text:
    Ray Scott v. The Citizens Bank, Batesville, Ark.
    4634
    431 S.W. 2d 832
    Opinion Delivered September 30, 1968

      Lightle & Tedder for appellant.

      Bennett & Purtle for appellee.
   Carleton Harris, Chief Justice.

This case involves a certificate of deposit. Ray Scott of Bald Knob, Arkansas, and Ernie Gaskin were stockholders in the Americana Motel at Bald Knob. A few months after the commencement of the operation of the motel, Scott decided to sell his stock to Archie Mason for $19,-000.00. Gaskin and Mason borrowed the money from Citizens Bank of Batesville, and executed their note on June 15, 1964, for that amount, the due date being December 15, 1964. Scott guaranteed the payment of the note by executing a “Limited Guaranty Agreement,” and by assigning to the bank a certificate of deposit in the amount of $15,000.00. As the due date of the note approached, it became apparent that the note would not be paid. Gaskin, by telephone, contacted Scott, who was then living in Valdosta, Georgia. On December 19, the bank wrote Scott, and, according to appellant’s contention, sent a new limited guaranty agreement for execution, the purpose being to guarantee a six months ’ extension of the June 15, 1964, note. Appellee contends that the new guaranty agreement was for the purpose of guaranteeing a new note to be executed by Gas-kin and T. B. Jackson in lieu of the Gaskin-Mason note. This instrument was not dated when received by Scott, and the space for the indentity of the co-signer of the note was also blank. The agreement did however refer to the note dated June 15, 1964. Scott dated all copies, signed, kept one copy and returned the other two to appellee. Thereafter, apparently about January 28, 1965, the bank relinquished the Gaskin-Mason note to Mason, and accepted a new note from Gaskin and T. B. Jackson. Scott contends that he knew nothing about this substitution of Jackson for Mason until the summer of 1965.

The Gaskin-Jackson note became due on June 16, 1965, was not paid, and on July 26, 1965, the bank accepted a payment of $2,000.00 and interest; no court proceedings were instituted, and another payment with interest was accepted on March 19, 1966. Scott contends that in the first instance, the note due in June, 1965, was extended to January, 1966, and that the note was subsequently extended to June 15, 1966. It is his contention that both extensions were without notice or without his consent. On July 1, 1966, the bank applied Scott’s certificate of deposit to the Gaskin-Jackson note. Appellant had made a demand for the certificate, and upon being refused, instituted suit against the bank in the Circuit Court of Independence County. The bank in its answer sought reformation of the second guaranty agreement, contending that a scrivener’s error had occurred in preparing this instrument with reference to the June 15, 1964, date; that the agreement actually referred to the subsequent note executed by Gaskin and Jackson on January 28, 1965. The case was tried by the Independence Chancery Court, to which it had been transferred by the Circuit Court, and from an adverse decree, appellant brings this appeal. For reversal, it is first asserted that the court erred in granting reformation of the second limited guaranty agreement dated December 15, 1964, so as to apply to the note of Gaskin and Jackson of January, 1965. This is the most important point in the litigation, and the controlling one.

Appellant’s argument is that he was sent the second guaranty agreement while residing at Valdosta, Georgia, and that he thought he was agreeing to extend the Gaskin-Mason note until June, 1965. This agrument is supported by the heretofore mentioned fact that the instrument referred to the note (which had been signed by Gaskin and Mason) of June 15, 1964. This is typed into the instrument, and Scott left all the blanks intact, except that he filled in the date of the agreement between himself and the bank as December 15, 1964. Scott asserts that he did not know about a new note signed by Gaskin and Jackson until the summer of 1965, and after his return to Arkansas. In fact, he testified that he had never heard of T. B. Jackson until after returning to this state.

Manual Conyers, Executive Vice-President of Citizens Bank, testified that he was the bank official who handled this particular transaction, and he stated that the reference to the note of June 15, 1964, was a scrivener’s error; that the date should have been January 28, 1965, the date of the new note. The witness said that he did not know how the error occurred, though it appeared most likely that the mistake was made by an employee of the bank. This alleged error was the basis for the bank’s prayer for reformation of the instrument. Mr. Conyers also testified that Scott knew that Mason would no longer be “on the note,” and that instead, Jackson would execute the new note; however, he was unable to state how he knew this fact to be true, or pinpoint just when Scott received that information from him. The witness said that he had some telephone conversations with Scott, but he finally stated that he did not know when Scott received the information. The testimony of the witness is not at all positive; indeed, to the contrary, the portion relating to whether Scott knew of the change in note signers is rather notable for uncertainty, and if this were the sum total of the testimony, a different result might well be in order.

However, testimony developed during the examination of Scott is entirely in conflict with appellant’s assertions. On cross-examination, counsel for appellee asked if appellant recalled the taking of his (appellant’s) discovery deposition, at which time certain questions and answers were given. The witness replied that he did remember. Thereafter, the record reflects the following:

“Q. And you stated at that time, and correct me if I am wrong, that this originally was a matter of Mason and Gaskin; and, now, Mason had got out, and you said, ‘and Jackson has come in.’ That is right?
A. Yes, sir; at that time, I didn’t know exactly what the date was at this time.
Q. Now I asked you this question: This certificate of deposit for $15,000.00 was placed as security for the payment by Jackson and Gas-kin? And you answered: Yes, sir, just guaranteeing the loan that they secured from the Bank.
A. That was a mistake; it should have been ‘Mason;’ Jackson wasn’t even in it; I didn’t know anything about that until later in .’65.
* * *
Q. At the time of the discovery deposition, I asked you particularly what your objection was to paying this, and I believe you said that they extended time to Gaskin and Jackson.
A. Well, that was a mistake; it should have been Mason.
Q. I handed you that particular note of Gaskin and Jackson and asked if that is the note which you guaranteed with the deposit. And you answered: Of course this note here was guaranteed when I was in Georgia, I imagine, with Jackson on here; it was probably sent to Gas-kin; I don’t know. See, this particular one, I was probably in Georgia when Jackson signed it; so I wasn’t in Arkansas at this time; but the $19,000.00 was the note that I had the CD on. Was that your answer then?
A. This was still a mistake on the names.”

Subsequently, during the trial of the case, Scott was called as an adverse witness. Counsel recalled to the witness that he had asked Scott (during the taking of the deposition) how appellant became involved in the matter. He was then asked about the following answers given at that time.

“Well, when I sold my part out to Mason.
Question. Sold your part of what?
Answer. The motel in Bald Knob; and I guaranteed with a certificate of deposit of $15,000.00 to cover the part they borrowed.
Then Mr. Bennett asked you:
Question. The part they borrowed; and who are ‘they?’
Answer. Mason and Gaskin.
Question. Well, now Mason has gone out of this, and I believe this is----
Then you interrupted:
And Jackson has come in, that’s right.
Do you remember answering that?
A. Well, I am sure I did if it is on there.
Q. I am asking you again if these are correct statements; remember, please, you were under oath at the time:
Question. This certificate of deposit for $15,000.00 was placed as a security for the payment by Jackson and Gaskin?
Answer. Yes, sir, just guaranteeing the loan that they secured from the Bank.
And Mr. Bennett had just before handed you this limited guaranty agreement when you answered that question.
Question. All right. Now what did you understand that guarantee to imply or to mean?
Did you answer:
Well, to be paid within 6 months with my signature guaranteeing an extension.
Question. Now extension of what?
Answer. Well, the extension of the loan, if we wanted to.
Question. Now did you understand that if Jackson and Gaskin did not pay the Bank according to their note that your certificate of deposit would be applied to pay the note?
Objection by Mr. Tedder: The agreement speaks for itself.
Question by Mr. Bennett: Well, now he has his objection of note. If you can answer it, answer it.
Answer. No answer.
Question. Let me phrase it this way.
No other question.
Answer. Well, on the agreement, of course, Gaskin and Jackson at 6 months has to pay the $19,-000.00 ; if it is renewed for 6 months, I have to give my signature of the extension myself.
Question. Did you make those statements?
A. Yes, sir, if that’s on----
Q. Were those true statements?
A. I don’t think so.”

Counsel subsequently asked Scott about his understanding of what would happen if no extensions were made. Appellant had answered: “That the bank would file against Gaskin and Jackson to collect.” At the instant trial, Scott said: “It still should have been Mason. ’ ’

It will be observed that the name “Jackson” does not come into the record just once or twice, in which event it would be possible that Scott could have overlooked the name “Jackson” being used instead of “Mason;” actually, Scott mentioned the name “Jackson” himself.

A letter appears in the record from Scott’s attorney in January, 1966, the status of the Gaskin-Jackson note being the subject matter of the letter. Appellant also admitted this circumstance. From the record:

“Q. And during that time that Mr. Murphy was representing you, did he not write you from time to time about Mr. Jackson?
A. Yes, sir.”

We think this testimony by Scott is clear, convincing and decisive evidence that he was fully aware of the fact that Jackson had been substituted in the new note for Mason. Relative to this evidence, appellant simply reiterated, “That was a mistake.”

Scott testified that he did not learn about the substitution of names until he returned to Arkansas in the summer of 1965. This being true, it is difficult to understand why appellee did not institute a suit at that time, instead of waiting a year. Logic dictates that one normally would take action immediately, or within a short time after learning that he had been misled, and was being held responsible for the debt of a person he did not even know.

At any rate, we are of the opinion that the testimony quoted from the record also answers appellant’s argument relative to reformation. Since we have concluded that the Chancellor was justified in holding that the second guaranty agreement was executed by Scott Avith full knowledge that a new note was to be made and signed by Jackson, it follows that appellant would likeAvise have known that the date of the note mentioned in this guaranty agreement was a mistake. In other words, the first holding controls the second. The fact that the second note had not been executed at the time of the signing of the guaranty agreement is of no effect if Scott was aware of the purpose of the guaranty agreement (Avhich the trial court found was signed by appellant as a matter of guaranteeing the Jackson note).

It is argued that the court erred in its decree, because the guarantor did not agree to the last extensions of the note. In the first place, we are inclined to agree Avith the bank’s contention that no extension was granted ; rather, it appears that the bank was simply holding a past due note. Scott testified that all extensions granted were in writing. The record reveals only one writing relating to this argument. A letter was dirented to Scott from Conyers on March 22, 1966, as follows :

“Dear Ray:
Enclosed you will find our check for $600.00 which is for interest earned by your $15,000.00 CD up to June 15th last year. We are glad to be in a position to release this to you.
Ray, regarding the balance, their note is still past due since January as far as our records are concerned. However, I did promise them we would take no legal action to collect before June 15th and with the $2,510.00 paid I think that was a good bargain for all of us.
Peel free to call or come over any time you think we can be of help.”

This letter does not appear to be an actual extension. 10 C.J.S. Bills and Notes §263 (1938) defines the term “extension” as follows:

“ ‘Extension’ of time of payment means a valid and binding agreement to delay the enforcement of the instrument.”

See also Stone and McDonald v. State Bank, 8 Ark. 141, wherein we recognized a distinction between granting an extension, and simply failing to institute suit.

It is also true that there, must be consideration to extend a note. Holmes v. Thompson, 240 Ark. 818, 402 S.W. 2d 400, and cases cited therein. Not only do we find no evidence of a written extension, but likewise, we find no testimony indicating that a valid consideration was.paid for any alleged extension. Holmes v. Thompson, supra, holds that a payment of interest which is past due is not sufficient consideration for a supplementary contract.

Finally, it is urged that the agreement is not binding upon appellant, because no representative of the bank signed the agreement. A sufficient answer to this argument is that both parties acted under and in accordance with the agreement. The proof reflects that the hank deducted the interest due on the Gaskin-Jackson note before sending the balance of interest on the certificate of deposit to Scott. Scott testified that the first interest check that he received on the certificate of deposit was for $600.00, hut he admitted that in July of 1966 he received only $229.00. From the record on cross-examination:

“Q. Do you know why you received only two hundred, twenty-nine?
A. It was subtracted from the interest that Gas-kin was supposed to pay is what I presume, now. It was the difference is what I think; I think that is where it come from. We have letters on it; I think that is where it come from.
Q. I see. The interest from your CD was used to pay the interest on this note, and they sent you the balance; is that correct?
A. What was coming back to me, that is what they sent me.
Q. Coming back to you from what?
A. From the certificate of deposit, I imagine. We have the records, receipts and everything on it.
Q. Coming hack to you from the certificate of deposit after something had been deducted. What was deducted?
A. I don’t know.
Q. Well, I will hand you this letter and maybe it will refresh your memory.
# # #
A. This is interest the CD earned; all right. The note earned $405;16, and a check was sent to me, $229.42.
Q. So they deducted something from your CD earnings f
A. Yes, sir.
Q. And what was that!
A. That was interest on the CD.”

The letter from Conyers to Scott, referred to in the above testimony, states:

“We are deducting the interest the GaskinJackson note earned from the interest your certificate of deposit earned and are enclosing our check for the difference.
Int. your C.D. earned $634.58
Int. Gaskin & Jackson note earned 405.16
Our check enclosed 229.42”

Accordingly, it seems clear enough that Scott knew that a large part of his interest check was being used to pay the interest on the Gaskin-Jacks on note, and it is also interesting to note that when he- subsequently filed his complaint against the hank -for $15,000.00 (representing the amount he contended to he due under the certificate of deposit) his prayer for relief did not include a return of his $405.16.

Summarizing, we think the evidence, particularly the actions and testimony of Scott, justified the Chancellor in holding that Scott was aware that a new note was being executed, with the substitution of Jackson for Mason, and, under this evidence, there was no error in decreeing reformation of the contract.

Affirmed.

Ward, J., not participating.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    W. W. Matthews v. Travelers Indemnity Ins. Co.
    5-4656
    432 S.W. 2d 485
    Opinion Delivered September 30, 1968
    [Rehearing denied November 4, 1968.]

      Garner & Parker for appellant.
    Crouch, Blair & Cypert for appellee.
   George Rose Smith, J.

This is an action for malpractice brought by the appellant, as administrator of his deceased wife’s estate, against the appellee as the insurer of a nonprofit corporation that operates a testing laboratory in Fayetteville. The trial court sustained a demurrer to the complaint on the ground that the causes of action asserted by the administrator were barred by limitations. This appeal is from the ensuing order of dismissal.

The complaint alleges that on September 6, 1964, Mrs. Matthews underwent an operation for the removal of suspect tumorous tissue. During the operation samples of the tissue were sent to the laboratory, which reported on September 14 that the tissue was not cancerous. The patient’s condition worsened to such an extent that on January 22, 1965, her attending physician ordered a re-examination of the tissue. On January 29 the laboratory reported that it had made a mistake— that Mrs. Matthews actually was suffering from a malignancy. The complaint asserted that as a result of the laboratory’s negligence Mrs. Matthews’s condition so deteriorated that she was beyond medical help ,- that she suffered great mental and physical anguish prior to her death on November 28, 1965; and that the plaintiff was thereby damaged in the sum of $100,000. The suit was filed on June 14, 1967.

In sustaining the defendant’s demurrer the trial court applied the two-year statute of limitations governing medical malpractice, which provides that the date of the accrual of the cause o.f action shall be “the date of the wrongful act complained of, and no other time.” Ark. Stat. Ann. § 37-205 (Repl. 1962). If that is the controlling statute, then the filing of the suit on June 14,1967, was too late, whether the wrongful act occurred oil September 14, 1964, the date of the first examination of the tissue, or on January 29, 1965, the date on which the mistake was corrected.

Contrariwise, the appellant insists that the case is governed by the wrongful death statutes, which provide that the action shall be commenced within three years after the death of the person alleged to have been wrongfully killed. Ark. Stat. Ann. §§ 27-906 and -907 (Repl. 1962). In that view the action was timely, because death occurred on November 28, 1965, and the suit was brought on June 14,1967.

In our opinion each statute is partly controlling. It is essential to recognize that two separate causes of action are being asserted by the appellant in his capacity as administrator of his deceased wife’s estate. The complaint seeks in part to recover compensation for the physical and mental anguish suffered by Mrs. Matthews before her death. At common law that cause of action would not have survived the death of Mrs. Matthews, but under our survival statute it may be asserted by her personal representative. Ark. Stat. Ann. §27-901. In that situation the personal representative is asserting the decedent’s cause of action and must therefore bring suit within the period allowed by that statute of limitations which would have governed if the injured person had not died. Smith v. Missouri Pac. R.R., 175 Ark. 626,1 S.W. 2d 48 (1927). That being the two-year malpractice act in this case, the administrator’s attempt to assert Mrs. Matthews’s cause of action for her physical and mental pain and suffering* is barred, because the suit was not filed within two years after the wrongful act complained of.

An administrator is also entitled to assert the cause of action for wrongful death that was created by statutes modeled after Lord Campbell’s Act. Our statute, with respect to the case at bar, creates a cause of action in the surviving spouse for his loss of consortoum and for his mental anguish. Ark. Stat. Ann. §27-909. That cause of action may be asserted, as we have indicated, within three years after the death of the person alleged to have been wrongfully killed. Here the administrator’s suit upon that cause of action was timely.

We are not overlooking the argument that the administrator’s action for wrongful death is to some extent derivative, in that it may be extinguished either by a suit for personal injuries prosecuted by the injured person to a final judgment during his lifetime, Restatement, Judgments, § 92 (1942), or by the running of the applicable statute of limitations during the injured person’s lifetime. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), app. dism. 285 Fed. 2d 427 (1960). Here, however, the two-year malpractice statute had not run when Mrs. Matthews died on November 28, 1965. We are accordingly of the opinion that the administrator was entitled to assert the cause of action for wrongful death at any time within three years after Mrs. Matthews’s death. Where the issue is doubtful our policy is to favor the longer of two statutes of limitation. Jefferson v. Nero, 225 Ark. 302, 280 S.W. 2d 884 (1955).

The appellee also argues that the complaint is defective in two other respects: (a) It fails to allege that the nonprofit corporation was not subject to suit in tort, within the statute authorizing direct action against the liability insurer, Ark. Stat. Ann. § 66-3240 (Repl. 1966); and (b) it fails to assert the amount of coverage that was afforded by whatever liability policy the appellee may have issued to the nonprofit concern. We think those matters might properly have been raised by a motion to make the complaint more definite, but we do not consider such defects in the pleading to be subject to demurrer.

The judgment is affirmed with respect to the first cause of action we have discussed and is reversed with respect to the second one.

Jones, J., dissents.


author: Paul "Ward, Justice.

text:
    J. M. Pennington, et al v. J. C. Oliver, County Clerk, et al
    4630
    431 S.W. 2d 843
    Opinion Delivered September 30, 1968

      Gaughan, Laney, Barnes & Roberts for appellants.

      Frank W. Wynne for appellees.
   Paul "Ward, Justice.

This appeal challenges a decree of the chancery court approving “ ... a 10% across-the-board assessment increase on all real estate in Dallas County”.

The case was tried on the pleadings and a stipulation of facts which, for brevity and clarity, are summarized below.

On September 30, 1967 certain residents, citizens and taxpayers of said county (referred to here as appellants) filed a “Petition”, alleging, in substance: J. O. Oliver is county clerk and secretary of the Dallas County Equalization Board (referred to hereafter as Board); D. C. Ellen, Steve Garlington and Alton Thomas claim to be members of said board (they are appellees here); The clerk has notified appellants that the Board has “made ten percent across the board of assessments all real estate in Dallas County”, but no increase against any improvements or personal property; the said Board members were not selected in the manner required by law, and do not possess the qualifications required by law; said members did not take the oath of office within the time required by law, and failed to keep journal proceedings, and; the court should restrain said members from “extending the illegal and unauthorized assessments”. The prayer was in accord with the last allegation.

The answer by appellees, while quite lengthy, is, in essence, a general denial together with a detailed justification of their appointments and actions and will be mentioned later. Appellees asked that appellants’ complaint be dismissed.

The issues were submitted to the trial court on appellants’ Motion for Summary Judgment, on a stipulation of facts, and on brief submitted by both sides. On December 16, 1967 the court entered a decree denying an injunction as requested by appellants, and holding (a) that the Board is validly constituted and (b) the “10% across-the-board assessments increase ... is proper ... ”

On appeal appellants rely on only one designated Point for a reversal. It reads:

The chancellor erred in holding that the members of the equalization board of Dallas County, Arkansas, were qualified to serve as members of said equalization board and that such improper selection did not invalidate all acts of the equalization board, specifically a 10% across-the-board increase on the value of real estate in the county. ’ ’

We deem it unnecessary to reply to all the arguments and citations of cases presented on appeal by appellants, because we have concluded the case must be affirmed on other grounds explained below.

It is conceded by appellees that the Board members here involved were not selected, in every detail, as is set forth in Ark Stat. Ann. § 84-702 (Repl. 1960) although they were selected within the purview of the statute.

Soon after July 1, 1967 the Board was notified by the Assessment Coordination Division of the State that the county would lose much needed school funds because of a 17% assessment. At this time two members of the Board resigned and one member’s term had expired in May, so it appeared necessary to fill the two vacancies before August 1, 1967 when, under the statute, the Board was to begin its work. In this emergency situation the vacancies were filled as presently set out.

Steve Garlington, who was, concededly qualified, had been a member previously and was reappointed in May 1967, when his term expired, by the County Judge as provided by the statute.
D. C. Ellen, an elector and owner of real estate, was appointed by the Superintendent of Schools (at the request of the County Judge) when W. B. Barnes was forced to resign from the Board because of poor health. This method did not comply with the statute.
Alton Thomas, an elector who had been a holder of real estate for many years and who still had an interest in real estate, was selected by the Mayor and councilmen of the largest city in the county (at the request of the County Judge) to take the place of Clark Jordan who had resigned for business reasons.

We set out the above details to show that, when the emergency arose, the mentioned officials apparently acted in good faith, and, in doing so, followed the requirements of the statutes as fully as possible under the circumstances.

Under the undisputed facts summarized above we conclude that Garlington, Ellen Thomas were defacto members of the Board, and that their actions were therefore valid. This is in accord with the holdings of this Court in Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279. There we find this statement:

“A person who enters into an office and undertakes the performance of the duties thereof by virtue of an election or appointment, is an officer de facto, though he was ineligible at the time he was elected or appointed, or has subsequently become disabled to hold the office. Indeed, it is settled by a current of authority almost unbroken for over 500 years in England and this country, that ineligibility to hold an office does not prevent the ineligible incumbent, if in possession under color of right and authority, from being an officer de facto with respect to his official acts, in so far as third persons are concerned.”

The Gerlach case also cited McClendon v. State, ex rel, 129 Ark. 286, 195 S.W. 686 as holding “that the qualifications of a de facto alderman could not be inquired into in a collateral proceeding...” The proceeding in this case is, of course, a collateral attack on the rights of appellees to serve on the Board.

Appellants make two other arguments for a reversal, but they must also be rejected. One is that the 10% across-the-board assessment on real estate was not fair and equitable. The other is that the Board did not keep minutes as required by statute. The answer to the first argument is that no proof was offered to show anyone’s property was assessed unfairly, and furthermore this point was not argued in chief by appellants. The answer to the second argument is that the stipulations provide that all records of the Board “will be made available for inspection by the Chancery Court Judge” upon his request.

Affirmed.

Harris, C. J. and Byrd J., dissent.


author: Lyle Brown, Justice.

text:
    Elvia L. Reynolds, trustee v. Ray Davis, et ux
    4659
    431 S.W. 2d 841
    Opinion Delivered September 30, 1968

      Herrod & Cole for appellant.
    Wright, Lindsey & Jennings for appellees.
   Lyle Brown, Justice.

Ray Davis and wife brought this suit to recover the purchase price they paid for lands they bought from the Reynolds heirs. They alleged misrepresentation concerning gas royalties produced by two wells. The chancellor set aside the transaction and the heirs’ trustee appeals. Appellant’s principal contention is that any representation as to royalties merged in the conveyance. Secondly, they question the sufficiency of the evidence. Finally, it is argued that the Davises could not return good title because they had encumbered the land with a mortgage.

The heirs of IT. R. Reynolds owned a 100-acre tract of land in Conway County. There were two natural gas wells in a unitized block from which the Reynoldses received royalties from Humble Oil. That was because the 100 acres was included in the unit. Elvia L. Reynolds was designated as trustee by the Reynolds heirs, with authority to sell the lands in fee. Marie Reynolds Arendt, one of the heirs living in Little Rock, contacted Dan Baldwin of Block Realty Company. She and Baldwin were business acquaintances, and on behalf of the heirs Mrs. Arendt gave Baldwin a listing.

With reference to the listing contract, here is Baldwin’s version: In response to a telephone call from Mrs. Arendt, he went to her home. She described the land and related that it benefitted from two gas producing wells. The heirs received, so she said, between $1500 and $1800 per year in gas royalties from Humble. A listing with Block was prepared and Mrs. Arendt executed it for the Reynolds heirs. Baldwin’s knowledge of the property came exclusively from the interview with Mrs. Arendt. The property was advertised by Block in two Little Rock newspapers. The ad referred to the gas royalties: “Drawing $1500 a year royalty, more later as gas line conies through.” That reference comported with a notation in the listing signed by Mrs. Arendt.

The same witness gave this version of the sale to appellees Ray Davis and wife: Davis responded to the advertisement by telephoning Baldwin. Davis then drove to the property and on his return he again contacted Baldwin and told Baldwin he was interested. The representation as to royalties was repeated. Baldwin tried to confirm it by contacting Humble, but they refused to divulge the information, which Humble considered confidential. A sale price of $20,000 was agreed upon and the offer and acceptance was drafted. In a space reserved for special conditions was typed this language: “This offer is conditioned that the producing gas wells are now paying royalties of $1,300.00 or more annually.” Ray Davis and wife signed the offer. Elvia Reynolds came to Little Rock from Morrilton and signed in his capacity as trustee. Elvia was accompanied by a brother, and Baldwin testified that both men read the offer and acceptance.

Ray Davis was the only other witness for appellees. Summarizing: He learned from his first conversation with Baldwin that Mrs. Arendt could give him details. In a telephone conversation, Mrs. Arendt told Davis that the wells were producing more than $1500 annually. She said the land had to be sold to settle the estate. Davis relied on the assurance given by Mrs. Arendt and would not have purchased the land in the absence of those representations. His royalty income for the year 1966 was $616.68. He was paid $600 in royalties for the first nine months of 1967 and the total for that year would run between $700 and $750. The royalties received by the Reynolds heirs were stipulated as follows: 1962, $1,416.24; 1963, $1,334.27; 1964, $1,220.36; and 1965, $630.06.

So much for plaintiffs-appellees ’ testimony. Appellants produced the testimony of three of the Reynolds heirs. Elvis conceded that he had no objection to his sister signing the listing; he signed the offer and acceptance; he read part of it bnt did not realize it contained a provision about royalty income; it was his idea it was paying around twelve to fifteen hundred dollars a year; each of the heirs received separate checks; it was true the payments had been on the decline in late years; and he had never made a representation about royalty production. Marie Reynolds Arendt related her conversation with Mr. Baldwin of Block Realty: She signed the listing but was not aware of all its contents ; she told him the royalties varied from twelve to fifteen hundred dollars each year; she did not realize payments had been decreasing the past several years. Lela Reynolds Venable testified; however, her testimony concerned a brief conversation of no significance with Davis, which apparently occurred after the transaction.

The points for reversal will be italicized and discussed.

I. Davis placed a condition in Ms offer; when he accepted the deed the condition ivas ended and merged in the conveyance.

Appellant relies strongly on Duncan v. McAdams, 222 Ark. 143, 257 S.W. 2d 568 (1953). That case holds, so says appellant, that a contract for the sale of lands is deemed merged in the deed subsequently executed. That assertion is only partly true; there is another chapter. The execution of the deed being established, it cannot be set aside for variance with the contract unless the grantee meets the burden of establishing a mistake, a misrepresentation, or a fraud having been perpetrated on him. The rule does not require a showing of active fraud, and, inferentially, it is not here contended that any of the Reynolds family willfully set out to deceive Mr. Davis. The Reynoldses simply made a loose assertion concerning the royalties; the total amount of those payments was peculiarly within their knowledge; Humble would not release the totals to Baldwin; the latter relied on the oral and written statement of Mrs. Arendt and passed this on to the purchaser. The representations were interpreted by the trial court as constituting constructive fraud. Lane v. Rachel, 239 Ark. 400, 389 S.W. 2d 621 (1965). We cannot say the chancellor’s conclusion was against the preponderance of the evidence.

II. There was no representation of any kind by Elvia L. Reynolds, trustee, or by anyone authorised to act for him.

Elvia Reynolds signed the offer of sale which has been described in the summary of testimony; he also testified that he had no objection to his sister signing the listing. The heirs were in complete agreement about selling the land and were acting with complete harmony. The chancellor’s finding that Elvia did give written representation was amply justified.

III. Plaintiffs were not entitled to a rescission.

This point overlaps Point I with the additional argument that the Davises subsequently placed a mortgage on the land. At the time of trial the balance was approximately $2000. The chancellor decreed that the Reynoldses refund the purchase price of $20,000 and that the Davises execute and deliver a warranty deed. Thus the inference is clear that good title must be reinvested in the Reynoldses. Naturally that could not be done without the mortgage being satisfied in full.

Affirmed.


author: John A. Fogleman, Justice.

text:
    City of Little Rock, et al v. T. H. Linn, et al
    5-4660
    432 S.W. 2d 455
    Opinion Delivered September 30, 1968
    [Rehearing denied November 4, 1968.]

      Thomas J. Bonner for appellant (Fletcher).

      Joseph G. Kemp and Perry V. Whitmore for other appellants.

      H. B. Stubblefield for appellees.
   John A. Fogleman, Justice.

The City of Little Rock and the Bishop of the Catholic Diocese of Little Rock have appealed from the decree of the Chancery Court of Pulaski County voiding that portion of Ordinance #11944 which vacates “I” Street between Harrison and Tyler Streets in Little Rock. Appellees, who attack this ordinance and another [#11604] vacating Tyler Street between “H” and “I” Streets, have also appealed. Their appeal is from the same decree insofar as it pertains to Ordinance #11604 and to the vacation of parts of the alley in Blocks 9 and 16 of Hollenberg’s Addition.

Block 16 is bounded on the west by the portion of Tyler Street vacated by Ordinance #11604 adopted June 7, 1965. Block 16 lies on the south side and block 9 on the north side of that portion of “I” Street which Ordinance #11944 proposed to vacate. The alley runs north and south and bisects these blocks. Title to all of block 15 and all of those portions of block 16 and block 9 abutting the portions of the alley and “I” Street which would be closed is vested in Albert L. Fletcher as Bishop of the Catholic Diocese of Little Rock.

Appellees are citizens, residents, taxpayers and owners of real property in the city. Their real property is in the vicinity of the streets and alleys sought to be closed. Only one of them owns any property in the same block with any portion of the public ways affected. He is the owner of a lot bordering a portion of the alley which would not be closed. They originated this action on behalf of themselves and other persons similarly situated. Their complaint was filed August 30, 1967. They contend that both ordinances are void for want of authority in the Board of Directors in the city and because the findings made by the Board were untrue, arbitrary and unreasonable. They claim a vested right to the continued use of these public ways.

Among other defenses, appellants pleaded the bar of the statute of limitation set out in Ark. Stat. Ann. § 19-3829 (Repl. 1956) as to Tyler Street.

After hearing the evidence, the chancellor rendered an opinion. In that opinion he held that the attack by appellees on the closing of Tyler Street was barred by the statute of limitation pleaded by appellants. We agree with the trial court on this finding.

Bishop Fletcher filed a petition for the closing of Tyler Street between blocks 15 and 16. The ordinance recites the giving of notice as required by law and the hearing of all persons desiring to be heard. It includes a finding that the petitioner was an educational institution operating Holy Souls Elementary School on both sides of the portion of the street to be closed. It also recites: That the petitioner, as owner of all propertj7 abutting on this portion of the street, had filed written consent to vacation of the street; that the portion of the street to be closed is not required for public purposes and that the public interest and welfare will be benefited by abandonment thereof. The ordinance expressly vacated and abandoned all rights of the city and the public generally in that portion of Tyler Street. The determination and findings of the council are conclusive unless suit to reject the ordinance is brought within thirty days after its passage. Ark. Stat. Ann. § 19-3829. Since no suit was brought, the action instituted by appellees attacking this ordinance is barred.

A petition for closing the block of “I” Street between Harrison and Tyler Streets and 130 feet of the alley lying immediately north of this portion of “I” Street and the 200 feet thereof lying immediately south of “I” Street was also filed by Bishop Fletcher and certain owners of real property in the City of Little Rock. This petition was filed under the provisions of Ark. Stat. Ann. § 19-3818, § 19-2304 and § 19-3825. The petitioners alleged that the land embraced within the alleys to be closed was needed for the purpose of construction of new church buildings for Holy Souls Catholic Church, and was not needed for corporate purposes because modern municipal planning eliminates alleys in residential areas.' They allege that the portion of the alleys which will remain will give sufficient access to public streets. They also stated that the portion of “I” Street in question was not required for corporate purposes of the city and that there are sufficient other streets in the neighborhood to carry the traffic volume. The petition relates that Bishop Fletcher holds title as a corporation sole and, as such, is an educational institution, operating places of academic and religious education.

The schools are presently located on blocks 15 and 16, south of “I” Street. The Holy Souls Catholic Church is located on this same property. It is alleged that the space in the existing buildings is inadequate and facilities are to be expanded on blocks 15 and 16. This expansion would include living quarters for the principal and some of the teachers of the school, parking facilities for teachers and patrons, a new church building, a new gymnasium, cafeteria and auditorium, all of which would be used jointly by the school and the church. This ordinance recites these, among other, findings by the Board of Directors:

“e. There are sufficient other East/West streets in the vicinity of the street to be closed to carry the traffic volume of the neighborhood. Also, it is preferred in modern municipal planning to eliminate alleys in residential neighborhoods and to have streets at intervals of 500 to 600 feet instead of 200 to 300 feet apart. Therefore, the portion of “I” Street to be closed and the portion of the alleys to be closed are not required for corporate purposes of the City of Little Rock.
f. All property abutting the portions of the street and alleys to be closed is owned by Albert L. Fletcher, as Bishop of Little Rock, as a corporation sole. As such corporation, the petitioner operates Holy Souls Elementary School, an educational institution with more than 650 regular daily students, and Holy Souls Catholic Church. Both of these institutions are located South of “I” Street at the location in question on Blocks 15 and 16, Hollenberg’s Addition. Those institutions make a joint use of their existing facilities. The petitioner Fletcher proposes to expand the facilities to the North side of “I” Street and needs to use the space in the street and alleys to be closed for the construction of the new facilities.
g. By his written petition, the petitioner Fletcher has consented to the vacation of the street and alleys in question. The Board of Directors finds that the public interest and welfare of the City will be benefited by granting the petition; **.”

In Sections 1 and 2 of the ordinance, the city released, vacated and abandoned all of its rights and the right of the public generally in and to those portions of “I” Street and the alleys in question.

Testimony on behalf of the property owners in this regard showed that the property of at least some of them was included in street improvement districts which had improved the streets in the area, including the portion of “I” Street to be closed. The improvements included paving and installation of curbs and gutters.

Appellees showed that something over 900 cars a day used the block of “I” Street to be closed and that there was fairly heavy foot traffic because there were more sidewalks on “I” Street than the other streets in the neighborhood. There was testimony tending to show:

“I” Street constitutes a preferable entrance to and exit from the neighborhood because its approach to Kavanaugh Boulevard, one of the principal traffic arteries in that part of the city, was more nearly level than approaches at “H”, “J”, “L” and Evergreen Streets; the “H” Street entrance to Kavanangh, one block south of the “I” intersection, is uphill and runs into Kavanaugh at the intersection of the latter with Van Burén Street; “J” Street is one block north of “I” and lacks one block of going as far west as “I”, its entrance to Kavanaugh is uphill and visibility there is impaired by buildings; Evergreen, two blocks north of “I”, is wider than either of the other alternate streets, but it has an upbill entrance to Kavanaugh and no sidewalks; there are curbs and gutters on “I” Street from Kavanaugh to Fillmore where it terminates; parents transporting-children to Mount St. Mary’s, Fair Park Elementary and Forest Heights Junior High School, as well as those attending Holy Souls School, use “I”; at times during the day there is heavy pedestrian traffic involving- school children, principally from Holy Souls School; during icing conditions in the winter, the level entrance provides easier and safer access to Kavanaugh and ice tends to melt faster on “I” Street than on other streets entering- onto Kavanaugh.

One of the property owners admitted that many people choose to use the “H” Street, “J” Street and Evergreen intersections with Kavanaugh. He also said that the closings would not prevent him from having access to the neighborhood or any point in the city, nor would they cause an increase in travel distance to exceed a block or two and travel to exceed a minute or two. This condition would also be true as to the other protesting property owners. Another appellee, whose experience qualified him as a safety expert, agreed with the statement in Ordinance #11944 that other east-west streets in the vicinity were sufficient to carry the traffic volume in the neighborhood during good weather; however, he stated that in winter weather, ice tends to melt faster on “I” Street than the others. Most of the property owners testified that traffic was increasing on “I” and the other streets in the neighborhood and that the closing of this block on “I” Street would place an additional traffic burden on the adjoining streets.

On tbe other hand, appellants offered the testimony of Mr. Henry M. de Noble, Director of Community Development and former Director of Planning and Traffic, who is a traffic engineer. He had been employed in his profession since 1948 and by the City of Little Bock for nine years. He recommended to the city council that this block on “I” Street and the alleys be closed. He testified that there are sufficient other streets in the vicinity to handle the traffic flow with safety and adequate access to all property in the area with these ways closed. According to him, “H” Street carries 2,400 vehicles daily and has a capacity of 6,000; “ J” Street currently has a traffic flow of 175 vehicles daily, and its capacity is 6,000; Evergreen’s current traffic is 2,500 daily, and its capacity is 6,000. The latest traffic count on “I” Street was 970 vehicles on a particular day. Mr. de Noble’s study of accident records showed that there had been two accidents at Kavanaugh and “ J” in the last ten years; eight at Kavanaugh and Evergreen; and nine at Kavanaugh and “I”. He further testified that the closing of this portion of “I” Street would fit the approved traffic pattern. This pattern contemplates parallel streets approximately 300 to 400 feet apart and cross streets one quarter mile apart. The creation of larger blocks results in fewer streets to maintain and lower accident potential. Mr. de Noble classified “I” Street as a “hop, skip and jump street,” by reason of the fact that there are five separate segments of the street. Three of the properties intervening are the locations of schools. According to him, these interruptions create an unfavorable traffic condition. It was his opinion that the streets and areas involved in this action are not required for city purposes and it should be beneficial to the public to close them.

In considering the questions presented to us by this appeal, it is essential that we give consideration both to the powers and responsibilities of the city and to the rights of the property owners.

A city is a creature of the state and its function is to aid the state in the regulation and administration of local affairs. City of Piggott v. Eblen, 236 Ark. 390, 366 S.W. 2d 192. When a power is conferred upon a city, a discretion in the exercise of the power, both as to use and extent of the use, is vested in its governing body. Lackey v. Fayetteville Water Co., 80 Ark. 108, 96 S.W. 622; Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165, AC 13D 1086; North Little Rock v. Rose, 136 Ark. 298, 206 S.W. 449; Arkansas Power & Light Co. v. Cooley, 138 Ark. 390, 211 S.W. 664; Herring v. Stannus, 169 Ark. 244, 275 S.W. 321; Street Imp. Dist. No. 130 v. Crockett, 181 Ark. 869, 28 S.W. 2d 331; Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W. 2d 620.

Matters pertaining to regulation of streets and alleys and their use are among those over which cities have authority to act and to exercise discretion. Ark. Stat. Ann. § 19-2303 (Repl. 1956); House v. City of Texarkana, 225 Ark. 162, 279 S.W. 2d 831. The care, supervision and control of public ways are vested in city governing bodies. Ark. Stat. Ann. § 19-3801, .et seq. They have the power to open, widen, straighten, establish, improve, maintain and light streets and alleys and to assess charges against property owners for those purposes. Ark. Stat. Ann. § 19-2313; Holt v. City of Texarkana, 168 Ark. 847, 271 S.W. 960. They may adopt a master street plan designating the location, characteristics and functions of streets and highways, with provision for removal, relocation, vacation and abandonment of ways shown thereon. Ark. Stat. Ann. § 19-2828 (d) (Supp. 1967). They may compel abutting owners to build sidewalks and curbs and gutters there-along. Ark. Stat. Ann. § 19-3806 — 7 (Repl. 1956); Brizzolara v. City of Ft. Smith, 87 Ark. 85, 112 S.W. 181; Malvern v. Cooper, 108 Ark. 24, 156 S.W. 845. They may permit the use of streets by electric power companies and irrigation corporations. Ark. Stat. Ann. § 35-301 and § 35-1207 (Repl. 1962). They may grant the use of air rights over streets to owners of private property. Ark. Stat. Ann. § 76-137 (Supp. 1967). In addition, they are given the power to alter, change the width or extent of streets and alleys and to vacate such portions thereof as may not for the time being be required for public purposes Ark. Stat. Ann. § 19-2304 (Repl. 1956). (See Kemp v. Simmons, 244 Ark. 1052, 428 S.W. 2d 59, where the identical power of cities of the second class was sustained.) They are also authorized to vacate public streets and alleys or portions thereof where they have not been used by the public for five years or where all abutting property is owned by an educational institution. Ark. Stat. Ann. § 19-3824, et seq. With such broad powers over streets and alleys, it seems that the latitude of discretion vested in city governing boards should be very wide indeed.

Every reasonable presumption must be indulged that any ordinance adopted by a city within the scope of its power is valid and not unreasonable or arbitrary, and may be overcome only by clear and satisfactory evidence. House v. City of Texarkana, supra; Deloney v. Rucker, 227 Ark. 869, 302 S.W. 2d 287; Goldman & Co. v. City of North Little Rock, 220 Ark. 792, 249 S.W. 2d 961; Sander v. City of Blytheville, 164 Ark. 434, 262 S.W. 23; Shaw v. Conway, 179 Ark. 266, 15 S.W. 2d 411; City of North Little Rock v. Rose, 136 Ark. 298, 206 S.W. 449; Pierce Oil Corp. v. City of Hope, 127 Ark. 38, 191 S.W. 402, aff’d. 39 S. Ct. 172, 248 U.S. 498, 63 L. Ed. 381; City of Helena v. Miller, 88 Ark. 263, 114 S.W. 237.

Where a city board is invested with discretion in any matter, the exercise thereof may not be divested or controlled by reviewing courts, nor may the courts substitute their judgment for that of the board. Little-Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165, Ann. Cas. 1913D 1086; City of North Little Rock v. Rose, supra; Lackey v. Fayetteville Water Co., 80 Ark. 108, 96 S.W. 622; Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W. 2d 620; City of Little Rock v. Fausett & Co., 222 Ark. 193, 258 S.W. 2d 48; Herring v. Stannus, 169 Ark. 244, 275 S.W. 321; Street Imp. Dist. No. 130 v. Crockett, 181 Ark. 869, 28 S.W. 2d 331.

This court long ago recognized that the varied uses and conflicts of city life required that much must be left to the discretion of city authorities, whose actions should not be judicially interfered with unless manifestly unreasonable and oppressive, an unwarranted invasion of private rights, or clearly in excess of powers granted. State v. City of Marianna, 183 Ark. 927, 39 S.W. 2d 301; Sander v. City of Blytheville, supra. In considering matters pertaining to streets, this court said in City of Marianna v. Gray, 220 Ark. 468, 248 S.W. 2d 379:

“The exercise of the broad discretion granted municipal governing bodies in matters pertaining to the use of the streets and sidewalks of a city may not be overturned by the courts except on a clear showing that the action taken or refused was arbitrary, unreasonable or discriminatory.”

The city board of directors made specific findings that the public ways vacated are not required for corporate purposes and that the public interest and welfare will be benefited by their closing. Before the courts can reject these findings, it must be shown that they were unreasonable and arbitrary. City of Little Rock v. Fausett & Co., supra; Evans v. City of Little Rock, 221 Ark. 252, 253 S.W. 2d 347. The action of the city council is final if there is room for reasonable difference of opinion on the question. House v. City of Texarkana, 225 Ark. 162, 279 S.W. 2d 831.

In view of the evidence before the trial court, it cannot be said that the action of the city was unreasonable, arbitrary, oppressive, or in excess of its powers granted by Ark. Stat. Ann. § 19-2304. The identical power in cities of the second class was recently sustained by this court. Kemp v. Simmons, 244 Ark. 1052, 428 S.W. 2d 59.

Under the evidence here, we may also sustain the proceeding, as against contentions that the action was unreasonable, arbitrary and in excess of the city’s powers under §§ 19-3824 — 30 The procedure prescribed was followed and the essential findings clearly made by the board of directors. The trial court found, however, that the owner of the property is not an educational institution, contrary to the express finding by the city directors. Under the undisputed evidence here, we think that the courts have no right to reject their finding.

Each of the conveyances of the abutting property was made to Fletcher as Bishop and his successors and assigns. Under the common law, the existence of corporations sole was recognized and bishops were said to constitute corporations sole. A corporation sole consists of one person only and his successors, who are incorporated by law, in order to give them legal capacities and advantages which they could not have in their natural persons. I Blackstone, 2 Ed. 470; 2 Kent, 14th Ed. This concept of corporation sole has been recognized as a part of the common law in other jurisdictions. Terrett v. Taylor, 13 U.S. 42, 3 L. Ed. 650 (1815); Overseers of The Poor v. Sears, 22 (Pick) Mass. 122 (1839); Weston v. Hunt, 2 Mass. 500 (1807); The Inhabitants of The First Parish in Brunswick v. John Dunning, 7 Mass. 444 (1811); Santillan v. Moses, 1 Cal. 92 (1850); Archbishop v. Shipman, 79 Cal. 288, 21 P. 830, (1889); Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927); Willard v. Barry, 113 Fla. 409, 152 So. 411 (1933).

While the existence of the corporation sole can well qualify Bishop Fletcher and his successors as an institution, the church property would not be that of an educational institution simply because it conducted religious education. The evidence in this case, however, discloses that Holy Souls Elementary School has been operated at the present location under the supervision and authority of Bishop Fletcher. There is also a school for retarded children there. The school has grown from two classrooms to eighteen. Its academic credits are transferrable to the public schools. Its enrollment has been as high as 650 and is now 490. The building of a new church and rectory and the development of parking facilities for Sunday use that could also be used for playgrounds during the week are proposed. All of these would be located on blocks 9 and 16. Later, an auditorium would be built. Part of the parking and play area would be north of “I” in block 9, as would a new rectory. The new church building would be located in blocks 9 and 16 and on a part of the block “I” in question. The proposed rectory would be located on block 9, north of “I”, and house the business offices of the parish, the church and the school. Bible instruction and instruction in the masses of the church now given in the present church building would be given in the new building.

The Supreme Court of Arizona has defined the meaning of the words “educational institution” in Lois Grunow Memorial Clinic v. Oglesby, 42 Ariz. 98, 22 P. 2d 1076 (1933), as follows:

“An educational institution has been judicially defined as 'one which teaches and improves its pupils; a school, seminary, college or educational establishment.’ Cumberland Lodge No. 8, F.&A.M. v. Nashville, 127 Tenn. 248, 154 S.W. 1141; Curtis v. Allen, 43 Neb. 184, 61 N.W. 568; Essex v. Brooks, 164 Mass. 79, 41 N.E. 119; Peck v. Clafin, 105 Mass. 420; North St. Louis Gymnastic Society v. Hudson, 85 Mo. 32.”

The Supreme Court of Tennessee held that the words “educational institution” mean school, seminary, college or educational establishment, but not necessarily a chartered institution. Ward Seminary for Y. L. v. Mayor, 129 Tenn. 412, 167 S.W. 113 (1914).

The words do not imply limitation to public organizations, as distinguished from private ones, or to corporations as distinguished from individuals. In re Shattuck’s Will, 193 N.Y. 446, 86 N.E. 455; In re Sutro’s Estate, 155 Cal. 727, 102 P. 920 (1909); Ward Seminary v. Mayor, supra.

We think the scope of an educational institution is well set out in Commissioners, District of Columbia v. Shannon & Luchs Const. Co., 17 F. 2d 219 (CA D.C. 1927) as follows:

“* * * educational institution consists, not only of the buildings, but of all the grounds necessary for the accomplishment of the full scope of educational instruction. More properly defined, a modern educational institution embraces those things which experience has taught us are essential to the mental, moral, and physical development of the pupils. It is not the modern conception of a public school that it be erected on a lot merely large enough in area to contain the school building. In addition to the buildings there should be playground space, basketball stops, chinning bars, room for calisthenics, all in the open air. It is also for the general welfare and safety that the school children be furnished a place in which to play, removed from the dangers of street traffic. ¶ That these accessories are an essential part of a modern educational institution is in line with the recent decisions of many courts.”

It was also pointed out in that case that education may include development of physical faculties, teaching of Bible and other religious evidences, and improvement of moral and religious natures, as well as the cultivation of the mind.

We think the city’s finding that the abutting property was owned by an educational institution in the sense of Ark. Stat. Ann. § 19-3825, rather than the chancellor’s finding to the contrary, is supported by the preponderance of the evidence.

There remains, however, the question whether there has been an unwarranted invasion of property rights by the city’s action. In matters such as these, a citizen and taxpayer, as such, has no standing to complain. McKnight v. Tate, 222 Ark. 564, 261 S.W. 2d 793; Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 178 Ark. 309, 10 S.W. 2d 493. In this respect, this case is different from Lancaster v. Incorporated Town of Mountain View, 227 Ark. 596, 300 S.W. 2d 603, where citizens and taxpayers joined the Incorporated Town of Mountain View in preventing a private obstruction of public streets. There the citizens and taxpayers were acting in the interest of the town, while they are challenging an act of the municipality here.

The city did not lose any of its authority over the .street on account of the power given the improvement district to make improvements thereon and the property owners did not gain any proprietary interest on that account. Williams v. City of Ft. Smith, 165 Ark. 215, 263 S.W. 397.

It has long been recognized, however, that relief against the closing of a public way may be given to those who suffer special and peculiar injury distinct from that of the public in general. Wellborn v. Davies, 40 Ark. 83; Arkansas River Packet Co. v. Sorrells, 50 Ark. 466, 8 S.W. 683. This special injury or damage must be such as is not common to the general public and not a matter of general public inconvenience. Before an inconvenience can constitute a special injury or damage it must be one which is different in character and not degree from 'that which every citizen suffers, whose business or pleasure causes him to travel the way. Well-born v. Davies, supra; Hot Springs R.R. Co. v. William son, 45 Ark. 429; Stoutemeyer v. Sharp, 89 Ark. 175, 116 S.W. 189. In Little Bock & Hot Springs W. Ry. Co. v. Newman, 73 Ark. 1, 83 S.W. 653, this court followed definitions of the Supreme Courts of Illinois and Michigan holding that a property owner suffers no special damage where his property is not adjacent to the streets and alleys vacated and the access, ingress and egress from his lot are not affected by the vacation of streets and alleys in another block. Many of these authorities were reviewed in the case of Risser v. City of Little Rock, 225 Ark. 318, 281 S.W. 2d 949, wherein residents of another part of Little Rock sought to prevent the abandonment of a small portion of East Tenth Street and to relocate East Twenty-Sixth Street for a distance of a little over one-half mile. These portions of the street were closed on authority of Ark. Stat. Ann. § 19-2304. There the inconvenience of travelers in turning two corners and traveling a little further, requiring less than a minute in' additional time, was said to be not peculiar to these property owners because the street was an outlet from the city to one of the most thickly populated sections of the county so that every person who traveled the street suffered the same inconvenience as the property owners there. Diminution of property values resulting from inconvenience of additional travel was also held not to constitute special damages in Wenderoth v. Baker, 238 Ark. 464, 382 S.W. 2d 578. We conclude that appellees are in no different position from the property owners in Bisser v. City of Little Bock, supra, and that they have shown no damage that differs, except in degree, from that suffered by anyone who might he traveling the ways in question on business or pleasure. For this reason we hold that the finding of the chancellor as to the closing of “I” Street is against the preponderance of the evidence and that the decree should he reversed in this respect.

What we have said with respect to “I” Street would apply equally to the álíeys, except for the position of appellee Savary. This property owner has his residence near the corner of Tyler and “ J” Streets, and the rear of his lot abuts upon the portion of the alley through block 9 which would not be closed. He testified that he used his backyard for parking several cars and a boat. He commonly approached the back part of his property from “I” Street to the south because the south portion of the alley was more level than the north end and was a better approach. His objection to approaching from “J” Street was that the rear end of his automobile would drag. The tidal court found that the property owner had offered no compelling and extrinsic reasons that the alleys were needed for the use of persons other than the owners of the property abutting thereon. Mr. de Noble testified that he had no difficulty making an entry into the alley from “J” Street and that the pastor of Holy Souls Church had agreed to make such repairs to this portion of the alley as the city suggested.

It is true that an owner of property which does not abut- upon the public way suffers special damage, as an injury differing in kind from that suffered by his neighbors, if he is deprived of any entrance to or exit from his property. Campbell v. Ford, 244 Ark. 1141, 428 S.W. 2d 262; Lincoln v. McGehee Motel Co., 181 Ark. 1117, 29 S.W. 2d 668; McKnight v. Tate, 222 Ark. 564. 261 S.W. 2d 793; Sullivant v. Clements, 180 Ark. 1107, 24 S.W. 2d 320; Langford v. Griffin, 179 Ark. 574, 17 S.W. 2d 296; Arkansas Riper Packet Co. v. Sorrells, 50 Ark. 466, 8 S.W. 683.

The closing of an alley which a property owner had ■used as a-convenient but not necessary passageway to and from his property was sustained in Cernauskas v. Fletcher, 211 Ark. 681, 201 S.W. 2d 999. We cannot say that the finding of the chancellor on the conflicting testimony on this point is against the preponderance of the evidence.

Appellees rely heavily upon Brooksher v. Jones, 238 ArK. 1005, 386 S.W. 2d 253. That case is easily distinguished from this. The only finding as to basis for the closing made hy the city commission was that it was “for the purpose of allowing Safeway Stores, Incorporated ... to build, construct and own buildings and other improvements over and across the designated portion of Birnie Avenue.” We clearly pointed out in that opinion that before the street could be closed it must first be shown that the portion being closed was not required for public purposes. Summary judgment was granted the property owners on uncontroverted affidavits presented by them. Not only was there no finding that the street was not required for corporate purposes, as there was here, no evidence to support such a finding was offered.

Appellees also rely upon Roberts v. Pace, 230 Ark. 280, 322 SW. 2d 75. This decision is also easily distinguishable. There the alley was closed at its south end by abutting property. The city closed the other end under § 19-3824, et seq., upon petition of the abutting owners. In contrast with the situation here, the undisputed evidence there showed that the abutting property owner in the interior of the block would be deprived of any ingress or egress via the alley. We said that no opinion was expressed as to what our holding would be if the south end of the alley was not closed. We also clearly stated that the action in that case would not be res judicata of any nature litigation between the same parties instigated under § 19-2304.

We reverse the decree on appellants’ appeal and affirm it on appellees’ appeal. The cause is remanded for entry of a decree consistent with this opinion, since title to real property is affected.

Byrd, J., dissents.


author: Conley Byrd, Justice.

text:
    Mrs. H. B. Rhodes, et al v. Earl Gill Enterprises, Inc.
    4662
    431 S.W. 2d 846
    Opinion Delivered September 30, 1968

      U. A. Gentry for appellants.

      David B. Whittington for appellee.
   Conley Byrd, Justice.

In this ejectment action both parties claim title from a common source, but under different descriptions. Appellant Mrs. H. B. Rhodes claims the property as Lot 6, Block 18 of Crystal Springs, Arkansas. Appellee Earl Gill Enterprises, Inc., claims that the proper description is Lot 5, Block 18 of Crystal Springs, Arkansas. The trial court found the issues in favor of Appellee. Mrs. Rhodes appeals, contending that appellee did not prove sufficient title to recover.

The land here involved was in Montgomery County until Act 120 of 1917. By that act the land became a part of Garland County. In Plat Book I at page 145 of the records of Montgomery County, there is a plat of the S% NE, NW and NW SE Section 34, Township 2 South, Range 22 West designated as “Crystal Springs, Montgomery County, Arkansas.” This plat shows the lots in the southern part of Block 18 to be numbered from East to West as 1, 2, 3, 4, 6 and 5. Lot 1 is bounded on the East by Vine Street and the South by Main Street (now Highway 270). Lot 5 is bounded on the West by Hill Street and the South by Main Street.

In the Garland County deed records, Vol. 272, Page 372, dated May 16, 1946, is a copy of a plat of Crystal Springs with the following notation:

“I, H. B. Smith of Hot Springs, do state on oath that the attached plat of Crystal Springs, Arkansas, is a duplicate original of the ancient plat prepared for Crystal Springs and obtained from F. N. Springer, who holds the original thereof, and the site of Crystal Springs, Garland County, Arkansas, is a duplicate original of the ancient plat pose of placing of record a plat of Crystal Springs, Arkansas, there being no recorded plat of said subdivision.”

This plat does not contain any lot numbers for Block 18, hut it does show the same lot dimensions and streets as the Montgomery County plat.

Pellie M. Smith, the common grantor received from Newt Peden by a warranty deed which reads: “Lot 1 and 2 in Block 26 and Lot 5 in Block 18 and all surplus lumber now located on these lots.” Pellie M. Smith and her husband, Hiram T. Smith, built their house on Lots 1 and 2 of Block 26 which lay immediately west of Hill Street and North of Main Street. They used the dedicated portion of Hill Street for their garden and built a service station on the lot to the east of Hill Street.

December 21, 1954, Pellie M. Smith conveyed to Mrs. Rhodes “Lot No. 6 and No. 4 in Block 18 located in the town of Crystal Springs, Garland County, Arkansas.”

In 1953 or 1954 Orville M. Smith, a son of Hiram T. and Pellie M. Smith moved with his wife, Leona Smith, into the service station property on the Southwest corner of the intersection of Hill Street and Highway 270. Thereafter, on January 31, 1959, Hiram and Pellie Smith executed to Orville a deed describing the lands conveyed as: “ All of Lots 5 in Block 18; Lots 1, 2, 4 and 8 of Block 26 of Crystal Springs, Arkansas ... as shown of record at page 372, volume 272 of the Records of Deeds and Mortgages of Garland County, Arkansas.” After divorce proceedings, Orville deeded Lot 5, Block 18, to Leona M. Smith, which she subsequently conveyed to appellee.

After Orville and Leona Smith moved on the property the building was enlarged. In 1958 it was made into a tavern. Appellee, made additional improvements. After conveying to appellee, Leona rented the tavern for a year or more. When Leona moved out Mrs. Rhodes took over through her tenant, appellant Robert T. Lee.

The Garland County tax assessment records show that Lot 5 is the only lot in Block 18 on which any improvements have been assessed. In 1932 Hiram T. Smith leased the service station to Continental Oil Company. The lease contained these words: “This is a one story frame building, with a gravel driveway, located on lot number five, block number eighteen, in the City of Crystal Springs, Arkansas.”

Leona Smith testified that Pellie M. Smith told her that the 1959 deed was a deed to the tavern. Pellie Smith testified that the gasoline pumps were on the lot in question and that it was the lot she got from Newt Peden when she got the deed to the home place in 1927. She described the tavern lot as being the hundred foot lot. It was her testimony that she intended to convey the little lot to Orville (the lot next to the lot to litigation is only twenty feet).

There was ample evidence to sustain the trial court’s finding that the lot in controversy was conveyed by Pellie M. Smith to appellee’s predecessor in title and not to appellant.

Appellant claims erron because the Montgomery County plat was introduced. In so doing she points out that there is no filing date on the plat nor any showing as to who caused it to be placed*on record. The clerk testified that it was recorded between a plat filed for record on July 5, 1889 and another instruriient filed for record on July 12, 1889. The instrument obviously qualifies as an ancient document, State v. Taylor, 135 Ark. 232, 205 S.W. 104 (1918) and was properly introduced to shed some light on the lot numbering system.

Appellant’s most serious contention is that Appellee failed to prove his title. Of course the general rule in ejectment is that the plaintiff must recover on the strength of his own title and not the weakness of the defendant’s title, but this rule is greatly relaxed where both parties claim from a common grantor. Spencer v. Pierce, 172 Ark. 108, 287 S.W. 1019 (1926). The rule is stated in 25 Am. Jur. 2d EJECTMENT § 37 as follows :

“ It is a well-established principle in the law of ejectment that where both parties to an action claim title from the same third person, each is estopped to deny the validity of the title of such third person and the one having the better title derived from the common source must prevail. The plaintiff, in the first instance, need go no further than the title of the person under whom both parties claim; and he may recover on proof of the better title from that source, even though his evidence indicated that the common-source title is bad.
“The rule is one both of convenience and justice and is based on the principle that it does not lie in mouth of one to dispute the title under which he claims. Although it debars the truth in the particular case and therefore is not infrequently characterized as odious and not to be favored, still it debars the truth only where its utterance would be the denial of a previous affirmation upon the faith of which persons had dealt and pledged their credit or expended their money.”

The deed to Orville M. Smith referred to the recorded plat in Garland County which would obviously show the dimensions of the lot and its location with reference to the street. This, together with the testimony of various witnesses describing the location of the lot, was certainly sufficient to sustain this action in ejectment.

Further, if we should hold that the reference in appellee’s deed to a lot in Crystal Springs, Arkansas does not constitute good title, the appellants are in the awkward position of having no title either. Thus appellee’s prior peaceful possession would constitute good title in ejectment against appellants’ intrusion, Vanudale Special School District No. 6 v. Feltner, 210 Ark. 743, 197 S. W. 2d 731 (1946).

For the first time on appeal, appellant makes the contention that appellee’s deed describes lands in a different forty acre tract and that before it can maintain an action in ejectment it will be necessary to have the deed reformed. We have consistently held that we will not consider a matter raised for the first time on appeal.

Affirmed.

Jones, J., not participating.


author: Conley Byrd, Justice. John A. Fogleman, Justice.

text:
    Pepsi-Cola Bottling Company and Ernest Bowden, v. Bobby Steel, Judge
    4669
    431 S.W. 2d 854
    Opinion Delivered September 30, 1968

      Harper, Young, Durden & Smith for petitioner.

      Donald Poe for respondent.
   Conley Byrd, Justice.

Petitioners Pepsi-Cola Bottling Company and Ernest Bowden seek a writ to prohibit respondent, Bobby Steel, Circuit Judge of Scott County, from proceeding in a cause which had been dismissed at a prior term of court.

The record shows that a complaint was filed by Mrs. Scott Jones, Administratrix of the Estate of David Barrow, deceased on September 12, 1967, for damages arising out of an automobile collision in Scott County. October 2, 1967, Pepsi-Cola filed a motion to quash service and Bowden filed a motion to make more definite and certain. After a hearing on the motions on October 13, 1967, Bowden filed on October 16, 1967, a motion to dismiss on the alleged ground that Mrs. Jones l\ad not been properly appointed as Administratrix. Mrs. Jones amended her complaint on the 18th day of October, caused summons to be issued and obtained service on the same date.

Under date of October 23, 1967, there was filed an order which states:

“On this 20th day of October, 1967, is presented to the Court the motion of the defendant to dismiss the complaint filed by the plaintiff herein, and from said motion and other matters and proof before Court, the Court finds:
That the defendants’ motion should be, and the same is hereby, sustained, and this cause is dismissed without prejudice, at the cost of the plaintiff.”

The May term of the Scott County Circuit Court, at which the October 20th order was entered, expired with the beginning of the November term on Monday, November 6, 1967. On November 9th, petitioners filed their complaint for damages arising out of the same collision in the Circuit Court of Sebastian County.

In setting aside the order of October 20th after the expiration of the term, the court, April 20, 1968, found that the order dated the 20th day of October, 1967, and filed October 23, 1967, dismissing without prejudice the plaintiff’s complaint was signed at the instance of the petitioners at Nashville, Arkansas, without the court being informed that on the 18th day of October an amendment to the Scott County complaint had been filed.

Petitioner for the issuance of the writ contends that the April 20th order was after term time, Mrs. Jones did not file a verified complaint to set aside the October 20th order as required by Ark. Stat. Ann. § 29-508 (Repl. 1962), and that the Scott Circuit Court had no jurisdiction in the matter after expiration of term. We hold petitioners ’ contentions to be without merit. Ark. Stat. Ann. § 29-107 (Repl. 1962). We held in Howell v. Van Houton, 227 Ark. 84, 296, S.W. 2d 428 (1956), that an order entered without notice and at a time when the court was not in session was void and that the party seeking to set aside the same was not required to follow the statutory procedure for vacating or modifying a judgment.

Petition denied.

George Rose Smith & Fogleman, JJ., concur.

John A. Fogleman, Justice.

I concur in the result but do not agree with the reasons stated therefor in the majority opinion. Neither do I agree with the applicability of the authority cited therein. It seems to me that the statute governing actions of the court after the expiration of the term is applicable here and that there is a possibility that a showing might have been made to support the action of the trial court in setting aside its earlier order.

I still would deny the writ. The original complaint was deficient in that the plaintiff had not been appointed administratrix, even though she was the next of kin of the decedent. The defendant was improperly named as Pepsi-Cola Bottling Company, apparently a non-existent entity. Before the order of October 20th dismissing the cause without prejudice, the plaintiff had been appointed administratrix and alleged that the proper defendant was Southwest Pepsi Bottlers, Inc., d/b/a Pepsi-Cola Bottling Company of Fort Smith. She asked that her complaint be amended with respect to the parties and by addition of an allegation as to the value of an automobile before and after the automobile collision which was the subject of the action. She prayed that the defendant as named in the amendment be made a party and that summons be issued for it. Summons was issued out of the Scott Circuit Court and directed to the Sheriff of Sebastian County who returned the same, showing service on Southwest Pepsi Bottling Company and Ernest Bowden on October 18,1967. These are the defendants in the Scott County action and the petitioners here.

The order of dismissal in this case was granted upon the motion of the defendants originally named. These motions were filed on the 2nd day of October and the 16th day of October. No motion was filed by either defendant on or after the 18th day of October. The order of dismissal entered on the 20th, on the motion of defendants, could not have had any effect on the amendment to the complaint on which process was duly served. While a formal amendment may relate back to the filing of the original pleading, the rule is otherwise when the new pleading goes to a matter of substance, such as a change in the party-defendant. The filing of the amendment formed a new point for the commencement of the suit against the defendant in its correct name and status. Bunch v. Launius, Chancellor, 222 Ark. 760, 262 S.W. 2d 461; Schiele v. Dillard, 94 Ark. 277, 126 S.W. 835; Lewelling v. M.W.W. Underwriters, 140 Ark. 124, 132, 215 S.W. 258.

The petitioners filed suit in Sebastian County on the 9th day of November, 1967, and service of process had thereon subsequent to that date. The action in Scott County was pending and the date of its commencement was October 18th. Consequently, the Scott County court would have jurisdiction.

I am authorized to state that George Rose Smith, J., joins in this concurrence.


author: Carleton Harris, Chief Justice.

text:
    American Colonial Insurance Co. v. J. W. Mabry
    4665
    432 S.W. 2d 15
    Opinion Delivered October 7, 1968

      Moses, McClellan, Arnold, Owen & McDermott for appellant. By Wayne M. Owen.

      Hall & Tucker and John F. Lovell, Jr. for appellee.
   Carleton Harris, Chief Justice.

On January 17, 1967, J. W. Mabry purchased a 1967 Mustang from Rebsamen Motor Company, agreeing to pay Rebsamen the sum of $3,060.00 in equal monthly installments beginning on March 1. The contract was assigned to Worthen Bank and Trust Company in the usual course of business. Mabry defaulted in his payments, and on April 22, 1967, the bank filed a suit to replevin the above described automobile, which had been wrecked, and prayed that it have judgment against Mabry in the amount of $3,060.00, less the sales price of the replevined ear, and less all other credits due Mabry. Mabry answered, admitting that he had executed the conditional sales contract, and that he had agreed to pay the amount set out above in equal monthly installments, continuing until the principal sum was discharged. Other allegations were denied. A third party complaint was filed against American Colonial Insurance Company, appellant herein, alleging that he had insurance coverage with this company. It appears from this pleading, and the answer of American Colonial, that the coverage was originally on a 1963 model Ford automobile, which Mabry had previously purchased from Capital Motors, the policy contains a provision that if the insured acquires ownership of another automobile, and notifies the company within 30 daj^s following delivery to him, the insurance afforded by this policy will apply to the new automobile as of the delivery date. Apparently the 1963 Ford was traded in on the 1967 Mustang, and the Mustang was wrecked on February 6, 1967. In his pleading, Mabry asserted that he had turned his policy over to Jim Hodges, an agent of Bebsamen Motor Company at the time of the sale, since Hodges would not permit him to drive the new car off the lot otherwise; that he had made demand upon the company for the value of the car, $3,060.00, but that appellant had refused to make payment. Judgment was sought in that amount, plus 12% penalty, reasonable attorney’s fee and costs.

The company admitted that Hodges was an employee of Bebsamen, acting within the scope of his employment at the time of the purchase of the Mustang by Mabry. It was further asserted that at the request of Mabry the appellant cancelled a policy of insurance that it had issued to him covering the 1963 Ford purchased from Capital Motors, said policy being cancelled on January 28, 1967; further, the unearned premium of $128.75 was returned to Mabry at the time of the cancellation, and American Colonial therefore denied any liability. On trial, the court held that the company, having admitted the original issuance of the policy, had the burden of proof to show that said policy was not in effect on the date of the wreck. The court told the jury that, if the policy had been cancelled, there would be no liability on the part of the company. It was then stated:

“* * * The sole question the jury has to decide today is whether or not the policy which admittedly existed was cancelled within that thirty day period, or before the accident occurred that caused the damage to the automobile. That is the sole question for you to decide.”

Counsel did not desire to make an opening statement to the jury, and the attorney for the company stated:

“As I say, in order to discharge that burden of proof, American Colonial at this time introduces the original policy that was issued to Mr. Mabry, which is the original of the copy in the file.’’

Counsel for Mabry objected to the introduction, because of marks appearing on the policy, which were not on it at the time of its issuance, stating that the notation on the policy was in the nature of a self-serving declaration, and that whether the policy was cancelled was the matter presented for determination. In the right hand corner of the face of the policy there appears a stamp mark:

CANCELLED
Date .......................
How -________________________________
Bet. Prem. -.......................

For “Date,” there has been inserted with a pen, “1-28-67.” For “Flow,” there has been inserted with pen, “SB.” For “Bet. Prem.,” “$128.75.” The attorney for the company stated, “With the introduction of that instrument, American Colonial Insurance Company rests.” Counsel for Mabry then stated, “If the court please, we move for directed verdict at this point.” Counsel for the appellant responded, “Your Honor, please, we move for directed verdict at this point.” a directed verdict.” The court then directed the jury to find the verdict in favor of appellee, stating, “I am going to direct the jury to find the verdict in favor of the cross-complaint. When each side moves for a directed verdict then it becomes my responsibility to decide the ease. In the absence of proof, I am finding in favor of the cross-complainant against the insurance company.” From the judgment so entered, appellant brings this appeal.

For reversal, it is asserted that the court erred in failing to direct a verdict for appellant, and also that the court erred in directing a verdict for Mabry.

Of course, it is well settled that when each litigant asks for an instructed verdict, and no other instructions are requested by either side, they, in effect, agree that the issue may be decided by the court. National Garages, Inc. v. Barry, 217 Ark. 593, 232 S.W. 2d 655.

We agree with the trial court that the issuance of the policy not being disputed, the burden was on appellant to show that the policy was no longer in force — and that the cancellation was in accordance with the provisions of the insurance contract. The introduction of the policy did reflect that the company had issued same on May 28, 1966, but we think that is the only fact established by the introduction of this instrument. The policy provides that the insurance may be cancelled by a surrender of the purchaser’s copy of the individual policy, and also provides that the company may cancel any individual policy by mailing a written notice setting out when the cancellation becomes effective, such period to be not less than five days before the cancellation is to take effect. In each instance, it is provided that the unearned premium shall be returned to the holder of the policy or certificate.

In the present instance, there is insufficient evidence to show the policy was cancelled; the reason given under “How” is “SR,” which may or may not mean “Surrendered.” If that is the meaning of this notation in ink, this in itself does not establish such a fact. Cancellation could not properly be established without testimony (or a stipulation) showing that Mabry had surrendered the policy, and that same had been cancelled by a proper officer of the company. The stamp does not show how the company received the policy (mail or personal delivery), or who turned it over to American Colonial. These facts were essential to appellant’s case. Interrogatories propounded by appellee, and answers given by appellant appear in the transcript which shed light on these questions, but the interrogatories were never offered into evidence; nor could they be offered by appellant, since it was the party making answer. The answers to interrogatories are inadmissible if offered on behalf of the party making answer, as self-serving declarations. Callaway v. Perdue, 238 Ark. 652, 385 S.W. 2d 4.

Accordingly, the only evidence in the record is the certificate of insurance which reflects that it was issued to Mabry on May 28, 1966, to remain effective for a period of two years. The evidence was insufficient to show that the insurance was properly cancelled under the provisions of the policy.

Affirmed.

       Actually, the instrument was an “automobile certificate of insurance,” issued under a master policy, the certificate providing that an insured is covered under the master policy for the term specified (two years in this instance), but that the company shall not be liable for any amount except the actual cash value of the property insured.

      It will be remembered that Mabry’s allegation in his pleading was that the policy had been turned over by him to an employee of Eebsamen Motor Company at the time he purchased the Mustang.


author: George Rose Smith, Justice.

text:
    L. V. Haire v. State of Arkansas
    5337
    432 S.W. 2d 828
    Opinion Delivered October 7, 1968
    [Rehearing denied November 11, 1968.]

      Terral, Rawlings, Matthews & Purtle for appellant. By Henry J. Osterlob.

      Joe Purcell, Atty. Gen. and Larry W. Chandler, Asst. Atty. Gen. for appellee.
   George Rose Smith, Justice.

The appellant, charged with the first-degree murder of Freddie Lee Jackson, age 16, was found guilty of second-degree murder and was sentenced to imprisonment for 21 years. The sufficiency of the proof is not questioned, but several other points for reversal are argued.

Rosalie Jackson, Freddie Lee’s mother, testified that a girl came by the Jackson home at College Station late in the afternoon on May 5, 1967, knocked on the door, and asked to see Freddie Lee. After a short conversation the boy and girl left the house and walked down the road. That was the last time Mrs. Jackson saw her son alive. When Freddie Lee did not come home that night she called the sheriff’s office to report that he was missing.

A search was instituted. Arthur Lewis, a deputy sheriff, testified that he and another officer drove to College Station on the afternoon of May 7, Acting on information they sought out the appellant, L. V. Haire, and his wife, Norma Jean, whom Mrs. Jackson identified as the girl who had come by for Freddie Lee. At the officers’ request L. Y. and Norma Jean accompanied them to the sheriff’s headquarters for questioning, but neither of the Haires had then been placed under arrest.

At headquarters additional information led the officers to put L. Y. under arrest, on suspicion, and to begin a search for Freddie Lee’s body in certain wheat fields near the Sweet Home community. In the course of that search the Haires were brought to the scene. In answer to an inquiry Norma Jean said that the body was to the right of the road, but L. V. spoke up and said, “No, Honey, on the left.” In similar fashion Norma Jean said the gun was under the bed, but L. Y. said, “No, it’s up in the fireplace.” The body was found on the left, as L. Y. had said. The officers obtained a search warrant and found the pistol in the chimney at the Haires’ house. Six bullets taken from Freddie Lee’s body were shown by a ballistics expert to have been fired from that pistol. There was other testimony connecting L. Y. Haire with the crime, including proof that he had warned Freddie Lee to stay away from Norma Jean and that he had threatened to kill Freddie Lee.

Counsel insist that the court erred in admitting Haire’s statements about the location of the body and of the pistol, for the reason that he had not then been given a Miranda warning. As we read the record, both statements were made voluntarily and spontaneously— not in response to any interrogation of Haire by the officers. The statements were therefore admissible. Edington v. State, 243 Ark. 10, 418 S.W. 2d 637 (1967).

It is contended that the pistol and several articles of clothing were inadmissible, for the reason that they were obtained by the officers without a search warrant. The only testimony on the point is Officer Lewis’ uncontradicted statement that the officers “got a search warrant and went to the house with it.” There was no motion before the trial to suppress the testimony. In fact, there was no proper objection even when the articles were received in evidence. All the record shows is that when the State offered the articles one by one, the trial judge, without any objection having been made, announced a ruling to this effect in each instance: ‘ ‘ Let it be introduced over the defendant’s objections and exceptions.” Thus the record contains neither a specific objection nor a showing that the exhibits were seized without a warrant.

This appeal is from a second trial, the first one having ended in a mistrial. At the first trial the jury were unable to reach a verdict. It is now insisted that the court below erred in permitting the State to introduce the testimony given by the witness Freddie Jean Porter at the former trial. ¥e find no error. There was proof that three officers attempted to find the witness during the week preceding the second trial, but they were unable to do so, it being their information that she had left the city and that her whereabouts were unknown. No abuse of the court’s discretion in the matter appears. Mode v. State, 234 Ark. 46, 350 S.W. 2d 675 (1961).

With respect to the burden of proof on the issue of justifiable homicide, the court gave the usual instruction in the language of the statute, Ark. Stat. Ann. § 41-2246 (Repl. 1964), with the customary proviso that upon the whole case the burden is on the State to prove the accused’s guilt beyond a reasonable doubt. That instruction has been approved in many cases. See Ellis v. State, 234 Ark. 1072, 356 S.W. 2d 426 (1962); Brown v. State, 231 Ark. 363, 329 S.W. 2d 521 (1959). Other points are argued, but we find each one either to be unsupported by the proof or not to have been brought forward in the motion for a new trial. Thus no reversible error is shown.

Affirmed.


author: Paul Ward, Justice.

text:
    Robert Ragsdale v. State of Arkansas
    5357
    432 S.W. 2d 11
    Opinion Delivered October 7, 1968

      W. B. Howard and Jack Segars for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Paul Ward, Justice.

This is an appeal by Robert Ragsdale (appellant) from a conviction of negligent homicide. The pertinent background facts are not in dispute and will be briefly set out below.

On April 29, 1968 appellant, while driving across a bridge on State Highway No. 1 located about eight miles north of Jonesboro, collided with another car in which Albert Passmore was a passenger. As a result, Pass-more was killed and appellant was injured.

At the trial, no eye-witness was called by either side, and the State's case was based on circumstantial evb dence.

On appeal, appellant relies on four separate points. However, we find it necessary to discuss only one point, which, we think, calls for a reversal. We agree with appellant that “the trial court erred in permitting evidence of a blood-alcohol test run on appellant”.

It appears undisputed that Dr. Joe Ledbetter was the only one who had a blood test made on appellant— which test showed some trace of alcohol — and that it was made for the purpose of prescribing for, and treating the injuries of, appellant. The test was actually made by Dr. Baker who stated he did so at the request of Dr. Ledbetter for diagnostic purposes, and not in compliance with the request of anyone else. Both doctors stated the test was not made at the request of Trooper Jackson or the Prosecuting Attorney.

Under the above state of the record it must be concluded that the relationship between Dr. Ledbetter and appellant was one of doctor and patient. Nevertheless, tbe result of the tests was introduced in evidence over repeated objections by appellant.

It is, and must be, conceded by tbe State that, if this was a civil action, tbe result of tbe test was a privileged communication between doctor and patient and, therefore, was inadmissible in evidence. However, it is tbe contention of tbe State such rule does not apply in criminal cases. It appears that this exact issue has never been clearly decided by this Court. For reasons mentioned below, we have concluded tbe rule does apply, under tbe circumstances of this case, in criminal cases.

(a) Ark. Stat. Ann. § 28-607 (Repl. 1962) which, in essence and parts pertinent here, provides that no doctor or nurse shall be compelled to disclose any information which is acquired from bis patient to enable him to prescribe, provided the patient can waive this privilege. It is noted that there is nothing in the statute which limits its application to civil cases. In the case of Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720 it was held that tbe above statute was enacted as a matter of public policy.

(b) In the case of Edwards v. State, 244 Ark. 1145, 429 S.W. 2d 92, this Court bad occasion to comment on tbe application of said section 28-607 as follows:

“In some states such statutes have been construed to apply only to civil cases; other courts have held them applicable to criminal trials as well. See, for example, State v. Betts, Ore. 384 P. 2d 198 (1963), and State v. Sullivan, Wash., 373 P. 2d 474 (1962). In the past we have assumed, without expressly declaring, that our statute does apply to criminal cases. Wimberly v. State, 217 Ark. 130, 228 S.W. 2d 991 (1950); Cabe v. State, 182 Ark. 49, 30 S.W. 2d 855 (1930); Burris v. State, infra.”

In view of what we have pointed out above we are bolding that tbe statute in question applies to criminal as well as to civil cases. If that was not the intent of the legislature we prefer to let it so state.

Reversed.

Fogleman, J., disqualified.

Harris, C.J. concurs.