author: Carleton Harris, Chief Justice.

text:
    MINI-ART OPERATING COMPANY, Inc., d/b/a CAPRI THEATHRE v. The STATE of Arkansas
    5-6037
    486 S.W. 2d 8
    Opinion delivered October 30, 1972

      Arnold & Arnold and Frierson M. Graves Jr., Memphis for appellant.

      Ray Thornton, Atty. Gen., by: Fred H. Harrison, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

On October 14, 1971, following the filing of a verified petition by the prosecuting attorney under the provisions of Ark. Stat. Ann, §34-101 et seq (Repl. 1962) the Miller County Circuit Court issued an ex-parte order temporarily enjoining the Capri Theatre of Texarkana, the Mini-Art Operating Co., and H. E. Enlow, owner and lessor of the premises, from showing obscene movies and ordering the theatre padlocked pending hearing. After the filing of an answer by Mini-Art Operating Company (d/b/a Capri Theatre) denying the material allegations of the petition, and also the filing of a demurrer after testimony was taken, appellant demurring on the basis that the evidence was insufficient as a matter of law, the court, on November 12, 1971, entered an order granting a permanent injunction. The state had changed its theory from “obscenity” to “aiding and abetting nudism” and the court permanently enjoined appellants from “permitting any conduct of activities which encourages, fosters, glorifies, abets or promotes a nudist colony or camp or place or the practice of nudism”.

On December 14, 1971, another order was issued permitting the theatre to be opened provided no motion pictures aiding and abetting nudism were shown and on January 5, 1972, a nunc pro tunc order was entered directing the sheriff of Miller County to remove the padlock previously placed upon the premises and appellants were permitted to renew the operation of the theatre so long as it did not violate the order mentioned in paragraph one. From that order of the court, appellants bring this appeal. Six points are relied upon for reversal but there is no need to discuss the last five points, though some seem to contain merit, since we have concluded that the order must be reversed under point one.

The order was issued under the provisions of Ark. Stat. Ann. §34-101 which provides inter alia, that the “conducting, maintaining, carrying on, of any nudist camp or club or building or place used to practice nudism, in violation of any of the laws of this state *** are hereby declared to be public nuisances, and may be abated under the provisions of this act.” In rendering its order, the court stated that it took “into consideration the criminal law on accessory or one who aids or abets, or assists”, and apparently relied on the statutes defining “nudism”. This statute, Ark. Stat. Ann. § 41-2709 (Repl. 1964) defines that term as “the act or acts of a person or persons congregating or gathering with his, her, or their private parts exposed in the presence of one or more persons of the opposite sex as a form of social practice.” Section 41-2710 then provides that it is unlawful to advocate, demonstrate, or promote nudism or to permit one’s premises to be used for that purpose. This is an, entirely separate act from §34-101 (the nuisance statdte), and provides a criminal penalty for violation. ^

Of course, the abatement of nuisance statute is penal in nature and accordingly must be strictly construed. Hamilton v. Pan American Southern Corp., 238 Ark. 38, 378 S.W. 2d 652, and cases cited therein. In Davis v. Fowler, et al, 230 Ark. 39, 320 S. W. 2d 938, we pointed out, and emphasized, that where penal statutes are involved “nothing will be taken as intended that is not clearly expressed”. Accordingly, this case must be decided upon the basis of the provisions of §34-101.

Of course, it is at once apparent that the theatre was not used as a “nudist camp or club or building or place used to practice nudism”. It is not contended that any person was practicing nudism; there were no nude people in the theatre; rather, there was a film depicting nude people. To say that the showing of this film comes under the statute prohibiting nudism (41-2709 and 41-2710) and thus constitutes the advocacy of nudism is no more logical than saying that a film shown in an Arkansas theatre which depicts one person striking another constitutes assault in this state. Nor is there any proof by the state that the purpose in showing the film was to promote or encourage a nudist camp. The statute, in prohibiting nudism, prohibits people from appearing nude and conducting a nudist camp — not films of people appearing nude at a nudist camp. While from a moral standpoint, one may be considered as odious and opprobrious as the other, there is a definite legal distinction. Actually, it would appear that the state’s theory that the film promoted nudism and the establishment of camps for nudists was only embraced because the abatement of nuisance statute does not authorize the padlocking of a building because of obscenity within itself.

As pointed out earlier, this statute must be strictly construed. We cannot hold that the legislature intended anything to be done that is not clearly expressed; the statute must be taken “as is”. Under that established rule of law, it cannot be said that the abatement of nuisance statute is applicable.

Reversed.

       The film here in question depicted a beauty contest at a nudist camp.

       The Court mentioned that "obscenity'within itself is not grounds for a padlock order or for permanent injunctive relief, because the statute permitting the padlocking does not allude to obscenity”.

       The trial court stated that it felt that the legislature, by its language, did not intend for nudist camps to be operated, and added “I will go one step further in interpreting what they say, that they do not intend for people to encourage the operation of unlawful nudist camps.”


source: Caselaw Access Project

license: Public Domain

text:
    Delbert TREAT v. STATE of Arkansas
    5769
    486 S.W. 2d 16
    Opinion delivered October 30, 1972

      John B. Driver, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

This is a Rule I case. Appellant, Delbert Treat, was convicted by a jury of the crime of assault with intent to rape on September 24, 1969, and sentenced to fifteen years imprisonment in the Arkansas Department of Correction. Following the jury verdict, appellant entered a plea of guilty to the crime of kidnapping and was sentenced to fifteen years imprisonment, the sentences to run concurrently. On January 17, 1972, appellant sought post-conviction relief and the court set the matter and conducted a hearing. At the conclusion of the evidence, the court denied relief, and from the judgment so entered, appellant brings this appeal. For reversal it is urged that there was a wide variance in the testimony of the prosecuting witness at the original trial and the post-conviction hearing, and a new trial should have been ordered on all issues involved. Further, the court committed error in refusing to let the defendant develop the testimony as to prior chastity of the prosecuting witness on the date in question, and finally, that the plea of guilty to the crime of kidnapping should have been set aside by the court because at the original trial (for rape) the prosecuting witness testified that appellant kept her covered with a gun at all times, and at the post-conviction hearing she testified that this was not true.

Kathy Johns, before marriage, Kathy Rosenberg, testified that she was twelve or thirteen years old at the time of the alleged rape. She said that her testimony at the original trial was not entirely correct, and was given because her mother told her to do so; “Well, she told me to tell what she told me to or else I would be sorry.” The testimony of Kathy at the original trial was not made a part of the transcript and accordingly we do not know the exact differences in her testimony at that trial and her testimony at the Rule I hearing. But it appears that the principal difference was that she originally testified that Treat kept a pistol on her at all times, while in the present hearing, she testified that he only held a gun or her for a short period after she first entered the car. According to the evidence, Treat had picked up Kathy and her older sister (age fifteen) as they were walking along the road and offered them a ride. They sat in the back seat and Treat pulled the pistol and ordered them to get in the front. After driving further, her sister got out of the car but she stayed, being afraid to leave. Kathy testified that she asked him to please put away the gun and he complied. A full discussion of the evidence is unnecessary since the testimony given in the Rule I hearing was sufficient to sustain the conviction. Kathy testified that she had intercourse with Treat twice, and that he did threaten her with the pistol soon after they first entered the automobile. Treat’s testimony is rather indefinite. At one point he stated that he was drinking heavily, and he did not know whether he had sexual relationships with the prosecuting witness, but he subsequently stated that he did have intercourse with her. He admitted drawing the pistol and later telling Kathy to take off her clothes, though he apparently did not have the pistol in his hand at that time. It appears to be the contention of Treat that Kathy consented to the act or acts of intercourse. The strongest evidence along this line came from Kathy’s testimony during the post-conviction hearing. From the record:

“Q. Now, did he force you to remove your clothing, or did you remove them voluntarily or on his request?
A. A little of both.
Q. How do you mean?
A. Well, he was pulling at my bathing suit strap and I was pulling it up but I finally gave up.
Q. Was he threatening you in any way?
A. He said a few times when my sister was there that he would kill us if we tried to jump.
Q. Why didn’t you get out of the car when your sister got out?
A. I was scared. I just didn’t know what to do, so I sat there.”

The evidence also indicated that Kathy did not put up much resistance to Treat. However, aside from the fact that she was a very young girl who normally would not be expected to resist in the manner of an adult, Treat, according, not only to Kathy’s testimony, but to his own, was guilty of the offense of which he was convicted. Ark. Stat. Ann. §41-3401 (Supp. 1971) provides three degrees of rape, first degree, second degree, and third degree. The statute declares one guilty of rape in the third degree when he engages in sexual intercourse with a female less than sixteen years of age and it provides that one is guilty of rape in the second degree when he engages in sexual intercourse with a female less than fourteen years of age (and the offense is committed whether or not the female consents). The punishment for second degree rape is three to twenty-one years imprisonment. Accordingly, the evidence established clearly that he was at least, guilty of an attempt to commit this offense. The penalty for assault with intent to rape is three to twenty-one years imprisonment.

In addition, we have held that recantation by a witness for the state of a portion of his or her testimony does not entitle the defendant to a new trial where such change does not render a different verdict probable, or unless the trial court is satisfied that the recanting testimony is true; further, the granting or denying of a new trial on the basis of newly discovered evidence is largely in the discretion of the trial court and unless the discretion is manifestly abused, the trial court’s action will be upheld, Clayton v. State, 186 Ark. 713, 55 S. W. 2d 88. See also Cooper v. State, 246 Ark. 368, 438 S. W. 2d 681.

It is urged that the court erred in refusing to permit appellant to cross-examine Kathy as to her prior chastity, or lack of it. Appellant argues that sperm was found inside the prosecuting witness, and that since the jury only found Treat guilty of assault with intent to rape, this was an indication that she had had intercourse with some other person just prior to the events herein set out. We do not agree that error was committed. In the first place, there is evidence, as previously set out, of a completed sexual act between the parties. In the next place, Criminal Procedural Rule I was never devised to be used as a substitute for appeal, and this allegation (which incidentally raises no question of violation of a constitutional right), if thought to contain merit, could have been set forth by appeal from the original conviction. In addition, Kathy was placed on the stand in the post-conviction hearing by appellant, and certainly was not a hostile witness.

Finally, it is contended that the court erred in not setting aside the plea of guilty to the charge of kidnapping, it being argued that the negotiated plea of guilty to this offense was brought about by the untrue testimony of the prosecuting witness which had been responsible for his conviction of assault with intent to rape; in other words, if he had not been found guilty by the jury, he would not have entered the plea of guilty. We find no merit in this contention. The record reflects that no complaint was made by appellant concerning his representation and that the attorney who originally represented him explained thoroughly the effect of the plea of guilty to the charge; further, that the attorney, who is incidentally a capable and experienced attorney, also discussed the plea with Treat’s family. The fact that the pistol was not held on Kathy the entire time does not preclude appellant’s guilt on the charge of kidnapping. Admittedly, the pistol was drawn on this young girl who testified that she did not get out of the automobile because she was afraid. We agree with the trial court that the acts mentioned constituted the offense, and though it has no bearing on the legal question involved, it is noted that it was ordered that the sentence given under the plea of guilty was to run concurrently with the sentence rendered in accordance with the jury verdict.

We find no merit in any of the contentions raised.

Affirmed.

       In the post-conviction petition, Treat alleged some constitutional grounds for relief, but those are not included in the points for reversal; for instance, he asserted that he was beaten and threatened if he did not enter a plea of guilty; and that he was made to answer questions without counsel; at the post-conviction hearing however, he stated that he was not beaten, and that this assertion was placed in the petition by a fellow prisoner who prepared it, stating to him (Treat) "that would get me back to court’’.

       “Q. Did he keep the gun out?
      A. Yes.
      Q. Did he hold it on you?
      A. Yes.
      Q. As he drove down the road?
      A. Yes.
      Q. When did your sister get out and why?
      A. We was going to a friend’s house to go swimming and he let her out at the friend’s house.

        Q. Did he still have the gun out then?
      A. Yes.
      Q. Did you want to get out?
      A. Yes.
      Q. Why didn’t you get out?
      A. I was too scared to move.
      Q. Why?
      A. Because I am scared to death of guns.”

       Ark. Stat. Ann. §41-607 (Repl. 1964).


author: George Rose Smith, Justice.

text:
    Robert GELLY et al as Ark. Real Estate Comm’n v. Ruth P. WEST, d/b/a BROADWAY SCHOOL OF REAL ESTATE
    5-6058
    486 S.W. 2d 31
    Opinion delivered October 30, 1972

      Ray Thornton, Atty. Gen., by: Fred H. Harrison, Asst. Atty. Gen., for appellants

      Lloyd R. Haynes, for appellee.
   George Rose Smith, Justice.

Since 1968 the appellee, Ruth P. West, doing business as Broadway School of Real Estate, has conducted a training school in Little Rock for persons who are preparing to take the written examination for a license as a real estate broker or salesman. Ark. Stat. Ann. § 71-1304 (Supp. 1971). For a time the appellants, who constitute the Arkansas Real Estate Commission, permitted graduates of the Broadway School to take the examination. However, on September 2, 1971, the Commission adopted a regulation that had the effect of terminating the Broadway School’s status as a training institution acceptable to the Commission.

Mrs. West then brought this action for a declaratory judgment finding the Commission’s regulation to be beyond its statutory authority and therefore invalid. The controversy was submitted to the trial court upon stipulated facts. This appeal is from a declaratory judgment holding the Commission’s regulation to be void.

We agree with the trial court. The statute governing real estate brokers and salesmen provides four ways in which an applicant for a license may qualify himself to take the written examination. One of the four requires not less than thirty hours of classroom attendance in “[a] reputable, bona fide business school situated in the State of Arkansas.” Section 71-1304, supra. The appellee’s Broadway School of Real Estate is prima facie a reputable, bona fide business school; it has been licensed by the State Board of Education as an approved private school offering vocational courses. The General Assembly declared by Act 416 of 1965 that the State Board of Education “shall have sole authority [our italics] to approve all schools offering courses below college level leading to an occupational objective.” Ark. Stat. Ann. § 80-4302 (Supp. 1971).

The Real Estate Commission, in the regulation now in question, requires not only that an acceptable business school be licensed by the State Board of Education but also that it either be accredited by the “Accrediting Commission for Business Schools” or demonstrate to the satisfaction of the Real Estate Commission that it meets the criteria for accreditation established by the Accrediting Commission for Business Schools.

In seeking to justify the regulation the Real Estate Commission relies upon broad staturory language authorizing the Commission to “do all things necessary and convenient for carrying into effect” the provisions of the statute creating the Real Estate Commission. Section 71-1303 (Supp. 1971). One fláw in that argument lies in the fact that the legislature has vested in the State Board of Education the “sole authority” to approve occupational schools below college level. How can it be said that either necessity or convenience requires that the Board of Education’s authority be subordinated to additional conditions imposed by the Real Estate Commission?

Moreover, even if it should be found that the legislature intended for the Real Estate Commission to have some authority in the matter, the regulation in question plainly invades a field beyond the Commission’s special competence. The regulation requires that business schools to qualify for eligibility, meet the standards established by the “Accrediting Commission for Business Schools.” The regulation does not identify the Accrediting Commission in any way. In the court below the Real Estate Commission made no attempt to explain or clarify its reference to the Accrediting Commission. We find no statutory reference to such a body. Thus we may speculate, at best, that such a commission does exist and that it has laid down standards for accrediting business schools. Even so, there is nothing to indicate that such business schools offer training in the real estate field only, rather than with respect to business in general. It follows that, if the standards of the Accrediting Commission are to be adopted in Arkansas, that decision under existing law falls within the special knowledge of the State Board of Education and not within the more limited expertise of the Real Estate Commission.

Affirmed.


author: Lyle Brown, Justice.

text:
    Clarence HUITT, Et ux v. BRADLEY County
    5-6051
    486 S.W. 2d 21
    Opinion delivered October 30, 1972

      Gibson Law Firm, for appellants

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy, for appellee.
   Lyle Brown, Justice.

This is an eminent domain proceeding whereby Bradley County condemned 3.6 acres out of a tract of 67 acres. The purpose of the taking was to make possible the widening and straightening of State Highway 160 from Hermitage to Ingalls in Bradley County. The jury awarded appellants, landowners $800. Appellants contend (1) the court erred in admitting into evidence the assessed valuation of appellants’ property made in 1958-59 because of its remoteness in time; (2) it was error to refuse to permit appellants to introduce an offer of compensation made by the county judge; and (3) it was error to admit the testimony on cross-examination of appellants’ witness as to what he would pay for appellants^ farm. We will discuss the points in that order.

Point l. The testimony as to assessed valuation. The assessor testified that there was a reappraisal throughout the county in 1958 and 1959; that there has been no subsequent reappraisal; and that at the time of trial the assessed valuation as shown by his records was $2620. That valuation was the same as the 1958-59 appraisal. It was not improper to show the assessed valuation. Arkansas State Highway Comm’n. v. Snowden, 233 Ark. 565, 345 S.W. 2nd 917; Omohundro v. Saline County, 226 Ark. 253; 289 S.W. 2d 185. The question before us is actually whether the trial court abused his discretion in permitting the testimony. We think not. It is true considerable time elapsed between the reappraisal program and the time of trial. Yet the assessment due to the reappraisal was still being used and represented the assessed valuation for 1971. It should in fact have been helpful to the appellants to have the jury know that the 1971 assessment was based on the results of an appraisal program of previous years. It is common knowledge of informed jurors that the market value of lands generally has steadily increased in the last several years.

Point 2. The offer of compensation made by the county judge.' The county judge was asked on cross-examination if he made an offer of settlement to appellants. The court sustained an objection to the testimony. The ruling was appropriate. Arkansas State Highway Comm’n. v. Elliott, 234 Ark. 619, 353 S.W. 2d 526 (1962).

Point 3. The testimony of appellants’ witness as to what he would pay for the land. Witness for appellants, Norman Grider, testified that he was in the business of buying and selling timber and timber lands and gave his estimate of the value of growing timber in the new right-of-way. On cross-examination he conceded that he would be willing to pay as much for the farm after the taking as he would have paid before the taking. The ruling was not error. It was a question that was clearly permissible on cross-examination to test the credibility of the witness. He had testified on direct examination to damages of $1700 caused alone by the taking of the trees in the right-of-way. Appellee had a right to ask if the taking of the trees would affect, in his opinion, the overall value of the property.

Affirmed.

Harris, C.J., dissents


text:
    Florence KELLEY v. Robert L. KELLEY
    5-6060
    486 S.W. 2d 5
    Opinion delivered October 30, 1972

      Davis and Reed, for appellant.

      No brief for appellee.

   Lyle Brown, Justice.

This litigation stems from a disagreement between the husband and the wife as to the extent of child support owed by the husband. The chancellor held that the husband was not in arrears and the wife appeals.

In 1971 the parties entered into an agreement styled “Custody, Visitation and Support Agreement”. It was agreed that the husband would have custody of the two minor children; that the children could visit their mother any week-end they so desired; and that the husband would pay $8.00 weekly “in consideration of the [wife’s] costs with respect to said children”. The husband interpreted the support clause to mean he should pay $8.00 per week when the children spent the week-end with their mother. The wife insisted that she was entitled to be paid $8.00 each week irrespective of the visits of the children. It was conceded that the husband had made the payments according to his interpretation of the contract. According to the wife’s view of the contract the husband would of course be in arrears.

At the close of appellant Florence Kelley’s testimony the chancellor sustained a demurrer to the evidence. In taking that action the chancellor agreed with the husband’s interpretation of the contract. It was held that the $8.00 a week was in consideration of the wife’s expenses when she did in fact have the children. “It does appear that $8.00 a week was to defray extra expense of appellant for keeping the children on those occasions when they desired to visit her.”

We think the chancellor’s view of the contract was reasonable. Additionally, the parties to this suit had previously presented the contract to the court and at their request it became a court order. Therefore the court had some control over its order concerning the obligations of the parties and the welfare of the children.

Appellant contends that the court erred in not allowing her an attorney’s fee. That matter was within the discretion of the court and we cannot say it was abused.

Subsequent to the hearing on which this appeal is based the court amended its order dismissing the contempt proceeding by requiring the father to provide the children with a change of clothing and $2.00 spending money when they visited their mother. On appeal the mother objects to the modification. We see no merit in the contention because the modification was strictly to the advantage of the children and the mother.

Affirmed.


author: John A. Fogleman, Justice.

text:
    COMMISSIONER OF LABOR, Employment Security Division v. Eulis O. RENFROE
    5-6069
    486 S.W. 2d 73
    Opinion delivered October 30, 1972
    [Rehearing denied November 27, 1972.]

      Herrn Northcutt, for appellant.

      No brief for appellee.
   John A. Fogleman, Justice.

Appellant contends that the circuit court erred in holding that appellee’s entitlement to benefits under the Arkansas Employment Security Law was unaffected by the amount received by him as old age benefits under the Old Age Survivors and Disability Insurance Act (Social Security Law) of the United States. The initial claim was made in this case on April 3, 1969. After exhausting administrative remedies, the claimant applied to the circuit court for judicial review. The circuit court held that appellee’s unemployment compensation benefits should not be reduced by the amount of "Social Security” benefits received by him, reversing the holding of the Board of Review that such payments constituted remuneration in the form of retirement pay. We agree with the circuit court.

Appellant contends here that the holding of the Board of Review was correct. The governing statute is referred to as Section 5(f)(4) of the Arkansas Employment Security Act, as it read at the time of the claim. The section applicable is set out in Section 6 of Act 93 of 1963. The applicable subsection then read:

(f) If so found by the Commissioner an individual shall be disqualified for benefits for any week with respect to which he receives or has received remuneration in the form of:
(1) Dismissal payments.
(2) Unemployment benefits under an unemployment compensation law of another state or of the United States.
(3) Vacation pay.
(4) Retirement Payment. Provided that if the amount of the retirement payment computed on a weekly basis shall be less than the claimant’s weekly benefit amount, the claimant may be paid the difference between his retirement payment computed on a weekly basis and his weekly benefit amount. Provided further, however, that no claimant shall be disqualified from receiving benefits under this subsection when his benefits are based entirely on wages earned from employment other than that from which he is retired.
(5) Training or retraining allowance provided for by appropriation of the Congress of the United States.

It should be noted at the outset that two of the five categories of remuneration which the Commissioner of Labor may find disqualifying are (1) dismissal pay and (2) vacation pay, both of which are payments made by the employer. The remaining two categories are (1) unemployment compensation under the law of another state, and (2) training or retraining allowance provided for by appropriation of the United States Congress. Although neither of the latter two items would be subject to classification as retirement pay, the General Assembly did clearly recognize that certain allowances made under the laws of sovereigns other than Arkansas should be disqualifying. The simplest and most direct means of making “Social Security” benefits a disqualifying remuneration would have been to list it as a separate category. This approach has been taken in several states. See, e.g., Page’s Ohio Revised Code Ann. § 4141.31A (5), which provided not only for reduction of benefits by the amount of remuneration from certain payments in the form of retirement, but also by one-half of the “old age benefits” payable under the Social Security Act; Okla. Stat. Ann., Title 40, § 215(e); Minn. Stat. Ann., Title 17A, § 268.08 subd. 4 (Cum. Pocket Part for 1972-1973).

Payments made under the Old Age Survivors and Disability Act cannot be easily placed in a particular classification as between “earned rights” or “gratuities.” It can be said with some assurance that whatever right one may have to benefits under that act is not an “accrued property right” or a “vested right” in the sense that one may not be deprived of them by United States government action that is not in violation of constitutional due process requirements. Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960). While payments are based upon a wage-earner’s record of earnings in employment covered by the act, the program is financed by the appropriation of an amount equal to the total of payroll taxes paid into the general treasury as internal revenue collections. See Flemming v. Nestor, supra. These payments may not be subject to classification as gratuities, but the concept is such that it would be difficult to say that they are “retirement payments” in the sense of our Employment Security Act. In Flemming, the United States Supreme Court said:

The Social Security system may be accurately described as a form of social insurance, enacted pursuant to Congress’ power to “spend money in aid of the ‘general welfare’,” Helvering V. Davis, supra (301 US at 640), whereby persons gainfully employed, and those who employ them, are taxed to permit the payment of benefits to the retired and disabled, and their dependents. Plainly the expectation is that many members of the present productive work force will in turn become beneficiaries rather than supporters of the program. But each worker’s benefits though flowing from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation. It. is apparent that the noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.

The court, in Flemming, also stated that it was dealing with a “noncontractual benefit under a social welfare program.”

Even though we accept “Social Security” payments as a type of insurance benefit, it is one of which a beneficiary can be deprived by appropriate government action. As pointed out in Flemming, entitlement to benefits may be lost if the beneficiary earns more than a stated annual sum, unless he has passed the age of 72. We should also note that an employee over 65 may receive “social security” benefits without retiring, so long as his earnings from employment do not exceed the statutory limit. 42 U.S.C.A. §§ 402, 403 (1970). In disposing of the contention that a benefit recipient had “accrued property rights” to payments, the court, in Flemming, gave emphasis to Congressional retention of the right to alter, amend or repeal any provision of the act. 42 U.S.C.A. § 1304 (1970).

Our attention has not been called to any decision in any other state where old age benefits paid under the Social Security Act have been held to be disqualifying in the absence of a specific statutory provision. On the other hand, these old age benefits have been held nondisqualifying in Indiana and Idaho. Nelson v. Review Board of Indiana Employment Security Division, 119 Ind. App. 10, 82 N.E.2d 523 (1948); Turner v. Boise Lodge No. 310, 77 Idaho 465, 295 P.2d 256 (1956). The Idaho court had this to say:

The Employment Security program has as its purpose the providing of temporary benefits for the unemployed worker who qualifies under the provisions of the Act. Claimant is receiving old age benefits under the Social Security program. This part of the Social Security program is primarily designed for persons who are no longer in the labor market. This does not mean that a person drawing old age benefits is disqualified from drawing unemployment benefits.

Retirement pay is generally considered not to be a pension or gratuity but as adjusted compensation presently earned by an employee but payable in the future. Ledwith v. Bankers Life Ins. Co., 156 Neb. 107, 54 N.W.2d 409 (1952). We clearly recognized that retirement pay falls into the category of compensation, at least when financed over a period of years by the joint contributions of both the employer and employee, in Daggett v. St. Francis Levee District, 226 Ark. 545, 291 S.W.2d 254, where we cited Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 174 A. 400 (1934), which made the exact distinction applied in Ledwith. Perhaps the definition should more appropriately be stated conversely, i.e., retirement pay is compensation currently paid but previously earned by an employee. However the distinction may be stated, the various facets of the Social Security Law prevent the benefits payable thereunder from falling into the category of retirement pay as defined above.

In the absence of any statutory definition of the term “retirement payment,” we feel that the generally accepted concept of retirement pay should govern and that the result reached by the Indiana and Idaho courts is preferable to that urged by appellant.

We affirm the judgment.

       The provision for reduction for old age benefits has been eliminated by legislative action, as reflected by Page’s Ohio Rev. Code Ann. § 4141 31 (Supp. 1972).

       Subsequently, the Indiana Legislature adopted a statute specifically excluding federal old age, survivors and disability insurance benefits as disqualifying payments. Burns Ind. Stat. Ann. § 52-1539d (Supp. 1971).


author: Conley Byrd, Justice.

text:
    Doyle WEBB and Ronnie PHILLIPS v. CITY of LITTLE ROCK
    5-6061
    486 S.W. 2d 29
    Opinion delivered October 30, 1972

      Gene Worsham, for appellants.

      Howell, Price, Howell <t Barron, special attorneys for appellee.
   Conley Byrd, Justice.

Appellants Doyle Webb and Ronnie Phillips were relieved as officers of the Little Rock Police Department following the arrest of two burglars at the Steak & Ale restaurant on Cantrell Road for allegedly having used excessive force. The Chief of Police’s discharge of the officers was sustained by the Civil Service Commission. The Circuit Court in a trial de novo agreed with both the Chief of Police and the Civil Service Commission. For reversal appellants contend that the judgment of the Circuit Court is not supported by substantial evidence. We raise the point that the record is not sufficiently abstracted.

Our Rule 9(d) requires appellant’s abstract or abridgment of the record to consist “of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings...facts, documents, and other matters in the record as are necessary to an understanding of all questions presented... .” In this case there were a number of exhibits such as photographs, reports of officers, etc. that were not abstracted. Typical of the abstracting by appellants is that having to do with the testimony given by Sgt. E.O. Evans. Appellants abstract of Sgt. Evans’ direct examination is as follows:

“I recognize the signature at the bottom of the ‘Officers Report’ as belonging to Ronnie Phillips. (Exhibit No. 10) The document is in reference to the burglary at the Steak and Ale. This is Officer Phillips’ further written report concerning the incident.”

Exhibit No. 10 (not abstracted by appellants) was officer Phillips’ report of his activities made on “8-8-71” which provides:

“On 8-8-71, at approximately 3:10 A.M. a call was dispatched over the scrambler to a burglary at the Steak & Ale. Officer Dunnington & myself were assigned to the Oakwood Apt. to check on a car left there on the parking lot by the burglars. We pulled a 1962 white Buick which belonged to James Sipes, who was caught inside the Steak & Ale. License number on the Buick was BLW 641.”

Exhibit No. 11 (not abstracted by appellants) is a report made by Officer Phillips on “8-9-71” after the Chief of Police had started his investigation. It provides:

“From Ronnie Phillips
On 8-8-71 I answered a call to the Steak & Ale, a burglary in progress. Before we arrived at the Steak and Ale the Radio dispatcher assigned us to the Oakwood Apts, to look for a 1962 White Buick, that the burglar supposedly left parked there. We found the car and waited on a wrecker to pull the car. We then, after the car was pulled went to the Steak & Ale and pulled up in front of the building and talked to Lt. Laird, who was standing in front of a police car with one prisoner in the back seat. Lt. Laird advised us at this time to go to Sambos and check on a third burglar who had got away. We did this and returned to the Steak and Ale and then went back to the Oakwood Apts, and looked down the hill in back of the Steak fc Ale. We then went back to the Steak & Ale and I advised Lt. Laird that I had hurt my foot while at the Oakwood Apts, and he sent me to the Baptist Hospital. I did not transport any prisoners to jail or follow any one to jail nor at any time did I strike or see anyone else strike a prisoner. Signed Ronnie Phillips.”

At the trial in Circuit Court, Officer Phillips testified that he did not go to jail but that he did go to headquarters to turn in the storage report on a ’62 Buick. As he turned into the alley he saw two officers scuffling with one of the prisoners. In answer to a question as to what then happened he stated:

“A. They were scuffling, each one was on each side, they had both arms of the subject and he was kicking, cursing, just generally like a sulking cow, when you try to pull him in, he just pulls back and kicks. I went up behind the subject and I got kicked twice on the shins and I put my knee in his back and my hands on his shoulders and give him a shove and he fell through the door. I never went inside the jail. I went on to...
Q. Did you kick the prisoner in the face?
A. No, sir, I’ve never kicked anybody in the face.
Q. Did you hit him with a slapper?
A. No, sir, all I had in my hand was the storage report.
Q. Did you hit him with your fist?
A. I didn’t hit him with my fist.
Q. Mr. Price is going tb ask you about other witnesses. They brought some old drunk in there that had been in jail fifteen times and said he saw someone hit someone with a slapper, but he couldn’t identify who it was. I’m asking you if that person was you?
A. No, sir, it wasn’t because...
Q. If he saw him get hit by an officer with a slapper, you weren’t the one?
A. No, sir.
Q. Do you state under oath that you did not kick either of the suspects in the face or strike them with your fist or slapper?
A. That’s correct.”

Another officer testified that Phillips at the jail kicked the prisoner in the upper part of the body. After the kicking, Officer Phillips asked the same officer if he knew what a “broke or sprained foot looked like.”

The testimony with reference to Officer Webb concerned the treatment given the other handcuffed prisoner when he was removed from the roof of the Steak & Ale. The testimony there when viewed in the light most favorable to the trial court’s finding would indicate that when the prisoner was removed from the top of the five foot fence to the ground he was first hit in the head by a shotgun barrel by another officer and then hit by a slapper wielded by appellant Webb.

Concededly the physical condition of the prisoners was such as to require hospitalization when they were placed in custody of the city jailer.

The record contains in excess of twenty exhibits including officers reports and photographs about which the officers testified none of which appellants have abstracted. Of particular importance is joint exhibit No. 2 showing the exit from the roof of the Steak & Ale restaurant. Consequently we affirm this appeal because of appellant’s failure to comply with Rule 9(d).

Even if the Rule 9(d) violation should be disregarded, a majority of the court would affirm on the basis that there is substantial evidence to support the judgment of the trial court.

Affirmed.


text:
    STATE of Arkansas v. Archie STRINGFELLOW
    5763
    486 S.W. 2d 65
    Opinion delivered October 30, 1972

      Ray Thornton, Atty. Gen., by: Gene O’Daniel Asst. Atty. Gen., for appellant.

      Carpenter, Finch & McArthur, for appellee.
   Conley Byrd, Justice.

At a time when appellee Archie Stringfellow could only have been charged with assault with intent to kill, Ark. Stat. Ann. § 41-606 (Repl. 1964), he made a voluntary confession concerning the assault to kill. After the victim died and after the giving of the confession, he was charged with first degree murder pursuant to Ark. Stat. Ann. § 41-2205 (Repl. 1964). The trial court ruled the confession inadmissible because Stringfellow had not been warned of the first degree murder charge. The jury found Stringfellow guilty of involuntary manslaughter and assessed his fine at $100.00. The State has appealed pursuant to Ark. Stat. Ann. §-43-2720 (Repl. 1964).

We agree with the State that the trial court erroneously held the confession inadmissible. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 L. ed. 2d 694, 10 A.L.R. 3d 974 (1968), which deals only with the criterion for determining the voluntariness of a confession, contains nothing that would make this confession inadmissible.

Because of the double jeopardy provision of our constitution, we cannot reverse and remand for a new trial, but for the orderly administration of justice we do declare that error was committed.


author: Frank Holt, Justice.

text:
    WORTHEN BANK and TRUST COMPANY, Guardian of the estate of William Henry BARNUM, an incompetent v. Jack M. and Maryann LEWIS
    5-6048
    486 S.W. 2d 23
    Opinion delivered October 30, 1972

      Henry & Henry, for appellant.
    No brief for appellees.
   Frank Holt, Justice.

Appellees asserted , the ownership of certain lands by record title. William Henry Barnum responded and contended that he had acquired the title through adverse possession. Before the trial, Barnum was adjudged incompetent and appellant was appointed his guardian. The chancellor quieted and confirmed the title in appellees. For reversal of that decree, the appellant contends that the chancellor’s finding is against the preponderance of the evidence.

In 1925 Barnum purchased 76 acres of an 80 acre tract of land. The remaining four acres of the tract, of which 3 1/3 acres are in dispute, were expressly excluded by the terms of Barnum’s deed. On this same date, the excepted tract was conveyed to one of the appellees’ predecessor in title. This four acre tract is a narrow rectangular strip (105’ x 1,670’) which parallels a part of the eastern edge of the 76 acres deeded to Barnum. It is stipulated that appellees have record title to the disputed 3 1/3 acres of the 4 acre strip.

Appellant adduced testimony from Barnum’s neighbors and son-in-law to establish his claim of adverse use of the land. It appears that at the time Barnum purchased his lands (76 acres from the 80 acre tract) the 80 acre tract was enclosed with a fence which has continued in existence. Barnum pastured a few head of cattle and did some bushhogging on the four acre strip. In addition to these acts of dominion there was, also, testimony that Barnum stated he owned the land.

This four acre strip of land was conveyed by G. W. and Jennie Roberson to Glover Allen by warranty deed in 1939 (recorded 1957). In 1946, Allen (now deceased) admittedly built a house and lived on the land until about 1955. Allen conveyed the four acres in 1956 to Howard Johnson who sold 3 1/3 acres of the property in 1969 to the appellees. About 1957, Johnson sold the Allen house and had it removed with Barnum’s knowledge and without any objection from him. In 1959 or 1960, Johnson conveyed two lots (totaling 2/3 acres) to local individuals after having a survey made. Another survey was made in 1963 of which Barnum, also, had knowledge and made no objection. In fact, survey stakes were left standing for a long period of time. Johnson testified that during the 13 years he was the owner he talked with Barnum many times about the property and permitted Barnum, a friend, to “clean it up” and use it for pasturing. Barnum lived on his property and adjacent to the disputed strip from the time he acquired it in 1925 until he was adjudged incompetent during the pendency of this action. The first time Barnum ever made known to him any adverse claim of ownership was in 1964 when a dispute arose about a proposed roadway. The present action was instituted before the statutory seven, year period of time had elapsed.

“The quantum of proof necessary for a trespasser to establish title to a tract of land by adverse occupancy is greater where he has no color of title.” Hill v. Surratt, 240 Ark. 122, 398 S. W. 2d 225 (1966). In the case at bar, the appellant had the burden of sustaining its claim of adverse possession by a preponderance of the evidence and to demonstrate on appeal that the findings of the chancellor were clearly against the preponderance of evidence. White v. McReynolds et al, 253 Ark. 137, 484 S.W. 2d 871. In the case at bar, as abstracted, we cannot say that the finding of the chancellor is against the preponderance of the evidence.

Affirmed.


text:
    Russell A. PATTERSON v. STATE of Arkansas
    5765
    486 S.W. 2d 19
    Opinion delivered October 30, 1972

      Phillip H. Loh, for appellant.

      Ray Thornton, Atty Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted on three counts of possessing stolen property. The jury assessed his punishment at 21 years imprisonment in the state penitentiary on each of the three charges. The trial court directed that the sentences be served consecutively. For reversal appellant contends the evidence is insufficient to sustain the convictions and is “contrary to the law”.

On appeal we review the evidence in the light most favorable to the appellee and if there is any substantial evidence to support the jury verdict, we affirm. Ballew v. State, 246 Ark. 1191, 441 S. W. 2d 453 (1969). Appellant was charged separately with possessing a riding mower, a saddle, and a quantity (20) of automobile batteries in violation of Ark. Stat. Ann. § 41-3938 (1964 Repl.). The state adduced evidence from the owners that these items were recently stolen and, also, the value of the property on each of these counts was in excess of $35. The stolen property was recovered from a farm which appellant had recently leased. Appellant testified that he paid $350 to an unidentified person for the riding mower. According to the merchant owner, it had a retail value of approximately $870. Appellant said he paid $125 to another unknown person for the saddle. The retail owner placed the value of the saddle at $190. Appellant was unable to produce a receipt for the purchase of the mower or saddle. The appellant testified that the day after he and his family moved on the farm he noticed the 20 batteries stacked in his front yard. Several of these batteries were still in the cartons with the make and owner’s name on them. According to the bulk dealer, the batteries would sell for approximately $500.

Appellant was employed in Little Rock and the farm was located near Plumerville or approximately 38 miles distant. Appellant testified he owned some riding horses and dogs and it appears he leased the farm primarily for a place to keep them. He, also, maintained a residence in North Little Rock. The owner of the farm testified that none of the stolen property was on his farm when he vacated and leased the farm to the appellant. Appellant denied having any knowledge that the property items in his possession were stolen.

In order to constitute a violation of § 41-3938, it is necessary that the person possessing the stolen goods know the property is stolen. The possession of recently stolen property, if unsatisfactorily explained to the jury, is sufficient to sustain a conviction. Paschal v. State, 243 Ark. 329, 420 S. W. 2d 73 (1967), Evans v. State, 252 Ark. 335, 478 S.W. 2d 874 (1972). In the case at bar, the recently stolen property was found in appellant’s possession. His explanation as to the circumstances of his possession was not accepted by the jury as being true. The jury very well could infer from the evidence that appellant was knowingly in possession of the recently stolen property with the intent to deprive the true owners of their property. We think the evidence is amply substantial to sustain the jury’s verdicts.

Appellant next makes the argument that the three 21 year sentences totaling 63 years are excessive. We have many times held that we do not disturb a penalty where a jury assesses the punishment within the limits ore-scribed by law. The punishment assessed by the jury was within the statutory limits. (1-21 Years, § 41-3938, supra). The jury exercised the right and the authority vested in it by our legislature and constitution. Ballew v. State, supra; Atwell v. State, 244 Ark. 739, 427 S. W. 2d 1 (1968); Hurst v. State, 251 Ark. 40, 470 S.W. 2d 815 (1971); Osborne v. State, 237 Ark. 5, 371 S. W. 2d 518 (1963). In Osborne we recognized that we are not empowered to mitigate a sentence imposed by a trial court. There we said:

“The right to exercise clemency is, however, vested not in the courts but in the chief executive. Ark. Const. Art. 6, §18. Our latest cases have uniformly followed the rule, which we think to be sound, that the sentence is to be fixed by the jury rather than by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.”

Nor can we agree with appellant’s suggestion that the consecutive sentences require appellant to serve 63 years for his conviction. Consecutive sentences, for parole eligibility purposes, are now “considered as a single commitment ***” instead of separate ones. Ark. Stat. Ann. § 43-2807 (Suppl. 1971) and Tabor v. State, 246 Ark. 983, 440 S. W. 2d 536 (1969).

Appellant finally makes the argument that he was not afforded a fair trial. We find no merit in this contention. Appellant was represented by counsel of his own choice and he does not, through his court appointed counsel on appeal, demonstrate any prejudicial error or unfairness in the trial of his case.

Affirmed.


text:
    ARKANSAS FIRST NATIONAL BANK, executor of the estate of Wayne R. CHITWOOD, deceased, v. R. H. SCUDDER and SCUDDER CHEVROLET, INC.
    5-6066
    486 S.W. 2d 83
    Opinion delivered November 6, 1972

      Rasmussen ir Hogue, for appellant.

      Wood, Smith & Schnipper, for appellee.
   Carleton Harris, Chief Justice.

R. H. Scudder, President of Scudder Chevrolet, Inc., appellees herein, Wayne R. Chitwood, and Warren Chitwood, were the owners of all the stock of Scudder Chevrolet, Inc., formerly Chitwood Motor Company. Wayne and Warren were brothers and Scudder was a half brother. For a number of years Wayne was the president and the largest stockholder of Chitwood Motor Company, and on April 28, 1950, Metropolitan Life Insurance Company issued its policy on the life of Wayne Chitwood in the amount of $25,000 (term insurance), Chitwood Motor Company being the beneficiary. Because of the physical condition of Wayne and management problems, the parent motor company insisted that changes be made under the threat of revoking the dealership. Wayne was required to reduce his stock by sales to his brother Warren and to Scudder and his holdings were reduced to 26.1% of the stock. Later, there was a requirement that the name of the dealership be changed to Scudder Chevrolet, Inc., and still later it was required that the dealership be sold. On January 19, 1968, Wayne, Warren, and Scudder entered into an agreement whereby Wayne and Warren sold all of their stock to Scudder Chevrolet, Inc. On the same day, substantially all of the assets of Scudder Chevrolet were sold to Joe Edd Hawkins Chevrolet, Inc. The premiums on the aforesaid policy had been paid by Chitwood Motor Company, and later by Scudder Chevrolet, Inc. Warren Chitwood died later in 1968 and Wayne died on March 15, 1969. The proceeds of the policy, here in question, in the amount of $28,514.74 were paid to Scudder Chevrolet, Inc. On February 13, 1970, suit was instituted on behalf of the estate of Wayne R. Chitwood for 26.1% of the $28,514.74 proceeds from the insurance policy and 26.1% of certain accounts receivable. After the filing of an answer, the case proceeded to trial and thereafter the trial court denied recovery for any of the proceeds of the insurance policy but entered judgment for appellant for 26.1% of certain accounts receivable. From the judgment so entered, appellant brings this appeal. For reversal six points are asserted but all are closely related and intertwined and there is no necessity for our discussion to be point by point.

The agreement entered into on January 19, 1968, between the three reflects that Warren Chitwood assigned and transferred his 369 shares of capital stock for the sum of $69,083.64, Warren acknowledging receipt of that sum, and Wayne Chitwood acknowledged receipt of $49,890.92 for an assignment and transfer of 261 shares of capital stock. The agreement further recited:

“The buyer further agrees that a complete and careful account will be maintained of collections received on customer accounts and notes receivable which were balances as of December 31, 1967 of the buyer not purchased by Joe Edd Hawkins' Chevrolet Company totaling $6,419.71. From collections there will be deducted all collections expense, and expense of maintaining the collection records and any other expense of the Chevrolet Agency paid by the buyer which was not specifically taken into account in determining the fair market value of the stockholders equity of Scudder Chevrolet, Inc. of $206,844.34 on December 31, 1967, which was the basis for the agreed considerations paid for the stock as set out in this agreement. After collection efforts have been exhausted net income from collections if any will be determined and of the amount so determined buyer agrees to pay to Warren Chitwood 36.9% thereof and Wayne Chitwood 26.1% thereof as additional consideration for the Scudder Chevrolet, Inc. stock purchased from the sellers.”

This portion of the agreement was the basis of the court’s judgment finding that the estate of Wayne Chit-wood was entitled to 26.1% of collections made on the unpaid accounts receivable. At the time of the agreement, because of unpaid dividends which had been allowed to accumulate and interest, the policy had a value of $2,896.-48. John T. Rogers, Jr., a Certified Public Accountant, who with Charley Dodson, had examined the books and records and established the net worth figure, and who had prepared the agreement, testified that his net worth figure did not include the accrued dividends and interest as an asset. Rogers said that he did not know of the existence of the policy until after the agreement had been executed and performed; that he had discussed the adjusted statement and balance sheet with Wayne and that the policy was not mentioned by either Wayne or Scudder. However, he indicated that, were it otherwise, it would not have been listed, stating:

“This is a dividend or a premium adjustment which is not cash value, as I understand it. Now in accounting for life insurance, or value of life insurance, if this had had a cash value Charles Dodson would have, I’m sure reflected this on the books of the company and credited it retained earnings. **** Now this was not put on the books as an asset because it was not cash value, as I understand it.”

The witness said that it would not be considered good accounting to list it as an asset, and it was not taken into consideration in computing the net worth of the company. Mrs. Delphia Hoopes, Wayne’s daughter, testified that she was present when her father and uncle (Scudder) returned from the bank, and her father brought up the subject of the insurance. She said that Scudder said “If and when I cash these in you’ll get your share”. Scudder testified that at the time of the agreement, the matter of the policy did not cross his mind, and after the transaction was completed, Wayne asked “What are we going to do about the interest and premium on that policy?” and he replied “Wayne, if and when I decide, if I decide to cash it in, I’ll get you yours.” He said that no agreement was entered into then, or later, with reference to the policy.

Appellant makes reference to the paragraph of the agreement, earlier quoted, points out that one premium was paid on the policy by Scudder from the funds that had been collected, a portion of which belonged to Wayne, and asserts that Scudder is accordingly es-topped from denying the interest of Wayne’s estate in the policy. We do not agree. As stated by the circuit court, “Referring back to the insurance policy, the funds of Scudder Chevrolet, Inc. were so commingled that you could not distinguish any part of said funds from any other”. The testimony reflected that Scudder’s personal funds and the corporation collections were in the same account, and the check for the premium was written on this account Appellant cites several cases which it asserts apply to its theory of estoppel, but we do not agree. There w^s no fraud in this case, nor is there any contention that fraud was practiced. Admittedly, both Scudder and Wayne were aware of the policy; in other words, there was no concealment and no representations were made by Scudder upon which Wayne Chitwood relied to his detriment. As the court found, Scudder’s knowledge about company business affairs, at the time the agreement was entered into, was no greater than the knowledge of his two half brothers who sold their stock interest to the company.

It is asserted that the court erred in failing to find that the minds of the parties had not met. It is argued that there was no transaction with regard to the earned premium and interest figure, and that therefore the original parties retained all of their interest in the policy. However, to a degree, appellant meets itself coming and going, for under the same point, the case of Arnett & Arnett v. Lillard, 245 Ark. 939, 436 S. W. 2d 106, is cited and argued in support of appellant’s position. There, however, the court found, and the parties admitted, that in addition to the written instrument, there had been an oral agreement which was not expressed in the contract document. This court, under the facts there, stated that the fault should be borne equally. In the case presently before us, admittedly there was no oral agreement. N'o contract was ever entered into between the parties relative to what would be done about the policy. To the contrary, Scudder had simply said that if he decided to “cash it in, I’ll get you yours”.

Wayne and Warren Chitwood transferred all of their shares of stock and by doing so, terminated completely their interest in the corporation. There is no evidence but that Scudder Chevrolet was a bona fide purchaser which, for a valuable consideration, purchased the stock. Wayne Chitwood, in making the sale, simply divested himself of any interest in the corporation, with the one exception, agreed upon between the parties, viz, the accounts receivable.

One of the most pertinent facts in this litigation is that Wayne Chitwood, though, under the undisputed testimony, aware of the fact that Scudder had not entered into any agreement with him relative to the policy, and though Scudder had stated (as testified to by Wayne’s daughter) “If and when I cash these in, you’ll get your share”, — did not pursue the matter further. Let it be remembered that Wayne did not die until approximately fourteen months after entering into the agreement, and disposing of his stock in Scudder Chevrolet Co.

This case was tried by the circuit court and we are therefore only concerned with whether there was substantial evidence to support the court’s judgment. From what has been said, it is apparent that we do find substantial evidence to support the findings of the Garland County Circuit Court.

Affirmed.

       The name of the beneficiary was changed to Scudder Chevrolet, Inc. on April 29, 1960.

       From the opinion of the court: "Regarding the collections by Scudder Chevrolet, Inc. on the unpaid accounts receivable retained by the company, plaintiff is entitled to recover 26.1% of the sum of $2928.00 from defendant corporation. The judgment should reflect that Scudder Chevrolet Inc. had collected the sum of $3841.34 of the accounts receivable referred to in the aforesaid agreement and was entitled to credit for expenses in the sum of $878.34 leaving the aforesaid sum of $2928.00 as the net collected on those accounts.”

       Mr. Rogers is also a licensed attorney.

       The evidence reflected that the bank account varied between $9,884.71 and $11,315.91. The court found that only $3,841.34 of the accounts receivable were collected, appellant being entitled to 26.1% of this amount. It is thus obvious that the account, upon which the premium check was written, contained from over twice, to nearly three times as much money at all times as had been collected.


text:
    MEADOWLAKE NURSING HOME et al., v. Mary L. SULLIVAN
    5-6070
    486 S.W. 2d 82
    Opinion delivered November 6, 1972

      Cockrill, Laser, McGehee, Sharp ér Boswell, for appellants.

      Guy Jones Jr., Guy H. Jones, and Phil Stratton, for appellee.
   George Rose Smith, Justice.

This is a workmen’s compensation case. The appellee, while she was mopping a floor in the course of her employment at the Meadow-lake Nursing Home, fell and seriously injured her hip. As a result of the accident the rounded upper end of the claimant’s left femur was surgically removed and replaced with a prosthetic knob. When the case was heard by the referee the claimant was not working and testified that she was unable to work. The Commission made a finding of total disability and allowed compensation upon that basis. This appeal is from a circuit court judgment affirming the Commission’s award.

We find no merit in the appellants’ contention that there is no substantial evidence to support the Commission’s finding of total disability. The claimant is a 64-year-old woman with an eighth-grade education. She is not trained for any work except manual labor. Since the operation she must use crutches or a walker or a cane to move about. She cannot engage in the arduous activities that were incident to her work before the accident. The claimant’s own testimony is corroborated by other witnesses and by her doctor. Without detailing the proof at length, we think it enough to say that the Commission’s finding of total disability is amply supported by the record.

The appellants’ main contention for reversal is based upon the testimony of Dr. Grimes, the claimant’s physician, who evaluated her medical disability as a 40% impairment of the left leg as a whole. There is no medical testimony indicating any greater impairment. In Anchor Constr. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573 (1972), we held that the Commission, in fixing a partial disability resulting from an injury scheduled in Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960), cannot consider a wage-earning loss in addition to the physical functional loss. Upon the basis of that decision the appellants argue that the Commission erred in allowing anything more than the scheduled compensation for a 40% functional impairment of one leg.

That contention misconceives the basis for our holding in the Anchor Construction Company case. There we were considering only a partial disability under Subsection (c) of Section 81-1313, supra. That subsection provides fixed compensation which covers the functional loss and the wage-earning loss. But Subsection (a) provides a different rule with respect to total disability, which is to be determined “in accordance with the facts.” We held in McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966), that a scheduled injury may give rise to an award of compensation for total disability under Subsection (a). McNeely was not overruled by Anchor Construction, because the wording of Subsection (a) is more liberal than that of Subsection (c). The McNeely case is identical in principle with the case at bar and fully sustains the decision of the Commission.

Affirmed.


text:
    Worlick HOWARD v. TRI-STATE INSURANCE CO
    5-6072
    486 S.W. 2d 77
    Opinion delivered November 6, 1972

      Mooney & Boone, for appellant.

      Kirsch, Cathey, Brown ir Goodwin, for appellee.
   Lyle Brown, Justice.

This case originated from an intersection collision between Worlick Howard, appellant, and a fire truck owned by the city of Paragould and insured by appellee, Tri-State Insurance Company. The sole point on appeal is that the trial court erred in giving AMI (Civil) 614 (sudden emergency).

The testimony as to the occurrence was very brief and was given by appellant and the truck driver. Appellant testified that he was proceeding on Highland Street; that he entered North Third Street; and that the stop signs were in his favor. “I never saw the fire truck before the accident. I did not know what hit me. The next I knew I was in the hospital.” The truck driver testified that he was answering a fire call and had his regulation lights and siren turned on. Of the impact he said: “I was not going over 25 miles per hour when the accident happened ... I looked to the right. I didn’t see anything and looked left and when I looked back I seen him and we hit just like that [instantaneously]”

We find not one iota of testimony of either driver finding himself in ah emergency situation and taking action accordingly. The giving of the instruction was therefore error. Smith v. Alexander, 245 Ark. 567, 433 S.W. 2d 157 (1968). An erroneous instruction which is likely to mislead the jury is prejudicial. Johnston v. Pennington, 105 Ark. 278, 150 S.W. 863 (1912). In the case at bar the jury was by other instructions advised as to the emergency status of a fire truck. The jury therefore may well have believed that the truck driver, under AMI 614, enjoyed some special privilege.

Reversed and remanded.


text:
    Austin WIGGINS, jr., d/b/a WIGGINS & COMPANY v. SEARCY FEDERAL SAVINGS & LOAN ASSN.
    5-6023
    486 S.W. 2d 900
    Opinion delivered November 6, 1972
    [Rehearing denied December 11, 1972.]

      Dean R. Morley, for appellant.

      C. E. Yingling Jr., for appellee.
   John A. Fogleman, Justice.

In November 1968 appellant Austin Wiggins, doing business as Wiggins & Company, contracted with Von Ber Mar, Inc., to construct a residence on property owned by the corporation. A construction loan was made by First American National Bank on a note of Von Ber Mar, Inc., endorsed by Wiggins. Permanent financing was obtained through a loan of $22,400 to Von Ber Mar by Searcy Federal Savings & Loan Association made on May 23, 1969, and secured by a mortgage on the property on which the house was built. On April 19, 1969, Ray Richmond, Secretary and Staff Appraiser for appellee, appraised the property. He testified that the house appeared ready for occupancy at that time, but that even though Wiggins and some of his workmen were on the job at the time, he made no inquiry of Wiggins about any outstanding debt to the contractor. The president of the association also testified that he knew that some work was in progress when the appraisal was made.

Wiggins claimed a mechanic’s and materialman’s lien on the property for an amount in excess of $20,000, contending that items of the value of $114.88 were installed and charged to the job after the mortgage was executed. Wiggins brings this appeal from the decree of the chancery court holding that his lien was subordinate to the mortgage of Searcy Federal Savings & Loan.

Appellant filed suit to enforce his lien on October 1, 1969. Von Ber Mar, Inc., was the only defendant in the action. Appellee did not become a party until its petition to intervene was filed November 21, 1969, and granted on the same date. The petition for foreclosure of the mortgage was filed December 5, 1969. The first pleading in which Wiggins asserted any claim of priority over the mortgage lien was filed on April 17, 1970.

Even though a suit to establish a lien is a substantial compliance with the lien statute, when the notice required by the statute has not been given, the action must be filed against the necessary parties within 120 days after the last item of material was furnished or work done. Ark. Stat. Ann. § 51-613 (Repl. 1971); Burks v. Sims, 230 Ark. 170, 321 S.W. 2d 767.

The holding of the chancellor was correct. The last items were furnished by appellant on August 21, 1969, according to his theory of the case. A lien does relate back to the commencement of the construction, as appellant contends, when the lienor’s account is filed with the circuit clerk as required by Ark. Stat. Ann. § 51-613. See Planters Lumber Co. v. Jack Collier East Co., 234 Ark. 1091, 356 S.W. 2d 631. This must be filed within 120 days after the last item of material was furnished or work or labor done or performed. The filing of this account is essential to perfection of the lien and its continued existence after the expiration of the 120-day period. In the absence of substantial compliance with the statute, the lien in this case would become void and unenforceable 120 days after August 21, 1969. Rea v. Lammers, 212 Ark. 792, 207 S.W. 2d 740; McGehee Realty & Lumber Co. v. Kennedy, 200 Ark. 926, 141 S. W. 2d 524; Hirsch v. Farris, 174 Ark. 1040, 298 S.W. 487; Young Men’s Building Association v. Ware, 158 Ark. 137, 249 S.W. 545; Mitchell v. Schulte, 142 Ark. 446, 222 S. W. 365; Conway Lumber Company v. Hardin, 119 Ark. 43, 177 S.W. 408. See also, Doke v. Benton County Lumber Co., 114 Ark. 1, 169 S.W. 327; 52 L.R.A. (n.s.) 870.

It is true that, as between the landowner and the lien claimant, the filing of a suit against all necessary parties to preserve and enforce the lien within the 120-day period is a substantial compliance with the statute which cures the omission to file the account with the circuit court clerk. Burks v. Sims, 230 Ark. 170, 321 S.W. 2d 767; Rust v. Kelley Bros. Lumber Co., 180 Ark. 517, 21 S.W. 2d 973. This relaxation of the statutory requirement, otherwise essential to the preservation and assertion of the lien, applies only as between the lien claimant and the landowner, and is based primarily upon the premise that the landowner will have, by the notice of filing of the suit, as much notice of the assertion of the lien and opportunity to protect his property from it as he would have by a strict compliance with the statute and that the filing requirements are intended primarily for the protection of third parties who might acquire rights in, or liens upon, the property. Anderson v. Seamans, 49 Ark. 475, 5 S.W. 799; Pfeiffer Stone Co. v. Brogdon, 125 Ark. 426, 188 S.W. 1187; Rust v. Kelley Bros. Lumber Co., supra. In such a situation, either the account which accompanies the complaint or allegations of the complaint which embrace substantially all that the statute requires to appear in the verified account are treated as a substitute for the account required by the statute. Anderson v. Seamans, supra; Wood v. King Manufacturing Co., 57 Ark. 284, 21 S.W. 471; Rust v. Kelley Bros. Lumber Co., supra.

The same reasons will not serve to excuse filing the statement in the case of a mortgagee against whom a suit is not instituted within the statutory period, even though the mortgage was executed subsequent to the commencement of the building or improvement and prior to its completion. The subsequent encumbrancer, in the absence of the filing of the account or of a suit to which it is a party, is entitled to assume that the merchanics and materialmen who do not file an account have been paid or that they have elected to waive the statutory lien. Furthermore, the mortgagee claiming priority had as much right to litigate the issues as to the existence, amount and extent of the lien as did the landowner. This it could not do in an action to which it was not a party or of which it had no notice.

Even though the evidence here be taken to be sufficient to establish notice to appellee of appellant’s lien, this notice extended only for the 120-day period, since appellant neither complied with the statutory requirements of filing nor brought a proper suit to enforce the lien before the expiration of that period. See, Bell v. Koontz, 172 Ark. 870, 290 S.W. 597. It is only during that period that such a purchaser is required to take notice that a good record title may be encumbered by a lien perfected within that period. Owen v. Continental Supply Co., 175 Ark. 741, 300 S.W. 398. We have previously indicated that it was necessary that one claiming a lien against another purchasing the improved property subsequent to the furnishing of materials is excused from giving notice to that purchaser only by joining that purchaser in the action to enforce the lien. Eddy v. Loyd, 90 Ark. 340, 119 S.W. 264. See also, Owen v. Continental Supply Co., supra.

We do not seem to have been presented with the identical question posed here. It seems to be well established, however, that, under statutes similar to ours, in order to preserve the priority of a mechanic’s or materialman’s lien over a mortgage executed after the commencement of the improvement, the lienor must perfect his lien during the period allowed by statute for filing it. Sawyer v. Sawyer, 79 Wyo. 489, 335 P. 2d 794 (1959); Fisher Lumber Co. v. Verhine, 147 Fla. 670, 3 So. 2d 374 (1941); H. R. Hayes Lumber Co. v. H. M. Jones Drilling Co., 177 La. 626, 148 So. 899 (1933); Brown v. Brown & Co., 25 Tenn. App. 509, 160 S.W. 2d 431 (1941, cert. denied, 1942); Hartsone Concrete Products Co. v. Verkauf, 147 So. 2d 194 (Ct. App. Fla. 1962); Remington v. Mulholland, 118 Cal. App. 479, 5 P.2d 667 (1931). See also, Sunset Lumber Co. v. Bachelder, 167 Cal. 512, 140 P. 35 (1914); Dunham v. Woodworth, 158 Ill. App. 486 (1910); 53 Am. Jur. 2d 793, 810, Mechanics’ Liens, §§ 263, 272.

Since appellant did not file the statement required by Ark. Stat. Ann. § 51-613, and did not file any pleading asserting priority over appellee’s mortgage until April 1970, his lien priority over appellee’s mortgage ceased to exist.

The decree is affirmed.


text:
    Julius T. WILLIAMS v. Ernest C. VARNER
    5-6065
    486 S.W. 2d 79
    Opinion delivered November 6, 1972

      R. H. Mills, for appellant.
    O. /. Taylor and Neale, Newman, Bradshaw & Freeman, for appellee.
   Conley Byrd, Justice.

Appellant Julius T. Williams appeals from a judgment rendered in favor of appellee Ernest C. Varner for $24,000 plus interest in the amount of $1,560.00.

The record shows that on June 3, 1969, Varner had some $60,000 of Nineteen Corporation bonds that he had received in exchange of a 300 acre farm located in Wright County, Missouri. On that date he entered into a contract to trade the Nineteen Corporation bonds to Williams for a motel in Haxton, Colorado. After Williams determined that the bonds were of littlte or no value, he contacted D. L. Hopkins and caused the Nineteen Corporation to retake the bonds and to return the 300 acre farm to Varner. Following the rescission between the Nineteen Corporation and Varner, Williams and Varner on July 3, 1969, entered into another contract whereby Varner was to transfer the farm and $4,000 in cash for the motel in Colorado — (The agreement contained other provisions not here pertinent). After Varner had transferred the farm and the $4,000 cash to Williams and taken possession of the motel, he decided that Williams had misrepresented the motel. In the meantime Williams had disposed of the farm. On September 5, 1969, the parties entered into the third contract involved here in which Williams promised to pay Varner $24,000 upon the sale of the motel. Williams traded the motel to Lloyd Mitchell for some bonds issued by Digital Control Systems, Inc., a Texas Corporation, to Rio Grande Holding Company, Inc. D. L. Hopkins, involved in the Nineteen Corporation, was also president of the Rio Grande Holding Company, Inc. In Springfield, Missouri, Williams offered to deliver to Varner, Digital Control bonds having a face, value of $25,000 in complete satisfaction of the $24,000 obligation. Varner refused upon the advice of his lawyer.

Williams’ defense to the suit on the September 5th contract was lack of consideration and in the alternative that by a subsequent oral agreement Varner had agreed to take the bonds in satisfaction of the $24,000 debt.

POINT I. There is no merit to Williams contention that the trial court erred in overruling his motion for summary judgment. Such orders are not reviewable. See Widmer v. Ft. Smith Veh. & Mach. Corp., 244 Ark. 971, 429 S.W. 2d 63 (1968).

POINT II. Appellant here contends that he was entitled to a directed verdict for the reason that the so-called “rescission contract” of September 5th was not supported by any consideration. This assertion is not supported by our cases. See Afflick v. Lambert, 187 Ark. 416, 60 S.W. 2d 176 (1933), where we said:

“...This court has repeatedly held that, where there is a mutual agreement to modify a contract, the mutual promise of the parties will constitute a sufficient consideration for a valid agreement....”

POINT III. Exhibit No. 4 of which appellant complains is a “Cease and Desist” order issued by the Secretary of State of the State of Missouri directing D. L. Hopkins, M. D. McCurdy, Ellis E. Spitz and Ralph C. Julian, Sr., to cease and . desist from the sale of bonds of Digital Controls Systems, Inc., so long as the bonds and the named parties have not been registered as provided by the Missouri Uniform Securities Act. The only objection to the introduction of the public document was that it was immaterial. However, since appellant before the introduction of the exhibit had asserted that he had tried to give Varner $25,000 worth of bonds, in satisfaction of the debt, we hold that the exhibit was material to show that the asserted offer in Springfield, Missouri, involved bonds that were not negotiable. The record does not show what information, Varner’s lawyer learned, when he checked on the bonds at the time the offer was made, but it does show that he determined the bonds were of no value.

POINT IV. Appellant here argues that the foundation laid for the testimony of Alfred H. Beard as to appellant’s general reputation in the community was insufficient.

The evidence of Beard was that he lived within Qfi miles of appellant, that he knew appellant and had talked with others who knew him and that appellant was the topic of conversation any time as many as two or three people got together. Based upon this information Beard stated that he knew appellant’s general reputation for truth and veracity in the area. We hold that a sufficient foundation was laid to permit the testimony given.

Appellant also complains that the trial court erred in refusing to permit him to cross-examine Beard with reference to his interest in the outcome of the litigation. The record shows that when appellee’s counsel raised an objection to the cross-examination question asked, the trial court said, “I think we have gone about far enough now.” Appellant did not then object to the action of the court but only stated: “No further questions, Your Honor.” In Missouri Pacific Railroad Company v. McDaniel, 252 Ark. 586, 483 S.W. 2d 569, we held in a similar situation that under Ark. Stat. Ann. § 27-1762 (Repl. 1962) an objection in such circumstances is necessary to a review on appeal. For lack of objection we here find the contention without merit.

POINT V. The assertion that the trial court erred in allowing interest from the date of filing of the complaint until date of judgment is without merit. See Busch v. Gecks, 209 Ark. 431, 190 S.W. 2d 625 (1945).

Affirmed.


text:
    Russell CLARK v. Marvin MATHIS
    5-6063
    486 S.W. 2d 77
    Opinion delivered November 6, 1972

      Clark, Clark ér Clark, for appellant.

      Hartje ir Hartje, for appellee.
   Frank Holt, Justice.

The appellant brought this action to enjoin the appellee from obstructing a roadway easement which appellant had purchased from the record owner. Appellant, also, claimed an easement by virtue of an existing road. The appellee responded that he owns, by adverse possession, the lands across which appellant claims the easement. The chancellor resolved the issue in appellee’s favor and cancelled appellant’s asserted easement across the lands. On appeal appellant contends the chancellor “erred in his finding.”

In 1969 appellant purchased the NWM and leased the disputed portion of the SEM of a 160 acre tract of land. Appellee has owned the other two 40’s, the NEM and the SWM of the same 160 acre tract, since 1956. He acquired these two 40 acre tracts from his brother who had owned them since 1943. The land in dispute is triangular in shape, consisting of IVz acres, which is formed by a rural road bisecting the northwest corner of the SE 40 acres. The Wz acre strip lies north of the rural road. The strip, also, adjoins appellee’s 40 acres on the west and his 40 acres on the north. It “corners” appellant’s 40 acres.

When appellant purchased his NW 40 acres in 1969, the appellee permitted him to cross appellee’s adjoining NE 40 for access to the rural road which traverses both of appellee’s tracts. For a more direct access to the road, appellant purchased an easement in 1971 across the triangular strip from the record owner. The appellee refused to recognize the asserted ownership and prevented appellant’s using the purchased easement.

Appellant testified that when he acquired his adjoining property in 1969 there were no visible acts of adverse possession of the triangular strip by appellee. He adduced evidence from other witnesses in the vicinity that they had not observed appellee exercising any dominion or control over the property; also, that it was not sufficiently enclosed and utilized with appellee’s two 40 acre tracts to constitute adverse possession. One witness did observe appellee growing some hay. Since 1956 it is undisputed that taxes on the Wz acres were paid by the record owner from whom appellant purchased his easement.

Appellee and his predecessor in title, his brother, testified that they had exercised acts of hostile dominion over the disputed strip beginning in 1943 when appellee’s brother purchased the two adjacent 40 acre tracts. As indicated, appellee purchased the tract from his brother in 1956. Each believed that their deeds included the Wz acres and occupied it with that belief as owners. During this time, the triangular strip was substantially enclosed with appellee’s property by fences which he and his brother repaired and maintained during their individual occupancy. The Wz acres were utilized during this time for pasturing, row cropping, and growing hay and were considered an integral part of the farming operation on appellee’s two 40 acre tracts which “cornered” each other. This disputed strip was, also, used as a passageway between these two 40’s. During the hay season a cross fence on the north boundary of the Wz acres contained appellee’s cattle. Appellee adduced evidence from local witnesses to corroborate his claim of adverse possession. The evidence was in conflict that a passageway or road had existed across the triangular strip directly to the rural road.

The chancellor, without objection, viewed the disputed premises in order to assist him in resolving the conflicting versions. Taliaferro v. Gamble, 228 Ark. 460, 307 S. W. 2d 884 (1957), Clay v. Dodd, 238 Ark. 604, 383 S. W. 2d 504 (1964).

When the evidence is conflicting or evenly poised, or nearly so, the judgment of the chancellor on the question of where the preponderance of the evidence lies is considered as _persuasive. Munn v. Rateliff, 247 Ark. 609, 446 S. W. 2d 668 (1969). In the case at bar, after a review of the testimony and exhibits, we cannot say the chancellor’s finding that the appellee owns the property by adverse possession is against the preponderance of the evidence.

Affirmed.


text:
    Arkansas STATE HIGHWAY COMMISSION v. W.S. McKOWN and Viola McKOWN
    5-6054
    486 S.W. 2d 525
    Opinion delivered November 13, 1972

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Lightle, Tedder &r Hannah, for appellees.
   Carleton Harris, Chief Justice.

This is a highway condemnation, case. Appellant, Arkansas State Highway Commission, condemned in fee 23.13 acres from a total ownership by appellees of approximately 240 acres, involving the taking of a strip of land across the property dividing it into two residuals. The land north and west of the highway facility contained 154.36 acres, and that south and east of the facility contained 62.5 acres which were landlocked by the taking. On trial, W.S. McKown, who, together with his wife, is an appellee, testified to damages of $12,000 and his expert witness testified to damages of $9,722. The jury returned a verdict of $11,000 as just compensation, and from the judgment entered in accord with the verdict, appellant brings this appeal. For reversal two points are asserted, the first being that the trial court erred in permitting the testimony by the landowner concerning an offer to purchase the land involved in the litigation.

We agree with appellant that error was committed by the admission of this testimony. In Arkansas State Highway Commission v. Elliott, 234 Ark. 619, 353 S.W. 2d 526, this court held that evidence of an unaccepted offer to purchase is not admissible to establish the fair market value of particular property in condemnation proceedings. This holding was reiterated in Arkansas State Highway Commission v. Jackson County Gin Co., 237 Ark. 761, 376 S.W. 2d 553, where this court, referring to Elliott, stated, “After discussion of the testimony and review of a number of authorities, this court unequivocally stated, ‘we hold that the evidence of an offer to purchase is not admissible to establish the fair market value of particular property’.” Appellee argues that appellant’s objection was not timely made, and the evidence was therefore admissible. We do not agree. The answer of the witness to the original question asked by McKown’s attorney was not responsive and it was not until four questions later that it was clear that the witness was using the offer as a basis for the value of the property before the taking. On objection being made, the court held that the witness could answer that he turned down the offer “as going to the credibility of his own testimony”. We do not understand this ruling and are rather of the opinion that a clerical error was made. No one had questioned whether such an offer had been made and the name of the person who allegedly made the offer was not shown. At any rate, the evidence was not admissible and reversible error was committed.

It is also asserted that the court erred in refusing to allow appellant to adduce evidence of sales made of landlocked property which occurred subsequent to the date of the taking under discussion. Henry Williams, an expert witness for appellant, testified that he knew of sales of landlocked residuals in the area of the property under discussion. When the court determined that these sales were made subsequent to the date of taking, no further testimony was permitted. It was the theory of appellant that these sales would have substantiated the opinion of the witness relative to the after value of the property in question. However, after the court refused to permit the testimony, there was no offer of the evidence that would have been given by Williams, and we accordingly are not in a position to pass on this point.

Because of the error committed under point one, the judgment is reversed, and the cause remanded.

It is so ordered.

       “Q. Do you have an opinion, Mr. McKown as to what was the fair market value of your tract of land, designated as Tract 47, immediately before the Highway Department filed its Condemnation on July 2S, 1968?
      A. Well, I was offered {250 an acre for it and turned it down.
      Q. Do you have an opinion as to the value?
      A. Yes, sir, that’s what I think.
      Q. What is your opinion as to the total value of it?
      A. Afterwards?
      Q. No, immediately before, what is the total value?
      A. |60,000.
      Q. You say you had an offer at that price?
      A. Yes, sir, I was offered that.”
      Counsel for the department then objected to the evidence.


text:
    Troy PRICE et ux v. Ray DAUGHERTY et al
    5-6056
    486 S.W. 2d 528
    Opinion delivered November 13, 1972

      Brockman, Brockman if Gunti, for appellants.

      Bridges, Young, Matthews if Davis and Reinberger, Eilbott, Smith if Staten, for appellees.
   George Rose Smith, Justice.

This is an action brought by the appellants, husband and wife, to recover damages for the wrongful death of their 19-year-old son, Troy Glyn Price. The appellees, defendants below, are Ray Daugherty, on whose farm young Price was working at the time of his accidental death, and W.T. Carter, whose welding shop made the stump grinder that was involved in the accident. In appealing from a verdict and judgment for the defendants the appellants contend primarily that the court erroneously instructed the jury.

The facts must be narrated in some detail. A stump grinder is used to grind away low stumps on cleared land. The stump grinder consists essentially of a platform that has a belt-driven drum at the front end, two rubber tires at the rear end, and a powerful motor, mounted on the platform, that drives the grinding apparatus. The latter is a cylindrical sheet-iron drum which has cutting teeth affixed to the outer surface of the drum.

The entire unit' is pulled by a tractor, on which the operator is seated. In grinding stumps the operator first starts the stump grinder’s own motor, which revolves at a pre-set speed. The operator then mounts the tractor and drives to a stump, previously marked in some way to show its location. The toothed grinding drum is either lowered to the stump from above or brought slowly into contact with it from the side or rear, the operator remaining on the tractor during the process. In only a few minutes the powerfully driven teeth grind away the exposed part of the stump.

The fatal accident happened in the late afternoon, while young Price was grinding stumps by himself. The record makes it clear that the revolving toothed drum came to pieces, apparently because it was defectively welded together. The disintegrating parts of the drum were thrown forward and upward with great force. Price was killed immediately by being struck in the head by a flying piece of metal. The tractor seat was also damaged. When Price’s body was discovered a few minutes later it was lying near what remained of the stump grinder, whose motor was still running. The tractor had become disengaged from the stump grinding unit and had traveled by itself for an eighth of a mile or more before coming to rest in a canal.

First, the appellants contend that the court erred, in the light of the facts, in submitting to the jury the doctrine of assumption of risk, AMI 612 (Civil, 1965) being given. That instruction told the jury that if a dangerous situation existed, which was known to Troy Glyn Price, and if he voluntarily exposed himself to that risk, the jury should answer “Yes” to an interrogatory on assumption of risk. The interrogatory was in fact so answered.

We agree that the court erred. Assumption of risk occurs only when the injured person actually knows and appreciates the danger. The standard is a subjective one, being based upon what the particular person in fact sees, knows, understands, and appreciates. McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972).

Here there is proof that a stump grinder is a highly dangerous machine, but that testimony had to do with the normal operation of a well-built stump grinder. Needless to say, the defendants did not attempt to prove that the stump grinder which killed young Price was so defectively put together that it was for that reason highly dangerous. There is no proof that Price was aware of the defects in the machine. Yet that is the precise hazard that he had to be aware of in order to assume its risk.

There is an abundance of testimony from an expert witness that the grinding drum flew apart because it was poorly welded together. That, however, was a latent defect, to be detected only by one having some knowledge of or experience in welding. There is no testimony that Troy Glyn Price, a 19-year-old farm hand, had sufficient knowledge of welding to enable him to appreciate the hidden danger, much less that he actually knew of it. Hence the instruction should not have been given.

Counsel for the appellee Daugherty remark in their brief, in passing and without citation of authority, that any error in the submission of assumed risk was cured by the jury’s finding, in response to interrogatories, that neither Daugherty nor Carter was negligent. Our rule, however, is that error is presumed to be prejudicial unless we can say with assurance that it was not. Ark. State Highway Commn. v. Fougerousse, 248 Ark. 310, 451 S.W. 2d 459 (1970). Here the erroneous instruction improperly drew the jury’s attention to the possibility that Troy Glyn had assumed the risk of some unspecified danger, thereby diverting the jury’s minds from the real issue, that of the defendants’ negligence. With the case in that posture we certainly cannot say with confidence that the error was harmless. That the jury answered the assumption of risk interrogatory in the affirmative shows beyond any possibility of doubt that that extraneous issue was actually discussed and passed upon during the jury’s deliberations. It should not have been allowed to arise.

Secondly, we also hold that upon the evidence adduced at the trial below the court erred in submitting an interrogatory (actually unanswered) by which the jury might have found Troy Glyn to have been negligent. The expert testimony was to the effect that the poorly welded seams could have been detected by any one who had done any welding, had been around welding, or had had any experience in that field. Carter, who owned, and worked in, the welding shop where the stump grinder was welded together, undeniably had the necessary experience to enable him to detect the latent danger that is said to have caused the stump grinder in question to fly apart. Daugherty, the owner of the farm, had a welding shop on his place and stated in his testimony that he tries to weld a little bit if the occasion or necessity requires it, but he is not a qualified welder. Moreover, Daugherty was under a duty to exercise ordinary care to furnish young Price with a reasonably safe place to work. Chapman v. Henderson, 188 Ark. 714, 67 S.W. 2d 570 (1934). Thus the jury, had their minds not been distracted by the matter of assumed risk, might have found either Carter or Daugherty to have been negligent.

On the other hand, our attention is not called to any testimony indicating that Troy Glyn Price, a 19-year-old college student, had had any experience in the field of welding. We do not discuss the issue at length, however, for the question may be developed in greater detail upon a retrial of the case. All that need be said at this point is that the jury, with no eyewitness evidence about the precise events immediately preceding Price’s lonely death, could only speculate or conjecture about the possibility that his own negligence in operating the equipment had somehow played a part in the accident.

Thirdly, we find no error in the court’s instructions telling the jury that the plaintiffs had the burden of proving, with respect to Carter, that the stump grinder was defective or unsafe when he delivered it to Daugherty, and, with respect to Daugherty, that it was defective or unsafe when Troy Glyn Price began to operate it on the day of his death. No reason is suggested why those instructions do not correctly fix the points at which the negligence of the defendants was to be evaluated. Fourthly, the court’s ruling in response to a question by the jury need not be reviewed, for there is no likelihood that the same situation will be presented upon a new trial. Finally, the appellant Carter is not in a position to complain of the trial court’s refusal to direct a verdict for Carter at the close of the plaintiff’s proof, for the point was waived by Carter’s action in offering his own proof. Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W. 2d 306 (1963).

Reversed.

Harris, C.J., not participating.