July 12, 1958, from the Van Schaiks to the Schneiders was never delivered, was executed at a time when the Schneiders were not within the state, and was executed in blank by the Van Schaiks; that this deed was a nullity, and the complaint prayed that this deed be set aside as a cloud on the Schneiders’ title. Mr. and Mrs. Douglas answered, denying the allegations, and asking that the correction deed of April 23, 1958, to Van Sehaik, and the deed of April 25, 1958, from Van Sehaik to Schneider be cancelled. The case proceeded to trial, and at the conclusion of the evidence, the Chancellor held for appellees, and granted the relief prayed. From the decree so entered, appellants bring this appeal.

It is clear that Mr. and Mrs. Douglas had no intention of conveying to the Van Schaiks any lands other than those conveyed by the Parker deed of August 29, 1951, i. e., appellants did not intend to include any of the land which had been purchased for their own use in 1948. In fact, it is not argued otherwise. However, Van Schaik testified that he thought he was buying to “the creek,” and he intended his conveyance to Schneider to show the creek as the boundary. As to the July, 1958, correction deed from the Douglases to him, the witness stated that he did not know whether Douglas ever delivered him a correction deed or not, but he did say that he knew he was not advised that the boundary was being changed, and that he signed the correction deed to Schneider with the assurance that the creek was the east boundary of the property; that this assurance was given by either Mr. Douglas, or Mr. Gibson. He could not state definitely, but was under the impression that he might have signed this deed in blank.

Douglas testified that he paid a Mountain Home attorney to make the first correction deed, and that he went back to the same attorney to have the second correction deed made in July. Douglas recorded both July deeds, from himself and wife to the Van Schaiks and from the Van Schaiks to the Schneiders, and paid for same. Admittedly, Douglas never had any conversation or transactions with Schneider prior to the July correction deed, nor did he advise appellees that he had recorded these instruments.

Jim Gibson, who was engaged in the real estate business in Mountain Home in 1958, handled the Schneider purchase. Gibson testified that he represented the property line to be “just short” of the creek; subsequently, the witness said that he did not remember just what he told Schneider. He stated that sometime after the April deed, Douglas told him that part of his (appcllant’s) own land had been deeded, for the deed named the creek as the boundary. Gibson stated that he believed that he delivered the July Van Schaik-toSchneider deed to the latter.

Schneider testified that when he purchased the lands he was of the opinion that he was buying all lands on the west side of the creek. He stated that he never had any knowledge of any deeds, affecting his title, after the correction deed of April 23, 1958, and that he did not know of any claim that anyone was making to this land until the previous fall when he was advised that Douglas and some surveyers were on his property, and, upon making inquiry, was told by Douglas that a mistake had been made in the deeds, and “you don’t even know what property you got.” Thereupon, Schneider consulted his attorney.

The 'Chancellor found that the Schneiders, relying on the record title, and in good faith, purchased the lands in question from the Van Schaiks on April 25, 1958; that the correction deed from Douglas and wife to Van Schaik and wife, of July 3, was executed without the agreement of the Van Schaiks; that Schneider and wife had no knowledge of any July correction deed from the Van Schaiks, and that such an instrument was never delivered to, or accepted by them. Of course, the trial court had the advantage of observing every witness that testified, and thus was in a position to know the reaction of each witness to the questions propounded. Here, people were testifying about events which had happened a number of years earlier, and accordingly, the trier of the facts had a particular advantage (over this court) in observing how they seemed to recall these past events, %. e., whether they were positive—or doubtful—sure—or unsure. However, we do not deem it necessary to discuss the law relative to the effectiveness (or lack of it) of an undelivered deed, or the law relating to the recording of deeds where delivery is not established, for we are of the opinion that the record reflects that the Schneiders purchased the lands in question in good faith, and had no notice that Mr. and Mrs. Douglas were claiming any part of these lands. Appellants controvert this finding- by pointing out that the original contract between Van Schaik and Schneider, entered into on April 15, 1958, provided that the Schneiders would purchase from the Van Schaiks:

“All acreage covered in deed from Lee Douglas and Wilma Douglas to Fred Van Schaik and Katherine J. Van Schaik, located in Independence Acres tract as platted by Surveyor of Baxter County, as recorded in Surveyor’s record “C” at page 261 of Baxter County Arkansas. ’ ’

It is undisputed that the Schneiders never saw the instruments or documents referred to, and we do not agree that, under the circumstances of this case, the failure of the Schneiders to go to the courthouse and check these records deprives them of the status of innocent purchasers. The Schneiders did what every purchaser should do before buying property. They employed an attorney to examine the abstract of title; they were aware of the correction deed given by Mr. and Mrs. Douglas to Mr. and Mrs. Van Schaik on April 23 (two days before they completed the purchase), and that it had been given to correct an error in an earlier deed. There was no reason for them to suspect any error in the correction deed, and accordingly no reason to “look behind” that deed. The description by which the property was conveyed to them is exactly the same as in that correction deed. The Schneiders only paid their money after receiving the attorney’s opinion that Van Schaik and wife held a good and merchantable title to the lands being purchased.

Really, it would appear that both the Schneiders and Douglases were innocent parties, but Douglas’ error actually was responsible for the situation that arose. Appellants state, “Douglas simply acted as a go-between at the request of Van Schaik, to save Van Schaik some money, and is being penalized under the court’s order because he just happened to own the adjoining land.” It might be pointed out, however, that Mr. Douglas’ efforts were not entirely a matter of being “neighborly,” or ‘ ‘ for accommodation, ’ ’ since he testified that he purchased the property from Mrs. Parker for either $900.00 or $1,000.00, and sold it to the Van Schaiks for $1,500.00. Accordingly, he made $500.00 or $600.00 on the transaction.

We are unable to say that the Chancellor’s findings were against the preponderance of the evidence.

Affirmed.

      This survey line followed the meandering- of the creek, and ranged from several feet to fifty feet from the west bank of the creek at the time of the survey.

      It was also erroneous in that it described the land to be located in the northeast quarter of the northeast quarter, instead of the northeast quarter of the northwest quarter. The deed was reformed by the court to correct this error, and that is not at issue here.

      Mr. Douglas said, *'I never read it, I didn’t have my glasses with me * *


author: Ed. F. MoFaddin, Justice.

text:
    Hill & Company v. Pitzele Gin Co.
    5-3792
    399 S. W. 2d 667
    Opinion delivered March 7, 1966

      Dudley & Burris, for appellant.

      Ponder & Lingo, for appellee.
   Ed. F. MoFaddin, Justice.

Appellant, James C. Hill & Company, Inc., filed action against the appellee, Pitzele Gin Company, for $1,650.00, claimed to be due under a written contract. The appellee denied liability. Trial to the Circuit Court without a jury resulted in judgment for the appellee, and the appellant prosecutes this appeal.

The background facts will be recited in some detail. Appellant, James O. Hill & Company, Inc. (hereinafter called “Hill”), is a cotton buyer, with its main offices in Memphis, Tennessee, and a local representative in Lawrence County. The appellee, Pitzele Gin Company (hereinafter called “Pitzele”), is a partnership, engaged in operating a cotton gin in Lawrence County. On August 23, 1963 appellant and appellee entered into a contract whereby appellee would purchase from the producers (farmers) all the cotton that it could that was ginned at the Pitzele gin in the season of 1963, and the appellee would sell such purchased cotton to appellant. The contract was prepared by appellant at its office in Memphis and sent to its local representative in Lawrence County and there signed by appellee. We copy the contract in full:

“JAMES C. HILL & COMPANY
Incorporated
COTTON
P. O. Box 599
Memphis, Tennessee
“No. 2302 August 23,, 1963
“Pitzele Gin Co.
Walnut Ridge, Arkansas
“We beg to confirm the following purchase:
“Quantity Approximately 1,500 (fifteen
hundred) bales.
“Description All cotton ginned and bought during the 1963/1964 season. Cotton to be stored at the Federal Compress & Whse. Co., Walnut Ridge, Arkansas. U. S. Government Green Card Class.
“ Price 10 points over the Government loan. Buyers to receive my rebate paid by the Federal Compress & Whse. Co. for concentrating the cotton into the compress. [Italics our own.]
1 ‘ Terms FOB compress, Walnut Ridge, Arkansas. Receiving and storage charges to be deducted by the seller.
‘ ‘ Reimbursement S/D with invoice and warehouse receipts attached on James C. Hill & Co., Inc., c/o The First National Bank, Memphis, Tennessee. Seller to furnish U. S. Government Green Cards with each draft.
..“Remarks All cotton classed grassy will be invoiced at 100 points under the grade to which it has been reduced. Price adjusted accordingly. No below grades acceptable. In the event the Government comes out with a domestic subsidy paid to the farmer and buyer or seller cannot be protected, it is agreed by seller to put cotton in loan and buyer to pay 10 points to seller.
“No liability shall result to us from our delay or failure to deliver commodities sold or to accept commodities bought when such delivery or acceptance is delayed or prevented by riots, strikes, floods, fire, storm, earthquake, tornado, act of God, delays of carriers, embargoes, or other causes beyond our control.
“If this contract is incorrect kindly advise immediately by wire. We thank you for the order.
“Yours very truly,
JAMES C. HILL & CO., Inc.
James C. Hill.”
“Accepted: Pitzele Gin Company by W. E. Spikes
“September 3, 1963

Under this contract, Pitzele bought for the account of Hill 1,650 bales of cotton. After the cotton had been ginned and baled, Pitzele would contract to buy the cotton from the producer (farmer). The bale would then be taken to the Federal Compress & Warehouse in Walnut Eidge, where a compress receipt would be issued. Pitzele would then pay the producer (farmer) the price for which Pitzele had purchased the cotton, and Pitzele would then, attach the said compress receipt to a sight draft drawn on Hill. Of course, until Hill received the compress receipt, it did not obtain title.

Is some- previous years, the compress receipts had been issued in the name of the individual producer (farmer); but for the 1963 season the compress issued all such compress receipts in the name of Pitzele; and that fact contributed to the present litigation. The compress in Walnut Eidge is one owned and operated by the Federal Compress & Warehouse Company (hereinafter called “Compress”); and shortly before May 15, 1964 the compress, in accordance with its custom of a previous year, decided to make a refund of $1.00 per bale on all cotton that had been delivered to it in the 1963 season. This refund was under Rule 19.

The compress offered Pitzele a check for $1,650.00 for such refund, but Pitzele refused to receive the check, advising the representative of the compress that the refund belonged to the individual producers (farmers) and should be distributed to them, just as had been done in previous years. The compress agreed with Pitzele, and while it was in the process of getting the names of the individual producers and the number of bales of each producer, Hill filed this present action against the compress and Pitzele for the $1,650.00. The compress paid the money into the registry of the Court and was discharged. Pitzele made a refund of $1.00 per bale to each producer (farmer) whose cotton it had bought and this totalled $1,650.00; and then Pitzele claimed the $1,650.00 in the registry of the .Court.

The basis of Hill’s claim for the $1,650.00 was the previously italicized wording in the contract between Hill and Pitzele, which said: “Buyers to receive any rebate paid by the Federal Compress & Whse. Co. for concentrating the cotton into the compress.” Pitzele took the position that the $1.00 per bale refund was not a rebate for concentrating the cotton into the compress, but was a refund that the compress was paying to obtain the good will of the farmers and that Pitzele had likewise passed the refund on to the farmers in order to have their continued good will to get cotton ginned at Pitzele’s gin.

With the issues thus joined, the Circuit Judge heard the evidence ore tenus and decided in favor of Pitzele. The Judge delivered written findings of fact and conclusions of law; and we copy pertinent excerpts:

“At the time of delivery to Federal Compress & Warehouse Company the cotton was still owned by the individual producer although it was later bought from the producer by Pitzele Gin Company and then title transferred to James C. Hill & Company. For convenience, and to simplify bookkeeping, warehouse receipts were issued to Pitzele Gin Company rather than in the name of each individual producer
“Since the contract was prepared by James C. Hill & Company it must be construed in the light which is most favorable to Pitzele Gin Company.
“The refund of $1,650.00 from Federal Compress & Warehouse Company Avas a voluntary gift to promote its business. It is obvious the Federal Compress & Warehouse intended to place itself in a position so that it could meet competition, and promote good will among its customers which xvould be the producers and ginners of the area around Walnut Ridge, Arkansas. . . .
“Since the money Avas not a payment for the concentrating of cotton it Avould not be due to James C. Hill & Company under its contract with Pitzele Gin Company.
“Pitzele Gin Company having prepaid the individual producers, is now entitled to the deposit in the registry of the Court and should be paid same. ...”

With the litigation stated in detail, we come to our own conclusions. We emphasize that Hill prepared the contract with Pitzele, so in considering any doubtful meaning, the contract is to be construed most strongly against Hill. Gulf Compress Co. v. Harrington, 90 Ark. 256, 119 S. W. 249; Taylor v. Union Saw Mill Co., 105 Ark. 518, 152 S. W. 150; Ark. P. & L. Co. v. Murry, 231 Ark. 559, 331 S. W. 2d 98; and Shuffield v. Harton, 234 Ark. 455, 352 S. W. 2d 574.

The burden ivas on Hill to prove that the $1.00 per bale refund by the compress was “a rebate paid . . . for concentrating the cotton.” The compress’ rule called the amount a “refund.” While the dictionaries may make no appreciable distinction between “refund” and “rebate,” yet the testimony in this case shows the difference. The refund of $1.00 per bale went to the farmer who produced one bale, as well as to the large plantation owner who produced many bales. It was a uniform refund to all alike and not on the basis of “concentrating.” That word, “concentrate,” means “to bring to a center. ’ ’ If cotton had been at several points and in other warehouses and had been brought to Walnut Ridge, then the amounts paid for such bringing could have been ‘ ‘ rebates for concentration.” But, here, every depositor of cotton for storage was treated equally. The $1.00 per bale was a refund to gain future business, and not a rebate for previous labors.

After hearing all the evidence as to customs and refunds in a previous year, the Trial Court reached the conclusion that the $1.00 per bale was not a “rebate for concentration”; and we agree.

Affirmed.

      On this appeal appellant urges three points, being:
      “I. The Court erred in its finding of fact and conclusion of law that the rebate paid by Federal Compress & Warehouse Company was not a payment for concentrating cotton into the compress.
      “II. The Court should have awarded Judgment to the plaintiff as a matter of law.
      “III. The Court erred in its finding that James C. Hill & Company, Inc., was not entitled to the refund because it was not a potential customer with whom Federal Compress & Warehouse Company would attempt to create good will.”

      The compress company had issued an 8-page folder containing the schedule of charges and rules for its various compresses and warehouses. One of the rules was Rule 19, which reads in full:
      “19. The company will make a refund as of the close of the fiscal year to each patron who deposits flat cotton with the company for storage and compression. The name on the warehouse receipt shall determine who shall receive any refund made hereunder, and no bale of flat cotton shall be the subject of more than one refund. The decision of the board of directors will be based on net earnings and the competitive situation and shall be final as to the amount and time of such refund.”


author: George Rose Smith, Justice.

text:
    Hickenbottom v. Masterson
    5-3799
    399 S. W. 2d 662
    Opinion delivered March 7, 1966

      J. Loyd Shouse, for appellant.

      Moore & Brockman, Walker, Villines & Spears, for appellee.
   George Rose Smith, Justice.

This is a suit by the appellant to quiet his title to two tracts of land that were assertedly owned by his father, Kenneth Hickenbottom, at his death in 1961. The decision with respect to each tract turns upon a question of fact. The plaintiff contends that Kenneth received both tracts as gifts from his father, M. Hickenbottom. The chancellor rejected the plaintiff’s claim to the first tract on the ground that the deed to Kenneth was never delivered. The chancellor divided the second tract equally between the plaintiff and the defendant Dale Hickenbottom (Kenneth’s brother), finding that Kenneth held title upon a valid oral trust for himself and Dale.

As to the first tract, the decree is not against the weight of the evidence. Kenneth’s widow testified that in 1954 or 1955 Kenneth’s mother brought over the deed to that tract and delivered it to Kenneth. This testimony is contradicted by Kenneth’s mother, who says that the deed was not delivered and that after Kenneth’s death her husband gave the land to his daughter, the appellee Madoline Masterson. That Kenneth’s deed- was not recorded until some months after his death is some indication that his mother’s account is correct. Upon an issue of credibility involving two interested persons we are inclined to be guided by the chancellor’s decision. Cowan v. Powell, 219 Ark. 498, 243 S. W. 2d 373 (1951). As to the first tract the decree is affirmed.

Kenneth was the sole grantee in the deed to the second tract, but the trial court found that he and his father orally agreed that Kenneth would hold the land for himself and his brother Dale. It is true that, in a situation involving a confidential relation, equity will enforce the grantee’s oral promise to hold the title for another. Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840 (1955). There we pointed out, however, that the proof of the trust must be by clear and convincing evidence—the usual safeguard when the terms of a solemn written instrument are to be overturned by parol proof.

Here the testimony gives rise to serious doubts about the existence of the supposed oral arrangement. If Dale was to have a beneficial interest in the land there was no good reason for his not being named as a grantee. Dale received other land from his father; so there is no apparent inequity in a gift of this parcel to Kenneth. The plaintiff testified that Dale obtained Kenneth’s permission to cut firewood from the land. It is indicated that Kenneth paid all the taxes on the tract for several years before his death.

Dale offered a number of witnesses to support his side of the dispute, but much of their testimony related to an alleged oral agreement between Kenneth and Dale —an agreement that seems to have been separate from Kenneth’s supposed promise to his father that he would hold the title for Dale and himself. When we consider the record as a whole we do not have that abiding feeling of certainty that comes from clear and convincing proof. As to the second tract the decree is reversed and the cause remanded for the entry of a decree quieting title in the appellant.


author: George Rose Smith, Justice. Paul Ward, Justice,

text:
    Griffin v. Monsanto Co.
    5-3807
    400 S. W. 2d 492
    Opinion delivered March 7, 1966
    [Rehearing denied April 11, 1966.]

      Bernard Whetstone, for appellant.

      Mahony & Yocum, for appellee.
   George Rose Smith, Justice.

Thomas Talmage Griffin died on May 4, 1962. This action for his wrongful death was brought by the appellants, his widow and children, against the appellee, the decedent’s employer. The appeal is from an order dismissing the complaint on the ground that the plaintiffs’ exclusive remedy is under the workmen’s compensation law.

The complaint, as amended, asserts that Griffin, while on duty as an employee of Monsanto, was stricken as a result of having inhaled nitric acid fumes. Griffin was taken to a hospital, where, according to the complaint, Monsanto and its agents “neglected to inform the attending physician of the nature of the fumes which said Thomas Talmage Griffin inhaled, to the end that the wrongful and negligent withholding of this information prevented the attending physician from making such a diagnosis and giving such treatment at that time as would have, in all probability, resulted in the attending physician being able to save the life of said Thomas Talmage Griffin.”

By another count in the complaint, later abandoned, the plaintiffs charged that the defendant had concealed the true cause of Griffin’s death by representing to the plaintiffs that he had died a natural death as a result of a heart condition. An amendment to the complaint sought punitive damages on the ground that the defendant acted “with conscious indifference to consequences.”

The defendant moved that the complaint be dismissed with prejudice, because the plaintiffs’ remedy was under the workmen’s compensation law. Attached to the motion was an affidavit, conceded by the plaintiffs to be true, stating that Monsanto had complied with the Workmen’s compensation law in all respects, that the plaintiffs had filed a claim for compensation under that law, and that the Workmen’s Compensation Commission had dismissed the claim. The circuit court sustained the defendant’s motion and dismissed the complaint with prejudice.

At the outset we observe that the defendant’s pleading is not properly called a “motion to dismiss.” If a complaint states a cause of action our code of procedure does not permit the defendant to single out a fact essential to the plaintiff’s case, file affidavits denying that fact, and on the strength of those affidavits seek an order dismissing the action without a trial on the merits.

The defendant’s pleading is in substance a motion for a summary judgment. We so treat it. Such a motion cannot be used to submit a disputed question of fact to the trial judge. Testimony submitted with the motion “must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.” Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963). Judgment should be entered summarily only if the evidence, when so considered, shows that there is no genuine issue as to any material fact in the case. Ark. Stat. Ann. § 29-211 (c) (Repl. 1962).

We turn, then, to the question whether a summary judgment was proper in the case at bar. As a general rule, if an employee’s compensable injury is later aggravated by the employer’s negligence, as by his sending the injured workman to an incompetent physician, the employee may pursue a remedy under the compensation law for the aggravation of his original injury. As a corollary to that rule the employer cannot be sued at common law, because the compensation act provides an exclusive remedy. Larson, Workmen’s Compensation, § 13.21 (1965); Fernandez v. Gantz, 113 F. Supp. 763 (D.C. D.C. 1953); Berry v. United States, 157 F. Supp. 317 (D. C. Ore. 1957); Young v. International Paper Co., 282 App. Div. 750, 122 N. Y. S. 2d 39 (1953).

Here the defendant’s request for summary judgment, with its supporting affidavit, is deficient in its failure to show that Griffin’s widow and children had a remedy under the compensation act. All that appears is the bare statement that their claim for compensation was dismissed. If, for example, Griffin’s death did not arise out of and in the course of his employment, the claim may never have been within the purview of the compensation act. In that event we should not compel the claimants to invoke a nonexistent statutory remedy for their contention that the defendant’s intervening-negligence was a factor in Griffin’s death. Thus there are essential issues of fact still unresolved.

We need not say whether the plaintiffs’ complaint, without further amendment, asserts such willful action on Monsanto’s part as to bring the case within the rule adopted in Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S. W. 2d 28 (1950). Issues such as that can await the full development of the case. At the moment it is enough for us to say that the present record does not justify a summary disposition of the litigation.

Reversed.

McFaddin, J., not participating.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. In my opinion the trial court ivas correct in dismissing appellants’ complaint. Either Griffin was or was not an employee of Monsanto when he was injured.

1. If Griffin was not an employee, then Monsanto was under no legal obligation to see that he was furnished proper medical attention and treatment.

.2 If Griffin was an employee, then the complaint does not state a cause of action in circuit court. It only states Monsanto was “negligent.” To state a cause of action it was necessary to allege Monsanto’s action was “willful and malicious.” See: Heskett v. Fisher Laundry & Cleaners Company, Inc., 217 Ark. 350 (p. 351), 230 S. W. 2d 28.


author: Paul Ward, Justice.

text:
    Ark. State Highway Comm. v. Troutman
    5-3843
    399 S. W. 2d 686
    Opinion delivered March 7, 1966

      Mark E. Woolsey, and PMl Stratton, for appellant.

      Walker & Villines, for appellee.
   Paul Ward, Justice.

This case involves the taking, for highway purposes, of a small piece of land located on U. S. Highway 62-65 in the town of Bellefonte.

On June 18, 1965 eleven property owners in or near Bellefonte filed a petition in chancery court to enjoin the Arkansas State Highway Commission (appellant herein) from entering upon and taking their property. Two months later Alma Troutman (appellee herein) filed an intervention in said action, asking for the same relief. Thereupon appellant filed an answer to the intervention alleging that it acquired the right-of-way over appellees’ land “by a certain order of Boone County Court of 1928.”

After a hearing on the issues joined the trial court entered a decree finding: (a) appellant is attempting to encroach upon the lands of appellee; (b) there is no evidence of formal notice to appellee of the entry of the said Condemnation Order in 1928; (c) appellant has failed to prove by a preponderance of the evidence “any material changes in the actual right-of-way constructed or used by the Highway Department such as to put the land-owner on notice of the County Court Condemnation Order, prior to the present construction program now in progress,’"’ and; (d) Boone County is without funds to pay appellee for the land being taken. The court then enjoined appellant from entering upon appellee’s land unless it deposited $2,000 to pay such sum as might later be awarded to her.

To reverse the decree, appellant contends it is not supported by the preponderance of the evidence. Appellant is to he commended for further simplification of the decisive issue by saying: “The only point in issue herein is whether appellee had notice of the 1928 county court order or had knowledge of such facts as would put her on notice.” Since it is not contended by appellant that appellee had actual notice of said court order (in time to file a claim for damages), the decisive question therefore becomes: Did appellee have “knowledge of such facts as would put her on notice 1 ’ ’ The trial court held she had no such knowledge and appellant strenuously argues that such holding is not supported by a preponderance of the evidence.

To show appellee did have “knowledge” appellant relies solely on the occurrence of one incident, viz; when appellant rebuilt or reconstructed the existing road across her lot in 1928-1929 it moved the dwelling north several feet off the right-of-way which had been condemned the year before. It is conceded by both sides that if the house was so moved it constituted constructive notice to the owner of the lot. It is pointed out that appellee bought the house and lot from Copeland in 1930, and it is conceded’ that notice to the vendor would be notice to appellee.

Appellant relies on George Lewis who testified, in substance: I worked for appellant for thirty four years but am now retired; in 1928 I was resident engineer in the district which included the job here involved; I recall the construction in the vicinity of Bellefonte and I know where the Copeland house was in 1928; in 1929 the contract called for the house to be removed; this particular house was moved off the right-of-way; I recall that Eagle Starkey (deceased) moved the house— they pulled it back 20 or 30 feet; we put a gravel surface on the road in 1929;. we moved this house so we could build a dump for a (two lane) bridge; we moved something like 300 or 400 houses, and I remember practically everyone of them; construction on this job began is 1928, more than a year before I left in 1929. Appellant also introduced in evidence, as “Exhibit 3” what appears to be a plan or plat of the proposed construction. On it there appears to be a house, located partly on the right-of-way. Near it are these words: “To be removed

On behalf of appellee the following testimony (in substance) was introduced. Appellee-. I am 71 years old; I bought the property in question from J. Y. Copeland in 1930—my husband died in 1937; the house on the lot burned down, after we bought it, between 1930 and 1936; after the house burned we built the present house in 1936; I didn’t know that appellant was claiming a right-of-way across my yard until it took out some trees about three weeks ago; the road was completed when we bought the house in 1930; the foundation of the old house is still visible and is about seventeen feet south of the present house; the old house stood on the original foundation until it burned. Perry Dees-. I am fifty six years old and have lived in the vicinity of Bellefonte all my life; at the present time I live next door to appellee, and I have been familiar with her property all my life; I have never seen appellant exercise ■ any control over any of her property; there were shade trees there until' appellant pulled them up three weeks ago; appellee’s old house rested on the old foundation until it burned in 1932 or 1935. Mrs. Keeler-. I have lived in Bellefonte fifty eight years; my house is in sight of appellee’s house; The old foundation is seventeen feet south of appellee’s present house; the old house stood on that old foundation until it burned around 1933.

Among other things, the trial court said it could not find from the evidence that appellant moved the house or caused it to be moved, especially since the burden was on it to do so. Likewise we are unable to say such finding is not supported by the weight of the evidence. There is positive testimony by three witnesses that the old foundation is still plainly visible some seventeen feet south of the present house, and that the old house remained on the old foundation until it burned. For the reasons fully set out in the case of Little v. Holt, 229 Ark. 627, 318 S. W. 2d 157 we feel that, in a close case, the trial court is in a better position than we are to evaluate the weight of the witnesses’ testimony.

Appellant says the trial court erred in overruling its Motion to strike misjoined parties—plaintiff and misjoined causes of action. We deem it unnecessary to discuss this point at length. In the first place we do not find any such motion was filed as to the intervention of appellee. Furthermore there is no contention appellant has been prejudiced in any way in this particular case.

What we have said, of course, is without prejudice to appellant’s right to raise the same point in future litigation.

Affirmed.


author: Jim Johnson, Justice.

text:
    Chambers v. Younes, Adm'r
    5-3783
    399 S. W. 2d 655
    Opinion delivered March 7, 1966

      Fitton & Meadows, for appellant.

      N. J. Henley, for appellee.
   Jim Johnson, Justice.

This appeal is from denial of a petition to set aside probate of a will.

On September 24,1962, Boyd Buff died leaving surviving his wife, no issue, three brothers and a sister. After his funeral Mrs. Buff found in his wallet a blank check on the back of which was written a purported holographic will. On March 13, 1964, Modene Buff, the widow, filed a petition in Searcy Probate Court for admission of the instrument to probate as a will, nominating appellee Bex Younes as administrator with will annexed. On March 14th the instrument was admitted to probate and letters of administration issued to appellee on March 19, 1964.

On September 11,1964, appellant Lois B. Chambers, sister of decedent, filed a petition to set aside the will on the grounds that (1) on its face it was not a valid holographic will, (2) it did not show a valid intent to make a will, and (3) that it did not show it was executed with the lawful testamentary intent, and prayed for dismissal of probate and distribution of the estate according to the laws of descent and distribution. Decedent’s three brothers did not join in this contest.

At trial the court admitted extrinsic evidence in support of the will over the objection of appellant. From the decree of May 12, 1965, finding the instrument to be a valid holographic will and the last will and testament of Boyd Buff, and dismissing appellant’s petition, comes this appeal.

Appellant has prefaced her argument with the statement that it is not disputed that the words written on the instrument were in the handwriting of the decedent, nor is it disputed that the handwriting was proven in accordance with the applicable statute on proving halo-graphic wills, and further, there is no question of competency or undue influence.

The instrument in controversy reads simply as follows :

“I Boyd Buff request that all I own in the way of personal or real estate property to be my wife Modene.
“Boyd Buff”

The statute on holographic wills is Ark. Stat. Ann. § 60-404 (Supp. 1965):

“Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting •witnesses to such will.”

The statute on testimony to prove a will is Ark. Stat. Ann. § 62-2117 (Supp. 1965) :

“A will shall be proved as follows: . . .
“b. A holographic will:
“By the testimony of at least three credible disinterested witnesses proving the handwriting and signature of the testator, and such other facts and circumstances as would be sufficient to prove a controverted issue in equity. ’ ’

For reversal appellant urges that the trial court erred in admitting extrinsic evidence to prove testamentary intent.

This precise question has not been directly answered by this court in any of the multitude of cases on Arkansas holographic wills. A section in 94 C.J.S., Wills, § 203, p. 1038, however, discusses our holdings and reflects our persuasion:

“Testamentary intent is necessary to the validity of a holographic will. [Smith v. Nelson, 227 Ark. 512, 299 S. W. 2d 645; Barnard v. Methodist Church of Mena, Arkansas, 226 Ark. 144, 288 S. W. 2d 595.] No particular words are necessary to manifest the animo testandi; thus, the paper need not refer to itself as a will .... The fact that the holographic instrument concerns itself with matters other than the disposition of property will not nullify its effect as a will, but it may be considered in determining the intent of the writer [Cartwright v. Cartwright, 158 Ark. 278, 250 S. W. 11.] Inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt.” [Emphasis ours.]

Review of our cases clearly indicates that our courts have customarily admitted extrinsic testimony to establish. testamentary intent, without considering whether the statute on proof of a holographic will 62-2117, supra) expressly permits such testimony. Perusal of Arendt v. Arendt, 80 Ark. 204, 96 S. W. 982, and Weems v. Smith, 218 Ark. 554, 237 S. W. 2d 880, and the letters therein held to be valid holographic wills, it is apparent that extrinsic testimony was necessary to fortify the finding of existence of testamentary intent. We think this is proper. As was said in Arendt v. Arendt, supra:

“This will is in the form of a letter from William Arendt to his wife. But, to quote the language of a distinguished author, ‘the law has not made requisite to the validity of a will that it should assume any particular form, .or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and if this appear to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded.’ 1 Jarman on Wills (6 Ed.) 21; Whyte v. Pollack, 7 Appeal Cases, 409.”
“There are many decisions that illustrate this rule of law. The Supreme Court of California held that a writing in the following language was a will, and admitted.it to probate: ‘Dear Old Nance, I wish to give you my watch, two shawls and also five thousand dollars. Your old friend, E. A. Gordon.’ Clarke v. Ransom, 50 Cal. 595.
So the Supreme Court of North Carolina held the following unattested writing to be a will: ‘It is my wish and desire that my good friend and relative, Dr. Joseph B. Outlaw, have all my property of every description. David Outlaw.’ Outlaw v. Hurdle, 1 Jones, Law, 150. The same court in a much more recent case held that a letter from the testator to his sister, in which he said: ‘If I die or get killed in Texas, the place must belong to you and I would not want you to sell it,’ was a valid will. Alston v. Davis, 118 N. C. 202.
“There are many other cases to the same effect. Webster v. Lowe, 107 Ky. 293; Jackson v. Jackson, 6 Dana, 257; In Succession of Ehrenberg, 21 La. Ann. 280, 99 Am. Dec. 729; Sullivan’s Estate, 130 Pa. St. 342; Byers v. Hoppe, 61 Md. 206; Cover v. Stem, 67 Md. 449; Gardner on Wills, page 69.
“The evidence proves that William Arendt was sincerely attached to his wife, and the language of this letter to her, written under the shadow of impending death, shows, in our opinion, that it was testamentary in character and intended to direct the disposition of his property after his death, and we are of the opinion that the circuit court properly so held.”

Appellant’s second point urged for reversal is that the instrument, on its face, fails to show that it was testamentary in character and executed with testamentary intent. Our ruling on the first point, i. e., that inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt, disposes also of this point.

Appellant’s final point is that the evidence of the circumstances surrounding the execution of the instrument is insufficient to show that the instrument was testamentary in character or that it was executed with the necessary testamentary intent. The probate court found decedent had a serious coronary condition which he knew about, and was aware that his life might be terminated on pretty short order, that the parties had been married for many years, had no children, lived together and got along well, the decedent’s wife Avas the natural object of his bounty, and that the will was executed Avithin a fairly short time prior to his death folloAving another severe heart attack, and, finally, that the instrument was the valid and last will of decedent. Review of the record reveals no testimony which fails to support these findings, and judgment of the trial court is therefore affirmed.


author: Frank Holt, Justice.

text:
    Lytal v. Crank
    5-3775
    399 S. W. 2d 670
    Opinion delivered March 7, 1966

      Clifton Bond, for appellant.
    No brief filed for Appellee.
   Frank Holt, Justice.

Appellee brought this action against appellant and Mr. Marvin Coulter for the recovery of property damages resulting from.an automobile collision. Appellee dismissed his complaint against Coulter before the trial. A jury awarded appellee $420.78 and from a judgment accordingly entered comes this appeal.

Appellant contends that the trial court erred in overruling his written demurrer to the evidence since the evidence failed to indicate that any act or conduct of appellant was the proximate cause of appellee’s damages. A written demurrer to the evidence is permissible in chancery and probate cases. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. However, should we treat appellant’s written demurrer as a motion for a directed verdict, he cannot prevail. When one proceeds to introduce proof after the trial court has denied a motion for a directed verdict, the alleged error is -waived if the motion is not renewed at the close of all the evidence. Granite Mountain Rest Home, Inc. v. Schwarz, 236 Ark. 46, 364 S. W. 2d 306; Grooms v. Neff Harness Co., 79 Ark. 401, 96 S. W. 135; and Ft. Smith Cotton Oil Company v. Swift & Co., 197 Ark. 594, 124 S. W. 2d 1. In the case at bar appellant waived the alleged error since he proceeded to introduce proof after denial of his motion which was not renewed'at the close of all the evidence.

Appellant next contends that the damages sustained by the appellee were proximately caused by Coulter and not by appellant. It is true that- the acts and conduct of a defendant must be the proximate cause of any injuriés before a defendant can be liable for the plaintiff’s damages. Gage v. Harvey, 66 Ark. 68, 48 S. W. 898. There we said:

“In determining whether an act of a. defendant is the proximate cause of an injury, the rule is that the injury must be the natural and probable consequence of the act—such a consequence, under the surrounding circumstances of the case, as might and ought to have been foreseen by the defendant as likely to flow from his act; the act must, in a natural and continuous sequence, unbroken by any new cause, operate as an efficient cause of the injury.”

See, also, Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797.

As to the sufficiency of the evidence to sustain a verdict, it is well settled that we must view the evidence with every reasonable inference deducible therefrom in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Jarrett v. Matheney, 236 Ark. 892, 370 S. W. 2d 440; Milner v. Marshall, 238 Ark. 914, 385 S. W. 2d 800. By this rule we proceed to review the evidence in the case at bar.

Appellant, who operates a wrecking yard, was requested by Coulter about 10 o’clock at night to assist him in starting his car which was stalled on a nearby county road. After appellant pushed Coulter’s car a short distance, the ears were turned around and a tow chain attached. According to appellee’s evidence the appellant towed the disabled vehicle from the sloping side-road onto an intersecting, well traveled, state highway where the towing chain came loose from the cars; that the appellant then parked his car facing west on the shoulder of the highway; that Coulter’s unlighted vehicle came to a stop in approximately the middle of the road facing in the opposite direction; that when appellee approached the scene, the appellant’s headlights blinded him to such an extent that he could not see Coulter’s unlighted and disabled vehicle in time to avoid a collision; that when appellee passed where appellant was standing by his parked car the appellant made no attempt to stop or warn him of the presence of Coulter’s disabled vehicle.

Appellant offered a conflicting version. According to him the tow chain came loose when he stopped at the highway intersection; that he drove his unattached car across the highway and parked it about 70 feet from the intersection; that after a motorist passed the scene, Coulter released his brake and “rolled” down the incline onto the highway where his lighted vehicle stopped facing the opposite direction from appellant’s car; that one motorist passed the scene safely and then appellee collided with Coulter’s car before it could be removed from the traveled portion of the highway.

On appeal we are concerned with the legal sufficiency and not the weight of the evidence since that is a matter within the province of the jury. Myers v. Martin, 168 Ark. 1028, 272 S. W. 856; Oliver v. Miller, 239 Ark. 1043, 396 S. W. 2d 288. In the case at bar there is substantial evidence, when viewed in the light most favorable to the appellee, to support the jury’s verdict.

Affirmed.


author: Osro Cobb, Justice.

text:
    Herford v. Scales
    5-3814
    399 S. W. 2d 653
    Opinion delivered March 7, 1966

      Jolm D. Eldridge, for appellant.

      W. J. Dungan and James F. Daugherty, for appellee.
   Osro Cobb, Justice.

This suit involves title to a 40-acre tract of land in Woodruff County.

It was stipulated in the trial court as follows:

(a) That P. A. Randall acquired said land by deed from T. T. Bateman on August 9, 1917.

(b) That P. A. Randall was married three times.

(c) That appellants are children of P. A. Randall by his first two marriages.

(d) That the third marriage of P. A. Randall was to Mollie Scales in 1931.

(e) That appellees are the children and legal heirs of Mollie Scales Randall by a prior marriage.

(f) That both P. A. Randall and Mollie Scales Randall died intestate, P. A. Randall expiring on February 24, 1944, and Mollie Scales Randall expiring in June, 1964.

(g) That state, county and school taxes in the amount of $88 were not paid for the year 1930 by P. A. Randall, owner, and said lands were thereafter forfeited to the state and title of the state thereto was confirmed by decree of the Woodruff County Chancery Court of May 10, 1937.

(h) That on October 1, 1937, P. A. Randall and Mollie Scales Randall, for a consideration of $40, purchased from state Deed No. 63183 covering said 40 acres of land, same reciting that said sale had been made under the provisions of Act 129 of 1929 and setting forth both of said purchasers as grantees.

The dispute between the parties arises out of the contention of appellants that the sale of said lands by the state was in reality a mere redemption by an owner of tax-forfeited lands.

The trial court, however, entered a decree accepting the contention of appellees that the conveyance from the state to P. A. Randall and Mollie Randall was a sale vesting them with title by the entirety; that upon the death of P. A. Randall all of said title and ownership vested in Mollie Randall, and upon her death intestate title passed to her heirs at law, appellees. Claims of appellants were therefore dismissed for want of equity.

On appeal the sole question presented is whether the deed from the state in October, 1937, was a sale of or redemption of tax-forfeited lands. We have concluded that it was a sale and that the decree of the Chancery Court was therefore correct. We enumerate some of our principal reasons in support of this conclusion:

1. The state deed conveyed to P. A. Randall and Mollie Randall, as tenants by the entirety, it being noted that the latter grantee did not have any vested interest in the land at time of forfeiture.

2. The deed was for a consideration of $40. Taxes due amounted to $88. A redemption clearly contemplates payment of taxes due at time of forfeiture; indeed we know of no statutory provision authorizing redemption as such for less than the taxes due and owing. See Vandergrift v. Lowery, 195 Ark. 257, 111 S. W. 2d 510.

3. Act 129 of 1929 [Ark. Stat. Ann. §§ 10-901, -902 (Repl. 1956); Ark. Stat. Ann. §§ 84-1122, -1227 (Repl. I960)], under which the state conveyed its title, is wholly devoted to the subject of sales of tax-forfeited lands, containing no provision as to redemption of said lands.

4. Section 9 of said Act declares an emergency because of much land being forfeited to the state and loss of taxes thereon and need of funds from sales thereof.

5. This statute authorized the public, without excluding former owners, to purchase lands held by the state as a result of tax forfeitures. There were no limitations expressed or implied as to such purchasers. We find ho problem as to the intent of the act, same being to authorize sales by the state of tax-forfeited lands to all and sundry purchasers. Appellant has produced no case suggesting a different construction of the. intent of said Act 129. Indeed most of the case authorities cited by appellant pre-date the passage of the act.

. There are many situations where the purchaser at a tax sale from the state does not acquire title; We have uniformly held that persons under a duty to others in connection with the payment of taxes due and payable upon realty cannot default in performance of said duty, thus .causing a tax forfeiture, and thereafter purchase at tax sale and strengthen their title, if any, thereby. In such situations the purchase assumes the nature of a. tax redemption with credit against the taxes due for the payment made at the sale, and the title remains exactly the, same as it existed at time of forfeiture. For example, we have held:

Life tenant cannot obtain the remainderman’s interest by tax sale. Galloway v. Battaglia, 133 Ark. 441, 202 S. W. 836.
A tenant in common cannot obtain the interest of cotenant by purchase at tax sale. Cocks v. Simmons, 55 Ark. 104.
Mortgagor cannot cut off mortgagee. Zimmerman v. Franklin County Savings Bank & Trust Co., 194 Ark. 554, 108 S. W. 2d 1074.
Party in possession cannot acquire title by permitting to sell for taxes and buying thereafter. Roberts v. Miller, 173 Ark. 38, 291 S. W. 814; Findley v. Tyler, 227 Ark. 663, 300 S. W. 2d 598.
Party in possession under color of title who permits it to be sold for taxes acquires no title by purchase of tax deed. Guynn v. McCauley, 32 Ark. 97. One in possession of land under a claim of ownership will not be permitted to strengthen his title by permitting the land to be forfeited for taxes and buying at a tax sale. Wade v. Goza, 99 Ark. 543, 139 S. W. 639. Agent of owner purchasing in own name at a tax sale merely effected redemption for owner and acquired no title. Patterson v. Miller, 154 Ark. 124, 241 S. W. 875.

The principles announced in the foregoing cases are in no way disturbed and are not here involved.

Pinkert v. Williamson, 225 Ark. 834, 287 S. W. 2d 8, is strikingly similar to this case as to a purchase of lands forfeited to the state and we quote therefrom:

“. . . Appellant insists that when appellee’s father obtained his deed from the State in 1937 he was, in effect, redeeming the land from a forfeiture for the non-payment of taxes; that a purchase of tax-forfeited land from the State by one who owned the land at the time of its forfeiture amounts to a redemption. This would be true in some circumstances, such as where there is a remainderman, but that situation does not exist here. Moreover, the father of the appellee was not the only purchaser from the State; appellee’s mother was also a grantee, the result being an estate by the entirety. Prior to the purchase from the State, the mother had owned no interest in the land, but she acquired an interest in the 1937 deed from the State. Through the death of her husband, her estate by the entirety ripened into sole ownership, subject, of course, to any intervening divestiture.”

The real issues in the Pinkert case, supra, were related to color of title and adverse possession asserted as to unimproved lands, but that portion of the opinion relating to the purchase of tax title from the state in the name of the forfeited owner and his wife creating an estate by the entirety is directly applicable to this case.

The decree of the Chancery Court is affirmed.


text:
    Walker v. State
    5188
    399 S. W. 2d 672
    Opinion delivered March 7, 1966
    [Rehearing denied March 28, 1966.]

      Bon McCourtney, Claude B. Brinton and Joe F. Atkins, Jr., for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. General, for appellee.
   Osro Cobb, Justice.

Appellant was tried and convicted of the offense of grand larceny and now on appeal urges the following points for reversal :

Point 1: Insufficiency of the evidence and inadmissibility of some of the evidence.
Point 2: Proof made as to other convictions.
Point 3: Refusal of the trial court to permit witness Kenneth Anglin to testify for appellant after appellant had rested his defense.

Point 1: Insufficiency of the evidence and inadmissibility of some of the evidence.

Within a period of approximately two hours from the time of the report of this crime, appellant was intercepted in his truck by officers who were given permission by appellant to search his truck, and they found ten guns and a radio-record player which were subsequently identified as part of the items stolen. The large quantity of arrowheads that had been stolen along with the guns was not found in appellant’s truck. However, after appellant was released on bond, he went to Campbell, Missouri, where he represented himself as Billy Wilson to a Dr. W. A. McGuire, to whom he sold approximately 2,000 arrowheads for the sum of $250. The check in payment for the arrowheads was offered in evidence as State’s Exhibit No. 20 and was endorsed “Billy Wilson” and then “Billy Walker.” Dr. McGuire appeared and personally testified at this trial and identified appellant. Appellant testified in his own behalf and admitted the sale of the arrowheads, although contending that they belonged to him. He offered no explanation as to his false representation to Dr. McGuire as to his true name.

Appellant at all times insisted upon his innocence of the crime; that he had purchased the guns and the radio-record player for $50 from a man named Kerby Jamison at Bob King’s place, a night club, about seven or eight miles north of Swifton. When appellant testified, he denied that he had asked any of his friends and acquaintances to state to the officers engaged in the investigation that they knew Kerby Jamison. On rebuttal, witnesses Bobby Kinder and Delon Sullivan testified that appellant came to them and tried to get them to agree to tell Sgt. Kenneth Bean that they knew Kerby Jamison, when in truth neither witness knew such a party. There was evidence in the case that the stolen guns alone were worth several hundred dollars, as compared to the $50 appellant claimed he paid for same and the radio-record player. The evidence also developed that appellant had at one time actually lived in the building where the offense was committed and was therefore fully familiar with same and the locality in general.

Appellant was observed at an auction in Walnut Bidge around 7:00 p.m. on the night of the crime when Bobby McKnight, the victim, and his wife arrived and appellant spoke to them. Appellant left the auction shortly thereafter, knowing that McKnight and his wife were both away from their home and place of business.

The evidence in this case was sufficient in every respect to make a case for the jury against appellant, and the trial court properly overruled appellant’s motion for a directed verdict because of the insufficiency of the evidence.

Appellant complains that the rebuttal testimony of witsess Kinder and Sullivan was improperly received. This testimony directly contradicted appellant’s testimony as to a fact and not as to his reputation and was proper in every respect as rebuttal evidence. Furthermore, appellant failed to preserve his motion for a directed verdict by renewing same at the conclusion of all the evidence in the case. There is ample authority that such a failure amounts to a waiver. See Reeves v. State, 222 Ark. 77, 257 S. W. 2d 278; Prosser v. United States, 265 Fed. 252 (8th Cir. 1920).

Point 2: Proof made as to other convictions.

Counsel for appellant, on direct examination of appellant, elicited that he had been previously convicted of a felony. On cross-examination, appellant admitted that he had suffered not one but two previous felony convictions. In its case in chief, the State offered no proof whatever relating to any prior conviction of appellant. Moreover, the court in its Instruction No. 15, to which no objection of any kind was interposed by appellant’s counsel, clearly limited admissions of appellant as to such prior convictions to his credibility as a witness. Appellant was fortunate, indeed, in that the State had not charged, in its original information against him, the previous convictions. Had that been done, the penalty upon conviction of appellant in this case could have been substantially increased. Ark. Stat. Ann. § 8-43-2328 (Repl. 1964).

Appellant invites our attention to Henson v. State, 393 S. W. 2d 856. In that case, the defendant was on trial for the offense of rape and the State produced two young women, other than the main prosecuting witness, who testified that on entirely different occasions from the one involved in the case on trial they had been raped by the defendant. This was not proof of previous convictions but related only to accusations by the witnesses and was highly improper and constituted reversible error. In this case the testimony as to previous convictions of appellant came directly from appellant’s own admissions after he voluntarily took the stand.

Appellant invites onr attention to Miller v. State, 239 Ark. 836, 394 S. W. 2d 601. In this case the defendants did not testify and the court, over the objection of counsel for the defendants, gave an instruction as to the privilege of defendants to testify or to decline to testify. The prosecuting attorney argued the instruction to the jury, forcefully calling to the attention of the jury the failure of the defendants to testify. This also was clear reversible error, and we so held. We see no application of our holding in Miller v. State to the facts in this case.

Contentions of appellant as to the evidence concerning his previous felony convictions are without merit.

Point 3: Refusal of the trial court to permit loitness Kenneth Anglin to testify for appellant after appellant had rested his defense.

The first witness called by the defense was a man by the name of Larry Buchanan, who testified that he was at Bob King’s night club between 10:00 and 11:00 p.m. on the night that appellant was arrested and was outside the place talking to appellant when a guy unknown to him came up and asked appellant if he wanted to buy some stuff and appellant said, “I will buy anything, let me see it.” (Tr. 65). According to Buchanan, they went to a car which contained several guns and after some negotiations appellant bought the guns at $5 apiece. When asked about the record player that had been stolen, Buchanan stated that he did not know anything about it. The witness further testified that the transactions were made in the dark with the help of a flashlight. Buchanan identified no other persons by name who were present at the time of the negotiations about the guns.

Appellant testified that, in addition to Buchanan, two of his friends, Carl Wilson and Kenneth Anglin, were with him at Bob King’s night club, and that Wilson was in Kansas City on the date of the trial and Anglin in St. Louis with a broken-down truck. Anglin was under subpoena to testify as a Avitness for the appellant.

At 4:20 p.m. on the day of the trial, the defense rested its case Avithout any qualifications or reservations. The court re-convened at 9:00 a.m. the folloAAdng morning, and counsel for appellant stated that Avitness Anglin had arrived and Avas in court and Avas ready to testify, and asked the court to re-open the case and permit the witness to testify. It Avas represented to the court that Anglin Avould testify that he was present on the night of March 27, 1965, AAdien appellant purchased nine guns and a record player and that he actually helped unload the guns and place them in the pickup truck of appellant, at which motion the court responded as folloAvs:

“Let the record sIioav that at approximately 4:20 p.m. October 5, 1965, both sides, the State and the Defendant, announced Avithout reservation that their respective sides had rested, or such announcements came in proper turn or in due course at or before said time, and it Avas announced to the jury and to the attorneys that the evidence having been concluded and in aúgav of the lateness of the hour or time, the jury would report back at 9:00 a.m. this October 6, 1965, when Instructions Avould be commenced and arguments of counsel had and the case finally submitted to the jury, and at this time the Court overrules the Defendant’s Motion to re-open the testimony. ’ ’

Under the circumstances of this case, the motion to reopen the case addressed itself to the sound discretion of the trial court, and the action of the court in such a matter will not be disturbed unless there is a clear abuse of discretion. Kesterson v. State, 190 Ark. 518, 79 S. W. 2d 430. Moss v. Adams, 32 Ark. 562. The testimony of Avitness Anglin, had he been permitted to testify as outlined by statement of counsel, Avould have been cumulative to what appellant and witness Buchanan had already related to the jury. A trial court has the discretion during the progress of the trial to limit the number of witnesses whose evidence is cumulative, even though the case involves a capital offense. McGarrah v. State, 217 Ark. 186, 229 S. W. 2d 665. We conclude that the trial court did not clearly abuse its discretion in refusing to re-open the case is order to permit the witness Anglin to testify.

Having found all of appellant’s contentions to be without merit, the judgment of the trial court is affirmed.


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    Farrar v. State
    5191
    400 S. W. 2d 289
    Opinion delivered March 14, 1966
    [Rehearing denied April 4, 1966.]

      Bon McCourtney, Claude B. Brinton and Scott Hunter, for appellant.

      Bruce Bemiett, Atty. General; Fletcher Jackson, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Robert Farrar, appellant herein, shot Laurence Staudt on May 4, 1965, and was convicted by a jury of assault with intent to kill. Punishment was fixed at three years imprisonment, and from the judgment so entered, appellant brings this appeal.

It is first asserted that the verdict was not supported by substantial evidence, but we do not agree. The proof reflects that the two men owned adjoining farms, and that, during the day, they had “words” over a drainage problem occasioned by Staudt’s rice water draining off through Farrar’s property. According to Staudt, appellant said, “I have got a wa.y of stopping this.” Both men were drinking during the day. Subsequently, Staudt testified that Farrar asked him to drive him over to the house, and Staudt complied, telling an employee, Gerald Goodwin, to follow them over to Farrar’s home. The prosecuting witness stated that after they had arrived, he (Staudt) told Farrar that the latter needed to sleep for several hours, and suggested that he drink a can of beer. Appellant told the witness that there was a can in the refrigerator, and Staudt opened the refrigerator door, squatted, and took the can of beer out. On hearing a click behind him, he turned his head, and saw that Farrar had a shotgun leveled at him. “Had it pointed right in my face, when I saw it I pushed up, instead of hitting me in the head, hit me, shot me in the abdomen.” The witness said that Farrar was about eight feet away when he fired the gun. According to his evidence, he had no weapon of any kind, had not fought with Farrar, and had done nothing to the appellant. Counsel argues that appellant was too drunk to form an intent to kill; further, that there was no evidence to explain why the shot was fired, and that the two men had not even had sufficient trouble to cause a fist fight. These arguments are contrary to the proof. As for motive, the jury could well have found that Farrar was extremely angry over the fact that Staudt was again going to plant the field adjoining his (Farrar’s) property in rice, and the testimony reflects that he twice said, “I know a way of stopping it.” Staudt’s testimony related other remarks made hy Farrar on the way to the house, which indicated anger. While both men were drinking, it certainly was not established that Farrar was too drunk to form an intent to kill. In fact, appellant vigorously denied drunkenness, and detailed his version of all that had happened during the day up until the shooting. Farrar stated that after Staudt -had made some belligerent remarks, including, “No two bit farmer is going to stand in my way,” he grabbed appellant around the neck, and said, ‘ ‘ Stay away from that woman or I am going to break your damn neck; ” he broke away, and Staudt turned, went into the kitchen, and then started hack. Appellant said he saw something in Staudt’s hand, and he grabbed his gun, which was standing by the roll-aAvay bed. Farrar stated that the gun accidentally discharged. Accordingly, it seems that he somewhat combines two defenses, self-defense, and accidental shooting. Staudt was taken to the hospital hy Goodwin, who had remained on the outside.

Sheriff Lonnie Cooper testified that Farrar did not mention any weapon held hy the victim, and had said that there had not been any trouble. Dr. Paul Stroud, a physician of Jonesboro, who was present at the hospital when Staudt was taken there, testified that he found “a wound in the omentum, which is a fat pad over the intestines, protruding over here in the abdomen and some loops, some of the intestines were protruding through.” The doctor performed surgery, and found that the abdominal wall was damaged; that the shot and wadding-had lodged under the sacrum hone at the lower part of the abdomen and the bladder; the bladder was shredded and “torn up extensively.” Puncture wounds were also discovered in the large bowel, and a portion was removed. Small parts of the bladder were also removed. Dr. Stroud testified that the shot could have killed Staudt.

It was within the province of the jury to determine the true facts in the case, and certainly, there was substantial evidence to support the verdict. The facts and circumstances of the assault, as related by Staudt, indicated an intention by Farrar to kill the prosecuting witness, or to cause great bodily harm. The weapon used, a 12-gauge shotgun, and the extent of wounds on the body, together with the state of feeling existing between the parties prior to the difficulty, were all matters to be considered by the jury. Davis v. State, 206 Ark. 726, 177 S. W. 2d 190.

It is next contended that the court erred in permitting the state to introduce the shirt, pants, and underwear that had been worn by Staudt at the time of the assault. In a long line of cases, we have held that the introduction of these items, and others similar thereto, is within the sound discretion of the court, and certainly this evidence was helpful in indicating to the jury the location of the wounds, and was clearly relevant to the issue being tried.

It is also urged that the court erred in permitting Dr. Stroud to testify as to the nature of the wounds. Of course, the location of the wounds, and evidence relating to whether such wounds could have caused death are most pertinent to the charge of assault with intent to kill, and the testimony also could assist the jury in determining which version of the shooting was correct.

It is not exactly clear just what'is meant, by the last point raised by appellant. He calls it “impeachment of defendant.” The appellant offered three character witnesses, who testified as to his general good character. The state questioned two of these witnesses relative to whether they had knowledge of a fight appellant engaged in at the Boot Heel Cafe. Their answer was in the negative, bnt at any rate, there was no objection to the testimony at all. The state then called as a witness Willie Q-. Brown, brother-in-law of appellant. In making inquiry as to Farrar’s reputation in the community, Brown was asked as to appellant’s reputation for sobriety. The answer Avas, “Well, to my knowing, Booth [appellant] has drank right smart. * * * I Avould call him an alcoholic.” Counsel for appellant objected, and the court sustained the objection. The witness subsequently said that he Avas not familiar Avith the general reputation of Farrar in the community. Of course, the objection was sustained, and the court accordingly disallowed the testimony, though had it been otherwise, the testimony Avould seem to have tied in Avith appellant’s defense, heretofore mentioned, that Farrar Avas too drunk at the time of the shooting to form an intent to kill.

Finding no reversible error, and it appearing that appellant received a fair trial, the judgment is affirmed.

       Appellant took this remark to refer to the drainage dispute.

      Farrar stated that the reason he kept the gun loaded was “on account of dogs getting in the geese.”


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    Ark. Cast Stone Co. v. Lynn
    5-3806
    400 S. W. 2d 272
    Opinion delivered March 14, 1966

      Spitzberg, Bonner, Mitchell & Hays, By: Allan W. Horne, for appellant.

      H. M. Ellis, Bon McCourtney and Joe F. Atkins, Jr., for appellee.
   Ed. F. MoFaddin, Justice.

Appellee-plaintiff, John Lynn, filed this action against appellant-defendant, Arkansas Cast Stone Company, Inc., seeking damages for personal injuries sustained when a large panel or slab of concrete fell. The case was submitted to the jury on the theory of res ipsa loquitur, so that the burden of disproving negligence was placed on the defendant. The jury verdict was for the plaintiff, and from the judgment on the verdict there is this appeal, with only one point urged, which is that the Trial Court should not have submitted the case to the jury on the rule of res ipsa loquitur.

In June 1963 Garbi and Joseph Construction Company, as the general contractor, was building the United States Post Office in Paragould. Precast concrete panels or slabs, manufactured by defendant, Arkansas Cast Stone Company, were to be used in the construction. The panel here involved was 14 feet 10 inches long, three feet nine inches wide, and three inches thick, and weighed about 2800 pounds. The defendant delivered a number of panels to the job site at Paragould by its truck; and each panel was to be separately lifted from the truck by a cable operated from a power crane and then lowered into the place where it could be attached to and become a part of the wall of the building. Because of the size and weight of the panel, and for the purpose of handling it, defendant had placed in the top of each panel two tyloops and two eyebolts, one being about 12 inches from one side, and the other a like distance from the other side. The tyloops were imbedded in the concrete panel at the time of manufacture; and in each tyloop there was screwed an eyebolt. While the panel was in defendant’s truck, the employees of the general contractors tightened the eyebolts, and the cable ends of the short cable were attached to each eyebolt; the short cable was attached in the center to the long cable from the power crane; the panel was thus lifted into the air from the truck; and the power crane carried the swinging panel through the air to the desired location to be fastened to the building.

On the morning in question, plaintiff John Lynn was an iron worker of Garbi and Joseph Construction Company; he had assisted in tightening one of the eyebolts into the eyeloop of the panel; had then gone to his assigned place of work; and was standing at the proper place on a scaffold 12 or 15 feet above the ground, waiting for the panel so hoisted to be lowered to the correct position for fastening to the building. The panel fell on the scaffold, breaking it, and dashing plaintiff Lynn to the ground and causing serious, painful, and perhaps permanent injuries. One of the tyloops on the particular panel had evidently pulled out from the panel.

Lynn filed this action against the Arkansas Cast Stone Company, claiming that it had been negligent in the construction of the panel in installing the tyloop or the use of an inferior eyebolt. The complaint alleged:

‘ ‘ The Plaintiff further alleges that the concrete slab herein referred to is of special design and construction, both as to the materials used and the methods employed in constructing,- fabricating and producing the slab; that the metal anchor built into the concrete is of special design and construction all of which is known only to the Defendant; that because of this the Plaintiff is in no position to set forth specific acts of negligence on the part of the Defendant but states that examination of the slab, the metal anchor and component parts of it after the accident indicated defects of manufacture and construction and that the Defendant should be required to set forth and explain why the anchor in the slab came loose from the concrete housing and why the concrete of which the slab was constructed did not hold together; that the very fact of the anchor’s failure to hold, and the concrete’s failure to remain intact at the poiid --'-here the anchor was set into it is prima facie evidence of defective construction and negligence on the part of the Defendant.”

The plaintiff tried his case on the basis of res ipsa loquitur: that is, that the burden of disproving negligence rested on the defendant because the panel had been constructed by the defendant, and it had installed the tyloops and furnished the eyebolts, and it knew what it had done. In other words, the mishap itself speaks: that is the rule of res ipsa loquitur. Or, as we stated in one case: “To paraphrase * * * * , is to say that when a product is made by a defendant for a recognized use, and the plaintiff so uses the product and without fault or negligence on his part receives injury, then the mishap itself speaks negligence and the burden is on the defendant to show itself free of negligence.”

The plaintiff’s witnesses testified that the panel fell because either (a) the tyloop pulled out of the panel, or (b) the concrete broke from around the tyloop; and so the plaintiff insisted—and the Trial Court held—that the burden was on the defendant, Arkansas Cast Stone Company to disprove negligence in constructing the panel and installing the tyloop. But one of the essentials of the applicability of the rule of res ipsa loquitur was stated and emphasized by us in Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S. W. 2d 885, where we quoted from 38 Am. Jur. 996, “Negligence” § 300:

“ ‘It is essential to the application of the doctrine of res ipsa loquitur that it appear that the instrumentality which produced the injury complained of was at the time of the injury under the management or control of the defendant or of his agents and servants. When, however, it appears that the victim had exclusive control of the offending thing, no imputation of responsibility will attach to the defendant. It is not only necessary to show that the offending instrumentality was under the management of the defendant, but it must be shown that it proximately caused the injury, or that the injury was caused by some act incident to the control of the instrumentality. The doctrine does not apply where the agency causing the accident was not under the sole and exclusive control of the person sought to be charged with the injury. If it appears that two or more instrumentalities, only one of which was under defendant’s control, contributed to or may have contributed to the injury, the doctrine cannot be invoiced.”

In the case at bar, Arkansas Cast Stone Company delivered the concrete panels to the job site at Paragould on its own truck. There, the employees of Garbi and Joseph, general contractors, took control of the concrete panels. One such employee was the plaintiff, John Lynn. These employees of Garbi and Joseph (a) tightened the eyebolts into the tyloops, using a wrench for that purpose; (b) attached one end of the short cable to one eye-bolt and the other end of the short cable to the other eyebolt; and (c) used no spreader on the short cable to keep it from pulling sideways on the eyebolts as the panels were lifted.

When the defendant delivered the panel to the job site and the employees, of Garbi and Joseph took charge of it, then the control of the defendant ceased. The screwing in of the eyebolts, the attaching of the short cable to the eyebolts, and the failure to use a spreader on the short cable, were matters which occurred to the panel after it had left the control of the defendant. It was admitted by the plaintiff that he used a wrench to screw the eyebolt down into the tyloop; and one witness for the defendant stated that such tight screwing of the eyebolt could weaken the concrete. It was also testified by a witness for the defendant that when a short cable is attached to the eyebolts, as here, then a “spreader” should be used; and that such spreader should be as wide as the distance between the two eyebolts, so that the pull on the eyebolts would be directly up instead of at an angle. No such spreader was here used.

Thus, there was evidence of improper handling of the panel after it left the control of the defendant; and, in view of such testimony, the plaintiff’s case should not have been submitted to the jury on the theory of res ipsa loquitur. Such evidence as to improper handling of the panel after it left the control of the defendant made inapplicable the rule which put the burden on the defendant to prove itself free of negligence. Such was the holding of this Court in Delta Oxygen Co. v. Scott, supra; and that holding followed many previous cases, some of which are: Pekin v. Burkhardt, 192 Ark. 1025, 96 S. W. 2d 776; Kroger v. Melton, 193 Ark. 494, 102 S. W. 2d 859; Okla. Gas & Elect. Co. v. Frisbie, 195 Ark. 210, 111 S. W. 2d 550; Saunders v. Lambert, 208 Ark. 990, 188 S. W. 2d 633; Williams v. Lauderdale, 209 Ark. 418, 191 S. W. 2d 455; and Ark. P. & L. Co. v. Butterworth, 222 Ark. 67, 258 S. W. 2d 36. 4In short, where substantial evidence is offered by defendant—as here—to show possible harmful effects to the article after it left the control of the defendant, then the plaintiff cannot rely on the rule of res ipsa loquitur, but must go further and offer evidence of the defendant’s negligence.

Thus, in the case at bar, the Court was in error in submitting the case to the jury on the theory of res ipsa loquitur because there was substantial evidence of possible harmful effects to the concrete panel after it left the control of the defendant. But we hold that the cause should be remanded for a new trial at which the plaintiff may offer evidence of defendant’s negligence.

Reversed and remanded.

      The exhibits include a drawing of a panel showing the location of the tyloop and eyebolt; and a tyloop and eyebolt, similar to the ones used in the panel here in issue, were admitted into evidence and come up to this Court as exhibits. There was evidence that in some instances the defendant had placed a small steel rod in the tyloop for added reinforcement; and on cross examination one witness stated that if the reinforcing rod did not rest on the bottom of the tyloop, such might possibly tend to weaken it.

        Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S. W. 2d 885.

      An interesting and informative article is that contained in Ark. Law School Bulletin, Vol. 8, p. 43 (May 15, 1940), entitled, “Res Ipsa Loquitur in Arkansas,” written by Robert A. Leflar and Joe E. Covington. Instruction No. 610 in Arkansas Model Jury Instructions concerns res ipsa loquitur.

      In the bottled drink cases, such as Coca-Cola v. Hicks, 215 Ark. 803, 223 S. W. 2d 762, and Coca-Cola v. Mattice, 219 Ark. 428, 243 S. W. 2d 15, we held that where due care was shown in the handling of bottled drinks until opened, then were was a practical continuation of defendant’s exclusive control over the contents of the bottle up to the time of the injury. Justice Leflar, who, along with Dean Covington, wrote the article in the Arkansas Law School Bulletin (supra), also wrote the Opinion of this Court in Coca-Cola v. Hicks (supra); and in that Opinion there is this language: “The Scope of this permissible inference must be carefully limited to exclude cases where the circumstances of the injury do not tend substantially to prove that negligence in the defendant, and in nobody else, caused the plaintiff’s injury. To make certain that the injury has not been caused by somebody else, through some intervening negligence, it is ordinarily required that the instrumentality causing injury has been in defendant’s exclusive possession and control up to the time of the plaintiff’s injury. That requirement appears to have been satisfied when the plaintiff shows, as in the instant case, that there was no opportunity for the content or character of the charged bottle to have been changed from the time it left defendant’s hands until it exploded.”