author: John A. Fogleman, Justice.

text:
    G. L. NICKLAUS, TRUSTEE in bankruptcy in succession et al v. Robert Y. McCLURE
    5-435 9
    423 S. W. 2d 562
    Opinion delivered February 5, 1968

      Rose, Meek, House, Barron, Nash So Williamson, for appellee and cross-appellant.

      James K. Young, for appellants.
   John A. Fogleman, Justice.

This is an appeal from a decree dismissing a suit to recover payments alleged to constitute preferences under the federal bankruptcy act.

The suit was brought by R. M. Priddy, Trustee in Bankruptcy of the estate of Commodities, Inc., a cor-porátion, adjudicated bankrupt on November 5, 1959, on petition filed September 16, 1959. Later, G. L. Nicklaus, trustee in succession to Priddy, was substituted as plaintiff during the pendency of the action in the lower court. It was alleged that appellee, who was president of the corporation, received $10,000, or some other amount, from the corporation in payment of an indebtedness within -120 days prior to the filing of the petition in bankruptcy, with full knowledge of the insolvency of the corporation. The suit was filed July 13, 1962. The complaint cbntained an allegation that information relating to the cause of action was not obtained by the trustee until an audit of the affairs of the corporation was had. Appellee filed a general denial and pleaded the bar of limitations set forth in Ark. Stat. Ann. § 64-803 (Repl. 1.966) and in 11 U. S. C. § 29. The trial court entered judgment for appellee on December 8, 1966, finding that the action was barred by 11 TJ. S. C. § 29(e). This judgment was set aside by the trial court on January 4, 1967, and appellant Hi-Pro Pish Products, Inc., a creditor and assignee of other creditors of the bankrupt corporation, was permitted to intervene. Later the court dismissed the action “on limitations.”

The trustee employed one D. C. (Dave) Garrett, CPA, to make an audit of the affairs of the corporation. This audit was delivered to the trustee between July 1 and July 15, 1961. The trustee was authorized to bring this suit on April 4, 1962.

Appellee was called as a witness by appellant. He testified that he, his wife, and an unnamed person each owned 30% of the stock of the corporation. McClure was president and had general supervision of the corporation business. The Bank of Russellville loaned the corporation $10,000 on March 25, 1959. McClure testified that the note was signed by Commodities, Inc. and endorsed by him. He stated that these proceeds did not go through his hands, the bank having only given him a deposit slip to the account of Commodities, Inc. for the proceeds of the loan. These were used to pay debts of the corporation.

It was stipulated that the loan was repaid as follows :

$1,630.00 April 28, 1959
1,638.15 May 26, 1959
1,646.34 June 26, 1959
1,655.76 July 25, 1959
1,662.70 August 25, 1959
1,767.05 August 27, 1959

The executive vice president of the Bank of Russell-ville testified that a loan of $10,000 was made to appel-lee personally; however, the loan was actually made by an officer of the bank who did not testify. The bank’s liability ledger sheet indicated that this loan was made on March 25, 1959, for 30 days. The credits appearing on this ledger correspond with the stipulated dates and amounts of payments on the loan which appellee testified was made to the corporation.

D. C. Garrett testified that his audit of the books of the corporation was not a complete one because many of its records were not available for inspection. McClure had testified that some of the corporate records had been destroyed prior to the filing of the bankruptcy petition. Garrett’s partial audit and report to the trustee in bankruptcy were dated in May 1961. He had found a record of payments by the corporation on the $10,000 note on the journal of the corporation. It corresponded with the dates and amounts shown on the bank’s liability ledger sheet. When the witness asked ap-pellee for the note, he was told that it had been destroyed. The books of the corporation reflected the receipt of this $10,000 and showed that it was expended in payment of company obligations.

Title 11, § 29(e), USCA provides in pertinent part:

“A receiver or trustee may, within two years subsequent to the date of adjudication or within such further period of time as the Federal or State law may permit, institute proceedings in behalf of the estate upon any claim against which the period of limitation fixed by Federal or State law had not expired at the time of the filing of the petition in bankruptcy.”

Appellant seeks to avoid the bar of this statute by the argument that the statutory period did not begin to run until July 1, 1961, when the audit was delivered to appellant.

We find that the learned chancellor was correct in his application of this statute of limitations. Authorities cited by appellants are based upon the rule of law that statutes of limitations do not run against a cause of action based upon fraud until the fraud is discovered. In equity this rule has often been applied where the one allegedly injured remains in ignorance of the facts without fault or want of diligence on his part. See Bailey v. Glover, 88 U. S. (21 Wall.) 342, 22 L. Ed. 636; Holmberg v. Armbrecht, 327 U. S. 392, 66 S. Ct. 582, 90 L. Ed. 743.

This cause of action to set aside a preference is created by the bankruptcy statutes themselves. See Herget v. Central Nat’l. Bank & Trust Co., 324 U. S. 4, 65 S. Ct. 505, 89 L. Ed. 656, where it was clearly held that the two-year statute of limitations provided by 11 TJSC, § 29(e) applies to a cause of action to set aside and recover a preferential transfer. Resort to state statutes of limitations, such as the three-year limitation provided in Ark. Stat. Ann. § 37-206 (Repl. 1962), suggested by appellants, is foreclosed by that opinion, insofar as actions to recover preferences are. concerned. The qualification in the federal statute allowing a longer period under applicable federal or state law applies only to causes of action accruing before the adjudication in baiikruptcy and not then barred by the applicable limitations statute.

In actions for recovery of preferential transfers, made fraudulent only by the statute itself, it has been held that the doctrine of Bailey v. Glover, supra, [also relied on in Austrian v. Williams, 80 F. Supp. 437 (S. D. NY 1948).] was not to be read into § 29(e). Wells v. Place, 92 F. Supp. 477 (N. D. Ohio 1950). On the other hand, there are decisions in Clayton Act cases holding that fraudulent concealment of causes of action created by federal statute tolls all applicable statutes of limitations. See Kansas City v. Fed. Pac. Elec. Co., 310 F. 2d 271 (CCA 8th 1962); Pub. Serv. Co. v. Gen. Elec. Co., 315 F. 2d 306 (CCA 10th 1963); Westinghouse Elec. Corp. v. Pac. Gas & Elec. Co., 326 F. 2d 575 (CCA 9th 1964). These decisions apply statements from the opinion in Holmberg v. Armbrecht, 327 U. S. 392, 66 S. Ct. 582. 90 L. Ed. 743, which might well be considered dicta.

Even if the doctrine should be held applicable, however, we do not find adequate factual basis to sustain appellants’ position. "Where there is sufficient information in the record to put the trustee in bankruptcy on inquiry, there is no fraudulent concealment. Greene v. Taylor, 132 U. S. 415, 10 S. Ct. 138, 33 L. Ed. 411. The. “Statement of Affairs” filed January 4, 1960, by ap-pellee on behalf of the corporation in the bankruptcy proceeding stated the following:

A financial statement had been furnished by the corporation to Peoples Exchange Bank in Russell-ville in 1959;
Bank accounts were maintained in the same bank, as well as in the Bank of Russellville and the Bank of Dardanelle;
The loan of $10,000 by the Bank of Russellville was repaid within a year immediately preceding the filing of the bankruptcy petition;
All papers and ledgers had been delivered to the trustee.

Had appellants or their accountant made inquiry at the Bank of Russellville at the time this document was filed, or within 22 months thereafter, they would have learned every fact that is in the record now. There seems to have been no difficulty in ascertaining that the payments on this loan were made by the corporation, once the inquiry was made. The books and records in the hands of trustee’s accountant, as set out earlier, also showed practically every fact necessary to institute this, action. It appears that they had been in the accountant’s hands for more than six months prior to the date of his report. One seeking to avoid the bar of the statute of limitation provided in bankruptcy statutes must show diligence on his part in seeking knowledge of the facts which are the foundation of the cause of action. Avery v. Cleary, 132 U. S. 604, 10 S. Ct. 220, 33 L. Ed. 469.

We have searched the record and find no act on the part of appellee by which he sought to conceal the facts from appellants. Some affirmative act on his part is required before we can say there was fraudulent concealment. Mere failure to reveal, in the absence of a duty to speak, is not sufficient. Williams v. Purdy, 223 Ark. 275, 265 S. W. 2d 534.

The judgment is affirmed.

       Appellee contends. on cross-appeal that the chancery court erred in permitting this intervention. We deem it unnecessary to pass- on this question because an appeal was taken by the trustee and the brief was filed on behalf of both the trustee and the in-tervenor, the questions raised by them here being identical.


source: Caselaw Access Project

license: Public Domain

text:
    O. T. BAKER, Guardian v. Walter A. HELMS et ux
    5-4409
    423 S. W. 2d 540
    Opinion delivered February 5, 1968

      Guy H. Jones and Phil Stratton, for appellant.

      George F. Hartje Jr., for appellees.
   John A. Fogleman, Justice.

This appeal is taken from a decree of the trial court dismissing appellant’s complaint seeking to set aside a deed dated August 17, 1956, from one E. E. Hodges and his wife, Olga, tor appellee Hazel Ella Helms, one of their seven children living at the time of the execution of the deed.

This deed conveyed lots in Vilonia on which the Hodges home was located. It was recorded on November 16, 1956. The consideration recited is $1.00 and other valuable considerations. A reservation in the deed is worded as follows:

“Retaining a dower interest for the said E. E. Hodges & Olga A. Hodges for the use and possession during their natural life.”

The attack on this deed is twofold; i. e., (1) breach of a continuous promise by appellees of future support to appellant’s ward and his wife, and (2) fraud in procurement. Appellees deny that a promise of future support to E. E. and Olga Hodges constituted any part of the consideration for the deed and assert that any claim for cancellation of the deed is barred by the statute of limitations and laches.

At the time of the trial, E. E. Hodges was 91 years of age, 10 years older than he was when the deed was executed. He had built a modest home on these lots which he had owned since 1906. The deed in question had been drawn by an attorney at Beebe and the acknowledgment thereof was before him.

. Mrs. Olga Hodges died April 30, 1960, having resided on the property until her death. E. E. Hodges resided there after the execution of the deed, except for absences due to surgery and a broken hip, because of which he was a patient in hospitals and nursing homes. He was in hospitals and nursing homes in the latter part of 1963 and early 1964. "When he returned home, the appellees had gone to California. He remained at home for six or seven, months during their absence. A short time before this case was filed, he broke his hip and went to a hospital, after which his son, Doyle, took him to a nursing home where he was at the time of the trial. His maintenance cost there exceeds the welfare department allowance by $70 per month, the payment of which is borne by appellee Hazel Helms and three of her brothers in rotation.

When , the deed was executed, appellees had sold a motel at Beebe and were apparently in good financial condition. At least six years before the execution of the deed, the parents had executed a will or wills devising and bequeathing everything they owned to appellee Hazel Helms. This was done with the acquiescence of most, if not all, of the Hodges children. One of them, Doyle (W. E.) Hodges (who admits having promoted this suit), claims to have instigated and encouraged this testamentary action. It is clear that it was not contemplated at that time that the Helmses would ever live with the parents at the family home. It is certain that there was no agreement at this time that they would support the father and mother.

The Hodges family was raised in comparative poverty. ¡Several of the children left home at early ages to seek employment. Hazel was probably the first to leave when she was 14 of 15 years of age. There seems to be no dispute about the fact that thereafter she made substantial contributions to the maintenance and support of the family, particularly to her mother and father. The only dispute is about the extent of these contributions.

Hazel Helms testified that she and her husband moved in with her parents, at their invitation and urging, after the sale of the Beebe Motel, although she and her husband had previously planned to build their own home. She said that the move was considered by her mother and father for four or five months. The well at the Hodges homestead had gone dry and the parents were persistent about the need for alterations. The will or wills had previously been made, but Hazel said she told her mother that if she and her husband were going to spend money, for the home place, she would prefer a deed rather than a will. After the parents approved, she related, they went to the attorney’s office in Beebe. While they wanted a will, she insisted on “a dower right.” She stated that her parents voluntarily gave her the property, except for their right to live there.

After the execution of the deed, appellees moved into the parents’ home, remodeled it and made substantial improvements thereto. They have maintained the property and paid all taxes thereon since that time. While appellees were apparently in good financial circumstances when the deed was executed, adversity has come upon them lately. These adverse conditions were attributable, at least in part, to the poor health of Walter Helms which has resulted in his becoming a wheel chair invalid since he had a leg amputated in 1964. So far as the record reveals, the only income of appellees is $300 per month from social security payments and veteran’s pension payments to the husband. The wife says that she is unable to seek employment because of her husband’s need for her attention.

Not long after the execution of the deed, the mother and father qualified for welfare grants and E. E. Hodges is still receiving a welfare check.

Appellees endeavored to sell the property in 1964 and 1966, but apparently were impeded by the reservation. in the deed. It is admitted that appellee Hazel Helms offered Doyle $500 to obtain their father’s signature on a quitclaim deed which would make a conveyance of title to the property possible. Hazel Helms testified that her father was to have whatever the law allowed for his life estate from the proceeds of the sale.

No attempt was ever made by E. E. or Olga Hodges to rescind or cancel this deed. Appellant’s complaint seeking to do so was filed April 24, 1967. The exact date of Ms appointment as guardian of E. E. Hodges does not appear, but it seems to have been subsequent to the appellees ’ listing of the property for sale by Mm as a real estate agent in January 1967.

Although one other son testified on each side, the real controversy is between Doyle Hodges and appel-lees. It seems clear that this brother has known of the existence of this deed since 1959. His brother who testified for appellant recalled having gone with his sister to a lawyer’s office to discuss the drawing of such a document. The brother who testified for appellees said that he knew of the deed earlier, although he lived in California and had lived on the west coast since 1936.

The testimony as to the existence of an agreement on the part of Hazel Helms to support her parents for the rest of their lives is sharply conflicting. Most of it was given by Doyle Hodges and relates to statements of Ms sister after the deed to her was executed. When first asked about conversations with Ms sister about her responsibilities under the deed, he told of an occasion when Hazel, sitting with their mother and father, spoke on the subject. He said: “She says I promised to take care of — you only have a lifetime dower in it. Now wnat that means, I don’t know.” He also stated: “There’s nothing I can recite about the commitment of the defendant if you want me to.” In response to the trial judge’s question whether his mother or father ever told him what constituted the consideration for the deed, he answered, in part:

“Said they were going to care for them. You know didn’t make it very strong. Did — says this is disagreeable here. One statement from mother says Son, I wish we had a little home off to ourselves. I said if I ever get the money and in shape, I’ll get it for you. If they won’t let you build it here, I’ll build it somewhere else. Said they were supposed to take care of us but she don’t cook half of the time. ’ ’

The date or dates of such statements are not given. Doyle Hodges and his wife also testified that on one occasion they got Hazel Helms off the street when she was intoxicated and driving an automobile. They said that, after taking her to their home, they went to the home of the oldest Hodges daughter where the two sisters got into a quarrel, after which Hazel was said by Doyle to have responded to their sister’s accusation that she took their mother’s home by saying that she took it because she had agreed to take care of them the rest of their lives. Doyle’s wife’s version was that Hazel said that she had taken the place and would keep it and would take care of “Mama” and “Papa” as long as she (Hazel) lived. Doyle testified that on another occasion, while his mother was living, his sister Hazel cursed their father and called him a “s.o.b.” and other names, and said to him, “[Y]ou can only have a lifetime dower and I agreed to take care of you, but you can take care of yourself.” Harold Hodges, who was younger than either Doyle or Hazel, was the son who testified on behalf of appellant. He moved to California in 1936, but visited at his father’s home almost every summer. His sister had talked to him about getting the property conveyed to her about 1955 or 1956, and said the home was “made” to her and the “folks” would have a place to stay and would be well taken care of as long as they lived, according to his understanding. He went with her to the attorney in Beebe to talk about drawing up a will or deed for the place to go to her when their parents passed away, their having a home there as long as they lived. Later, in response to questioning by the trial judge, Harold testified that Hazel said, in the absence of their father and mother, that in order to get this property, she would see that the folks were well taken care of as long as they lived.

On the other hand, Hazel Helms vehemently and repeatedly denied any such agreement.

I. 0. Lee Hodges testified on behalf of appellees. He had left home in 1936, when about 21 years of age, and had lived in Oregon and California since that time. He stated that in 1957 or 1958, after extensive improvements had been made, he asked his mother if there was any “setup” to protect Hazel’s interest. His mother replied, he said, that a will and the necessary papers had been made to protect her. His mother said to him that Hazel had done so much for them that she hoped she could be repaid. Mrs. Hodges’ concern, said I. 0. Lee, was a home near Hazel. He had known that Hazel had the deed since 1957 or 1958, having been told of it by his mother.

E. E. Hodges, the grantor, testified after the court adjourned to Meadow Lake Nursing Home upon invitation of appellees’ counsel and following testimony by Doyle Hodges that his father could clearly reveal the situation. He denied knowing what he had signed but said he learned for sure what it was after about two years. On examination by appellant’s counsel, he denied that Hazel ever used any language around him indicating that she would take care of him the rest of his life. He never talked to her about the matter since he discovered that he signed a deed.

A mere preponderance of the evidence is not sufficient to establish an alleged unperformed agreement on the part of the grantee in a deed to support the grantor where that consideration is not expressed in the deed. Viesey v. Wooten, 220 Ark. 962, 251 S. W. 2d 593; Hammett v. Cannon, 226 Ark. 300, 289 S. W. 2d 683. Evidence to engraft upon a deed a consideration other than that expressed therein must be clear, cogent and convincing. May v. Alsobrook, 221 Ark. 293, 253 S. W. 2d 29. Evidence to justify the cancellation in equity of a deed properly executed and acknowledged must also be something more than a mere preponderance. It must be clear, strong and conclusive, or clear, cogent and convincing, or clear, unequivocal and decisive. Williams v. Shaver, 100 Ark. 565, 140 S. W. 740; Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253; Johnson v. McAdoo, 222 Ark. 914, 263 S. W. 2d 701; Swim v. Brewster, 177 Ark. 1171, 9 S. W. 2d 560. Especially is this burden applicable when fraud is alleged as the basis of cancellation. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Herr v. Murphree, 240 Ark. 834, 402 S. W. 2d 393.

In a letter constituting his findings, the trial judge found all issues of law and fact in favor of appellees. Tbe court’s decree contained these specific findings of fact:

‘‘That certain Warranty Deed executed by E. E. Hodges and wife, Olga Hodges, on the 17th day of August, 1956, and recorded in Deed Record Book 140 at page 217 in the office of the Recorder within and for Faulkner County, Arkansas, was executed for a valuable consideration, and that said deed should not be cancelled nor set aside. That said deed was not executed in return for any continuing promise of support by the defendants herein to E. E. Hodges or his wife, Olga Hodges, and that the said Hazel Ella Helms took title to the following described property subject to a life estate in E. E. Hodges and his wife, Olga Hodges, who is now deceased. ’ ’

When we consider the testimony showing the contributions made by Mrs. Helms to her mother, father, brothers and sister, before the execution of the deed, the improvements made by the Helms on the property after the deed, and the fact that the mother and father resided in the-home as long as, and whenever they desired to do so, we cannot say that the chancellor, who saw and heard the witnesses and observed their manner and demeanor while testifying, erred in finding that appellant failed to meet his burden. We cannot, for that matter, say that his findings are against the preponderance of the evidence. Thus, it is not necessary that we consider the very conflicting testimony relating to manner of performance of the alleged contract.

The decree of the lower court is affirmed.

       It is another of life’s sad stories of acrimonious controversy among siblings over the disposition of property acquired by their parents.

       While this reservation may seem ambiguous, it is not questioned that the correct construction of the clause effects the retention of an estate for the life of the survivor of E. E. and Olga Hodges.


author: J. Fred Jones, Justice.

text:
    Jimmy BLAKE v. STATE of Arkansas
    5323
    423 S. W. 2d 544
    Opinion delivered February 5, 1968

      Leroy Fromm, for appellant.

      Joe Purcell, Attorney General; Bon Lmgston, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal from a Criminal Procedure Rule 1 hearing denying appellant release from the Arkansas penitentiary.

The appellant, Jimmy Blake, is sixteen years of age, has less than a fifth grade education, and is one of ten children whose father does common labor at a min and whose mother works in a laundry.

Appellant’s first brush with the law came in 1965, when he was sent to the Boy’s Industrial School from Woodruff County Juvenile Court. The instant appeal involves three cases in the White County Circuit Court.

In July 1966, in case number 2132, appellant was charged with burglary, petit larceny, and car theft. At the Rule 1 hearing, appellant testified that he could not read or write, but that he made a statement to the officers when he was arrested on these charges, and that he signed a statement, that about three weeks later an attorney was appointed to represent him, and that he entered a plea of guilty because he felt that he would not “get as much time” on a plea of guilty. Appellant was sentenced to the penitentiary for two years on the burglary charge and five years on the grand larceny charge (car theft). These sentences were suspended and appellant was sent to the Boy’s Industrial School where he remained for four months, after which he ran away. He was captured the following day and returned to the Industrial School and about three weeks later he escaped again.

During this absence from the Industrial School in January 1967, he was arrested and charged in case number 2142 with five counts each of burglary and petit larceny and two counts of grand larceny. Appellant made an oral statement to the arresting officers admitting his guilt to these charges and by appointed counsel, he entered a plea of guilty at his trial. He was sentenced to ten years on each of the five counts of burglary, sentences to run concurrently. The sentences were again suspended and appellant was again returned to the Boy’s Industrial School, from which he escaped again after about three weeks.

"While absent from the Industrial School this time, appellant was arrested in March 1967, and charged in case number 2151 with burglary, grand larceny, and petit larceny. Once again he made an oral statement to the arresting officers and pleaded guilty by appointed counsel. He received a sentence of two years on each of two counts of burglary and one year on grand larceny, sentences to run consecutive to each other and consecutive to the sentences in cases number 2132 and 2142. This sentence in case number 2151 was suspended, but the suspension of sentence in eases number 2132 and 2142 was revoked and appellant was sent to the penitentiary. Thus, at present, appellant is serving 17 years as sentenced in 2132 and 2142, and has five years suspension remaining in case number 2151.

In July 1967, appellant testified at his Bule 1 hearing where he was represented by appointed counsel. From the petition, the testimony of appellant, the testimony of the sheriff of "White County, and the testimony of the counsel appointed for appellant in his prior trials, together with all matters appearing of record, including the docket sheets and files in the circuit clerk’s office, and after argument of counsel, the trial court denied relief, from which this appeal is brought. For reversal, appellant relies upon five points:

“1. Appellant was not advised of his right to counsel and his right to remain silent during his interrogations. He could not have made an intelligent waiver of these rights.
2. Appellant did not have the services of an attorney prior to his conviction in Case No. 2132.
3. Appellant did not have assistance of counsel at the critical stages of the proceedings against him in Cases No. 2142 and No. 2151. He did not have the effective benefit of counsel after counsel was appointed in Case No. 2142 and Case No. 2151.
4. Appellant was promised shorter sentences in Case No. 2142 and Case No. 2151 in return for a guilty plea. Appellant did not know the full consequences of his guilty plea in Case No. 2151.
5. Appellant’s sentence to the Arkansas State Penitentiary constitutes cruel and. unusual punishment within the meaning and spirit of the Eighth Amendment to the United States Constitution.”

As to the first point argued by appellant, we find no merit. Though appellant denies being advised of his rights, the trial court found, and the sheriff of White County who arrested appellant testified, that appellant was advised of his rights on . each occasion and that appellant was not interrogated, but always talked freely and was cooperative. The sheriff also testified that appellant usually had the stolen items with him, indicating that there was no need for a confession. The cases of Meeks v. State 239 Ark. 1066, 396 S. W. 2d 306; Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204, and Johnson v. Zerbst, 304 U. S. 458, 59 S. Ct. 1019, 82 L. Ed. 1461, relied upon by appellant on the issue of intelligent waiver, are not applicable here. These cases were reversed when the defendant went to trial and pleaded guilty without the aid of counsel and without an intelligent waiver of counsel. The appellant in the case at bar was represented by counsel prior to his guilty plea. Appellant’s reliance on Miranaa v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, and Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, is to no avail here, as appellant pleaded guilty in all three cases, and thus, the confessions were never used against him. In Roach v. Bennett, Warden, 148 N. W. 2d 488 (Iowa 1967), where the defendant made admissions and gave statements as to his guilt during the first two days of his detention without being advised of his right to counsel, but had counsel at the time of his plea of guilty in open court, the Supreme Court of Iowa, in habeas corpus proceedings, held:

“Since statements allegedly given were not introduced or considered in a trial, the rights announced in Escobedo and Miranda could not have been violated. ’ ’

Appellant s second point is also without merit. We agree that the docket entry does not reflect that appellant had counsel in case number 2132 and that it is not shown in the record who that counsel was, but the appellant himself testified on direct and on cross-examination that counsel was appointed for him in that case about three weeks after his arrest, and that the counsel was present in the court room when he entered a plea of guilty. The trial court found as a fact that appellant had counsel in all three eases and this is supported by the evidence.

Appellant’s third point is also to no avail. As to the issue of whether he had counsel at the critical stages, we reiterate our holding, supra, that Escobedo and Miranda ,do not apply where the confession is not considered or introduced against the defendant in á trial. On the issue of whether appellant had effective benefit of counsel after counsel was appointed, the record shows that attorneys were appointed for appellant on the same date as his plea of guilty was made and sentence pronounced. We agree that under the facts and circumstances of a particular case, this might amount to a failure of effective benefit of counsel, but we do not agree that this is the situation here. The attorneys in the prior cases testified that they discussed the respective cases with the appellant, his parents, the prosecutor, and the. court in chambers; that they felt that they did what was best for appellant; that they fully explained the charges to the appellant and his parents, and that appellant and his family were satisfied that a guilty plea was best. Under these facts and circumstances, we cannot see where advice to plead guilty would not be effective benefit of counsel, even if the attorney felt that the appellant’s confession would be inadmissible.

We find no merit in the fourth point relied upon by appellant. While appellant testified that the sheriff and appellant’s attorneys promised him.a certain sentence if he would plead guilty, the record indicates that the. attorneys and prosecutor only stated that, in their opinion and with their recommendations to the court, appellant would get a shorter sentence or be sent to the Boy’s Industrial School on a plea of guilty. The sheriff, in his testimony, flatly denied that he advised appellant to plead guilty or that appellant would receive a certain sentence for a plea of guilty. The trial court found against appellant on this issue and this finding of fact is supported by the evidence.

Appellant also contends that he did not know the full consequences of his guilty plea in case number 2151. His attorney in that case testified that appellant and his parents clearly understood the consequences of appellant’s guilty plea and he (the attorney) took notes concerning this. The trial court found that appellant knew the full consequences of his plea and this is supported by sufficient evidence.

We cannot agree with the appellant as to his fifth assignment of error. There is no contention by appellant that any of the sentences he received are more than the maximum called for by our criminal code. He merely argues that the cumulative effect of the sentences constitutes cruel and unusual punishment in his case, considering his age, education, etc. We feel that the trial court could and did consider the number of times appellant has been sent to the Boy’s Industrial School, the great number of criminal offenses he has committed, how many sentences have been suspended, and how many opportunities appellant has had to stay out of the penitentiary. The fact that the punishment authorized is severe does not make it cruel or unusual. Johnson v. State, 214 Ark. 902, 218 S. W. 2d 687. It is within the power of the legislature to classify crimes and determine punishment for violation of such classifications. After such punishment is set, and until it is declared unconstitutional, no sentence under it can be regarded as cruel or unusual. Hadley v. State, 196 Ark. 307, 117 S. W. 2d 352. We do not find the sentence in the present case to result from passion or prejudice, exceed the statutory limits, or to be cruel and unusual. Furthermore, we have on many occasions held that the suspension of a sentence rests in the sound discretion of the trial court and that the sufficiency of the evidence for revocation of such suspension also lies within the sound discretion of the trial court. See Smith v. State, 241 Ark. 958, 411 S. W. 2d 510, and Kinard v. City of Conway, 241 Ark. 255, 407 S. W. 2d 382. No abuse of that discretion has been shown in the case at bar.

We agree with the trial court that appellant’s petition is without merit.

Affirmed.


author: Conley Byrd, Justice.

text:
    Ollis HEARD v. STATE of Arkansas
    5316
    424 S. W. 2d 179
    Opinion delivered February 5, 1968
    [Rehearing denied March 11, 1968.]

      Charles J. Hlavmka, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Ollis Heard was convicted of burglary and grand larceny in connection with the breaking and entering of the Broadway Shoe iShop, 525 East Broad Street, Texarkana, Arkansas, and the taking and carrying away of certain property therefrom. For reversal he relies upon the following:

“The trial court erred in admitting into evidence certain statements allegedly made by the defendant as a result of custodial interrogation because such statements had been made prior to the defendant’s having been taken before a magistrate, without his having been informed of his right to remain silent, without his having been warned that any statement might be used against him, without his having been informed of his right to consult with a lawyer and to have a lawyer present during an interrogation, without his having been informed that a lawyer would be appointed to represent him if he were unable to employ one and because the alleged statements were made under duress and pressure.”

The record shows that a warrant was outstanding for appellant’s arrest and that when the officers first attempted to apprehend him he ran, notwithstanding two warning shotgun shots. He was finally apprehended the same day in a marshy area behind the Ritz Motel by officers from both Texarkana, Arkansas and Texarkana, Texas. When he was taken into custody by Lt. Thurman Quisenberry, he was suffering from a buckshot wound inflicted by Max Tackett, Chief of Police of Texarkana, Arkansas. Immediately upon arrest he was fingerprinted and taken to a doctor for treatment of the wound (in the nature of a pump knot). Appellant was then jailed until around 1:00 p. m. the next day, when he was taken to Chief Tackett’s office. There appellant signed a statement showing that the Miranda warning (Miranda v. Arizona, 384 U.S. 436 [1967]) had been given and his rights thereunder waived. He also signed eleven other typed statements connecting him with eleven burglaries in the city of Texarkana.

The Miranda warning consisted of twelve mimeographed questions on legal-size paper, with space between each question for the answer. The record shows that answers were inserted and the statement signed by appellant and witnessed by Max Tackett and Thurman Quisenberry. The other eleven statements were taken by typing the question and then the answer. Appellant’s signature on each statement was witnessed by the officers present at the time.

Under our statutes, failure to take an arrested person before a magistrate before interrogating him does not vitiate a confession so obtained. Paschal v. State, 243 Ark. 329, 420 S. W. 2d 73 (1967).

Regarding the Miranda warning, appellant contends that it was nothing more than a preliminary ritual to the police’s interrogation and that the record shows appellant incapable of reading and comprehending the prepared questions. In this connection Porter Eastland, appellant’s third grade teacher, testified that appellant was unable to read and write. Substantially the same testimony was given by Whitaker Allen, Jr., appellant’s seventh and eighth grade coach. Mott H. Mosely, principal of Booker T. Washington High School, testified that in his opinion appellant was unable to read and write. The latter opinion was based on appellant’s scholastic record and not on any personal observation by Mr. Mosely.

Appellant says that when he was taken to the fin-gerpcinl room on the day of his arrest, Lt. Quisenberry got angry and reached for a club, “something like a nightclub,” and that while Lt. Quisenberry was doing this, Chief Tackett kicked him. He asserts that before he was taken to the doctor he was forced to sign some statements which he couldn’t read. Appellant also says that when he was brought to the Chief’s office the day after the arrest, they handed him some papers and the Chief began reading to him; and that after Chief Tack-ett read this thing to him, the Chief told him “there wasn’t no need of me trying to hold back anything, that I might as well go on and clear everything up, and he handed me some more papers and things, and told me to sign them.” Appellant says that he can only write and spell his name but cannot read.

On the Motion to Suppress, during appellant’s interrogation by the court, the following occurred:

“Q All right, go ahead with what you were about to tell me. You were about to tell me what scared you into signing the statements the second day, I believe.
“A He told me to go ahead on — that I might as well to go on and sign them. I don’t know what it was. He was reading something; I don’t know what it was, and then he mentioned that I had already signed the papers, so I went on and signed them then. I don’t know how many there was. There wasn’t too many, and then he read this other statement off. He read that off to me then, and he said, ‘We’ve got yon now.’
“Q This was Chief Tackett talking all the time yon say ‘he?’
“A Yes, sir.”

The officers testified they personally knew appellant, he having been arrested before. They denied any abnse of appellant and explained that the Mirawda warning was given by handing appellant a copy of the questions they proposed to ask him. In addition they read and explained the questions to him before they put the paper in the typewiter and started typing his answers to each specific question. As appellant responded, the officer would type the answer before proceeding to the next question. After the questions were completed, the sheet was removed for signatures. The same procedure was followed with the other statements, except that the questions were typed as they were asked.

With respect to the language used in the answers, Chief Tackett explained as follows:

“. . . then I read each question as I came to it, and asked him if he understood what it said. And then I wrote down exactly what he told me. Now, I didn’t just say yes or no, or uh-huh. When he said, ‘ITh-uh,’ or ‘Uh-huh,’ or ‘Yeah,’ I said, ‘Now, tell me exactly what yyu mean. ’ And for instance, on this first answer to the first question, ‘Yes, I understand that I do not have to give any statement. ’ I nailed him down to that very thing before I quit it, and I did that on each occasion, on each case.”

When, we consider appellant’s previous experience with the law, and compare the answers he gave in the statements with those he made in open court in response to questions from the lawyers and the trial court, we find that the evidence is sufficient to sustain the trial court’s finding that appellant voluntarily made the confessions after having been fully advised of his constitutional rights and having knowingly waived the same.

Notwithstanding his inability to read, the record refutes any inability to comprehend the questions asked. It may be true that the officers did some editorializing in writing down appellant’s answers, but this is not an uncommon problem in recording answers, and we do not find the discrepancies of such character as to make a material difference.

Nor can we find any merit in the contention that the Miranda warning should have been given anew each time the officers questioned appellant about a different burglary. The record shows that the questioning was continued after the warning was given, with only brief interruptions.

Affirmed.

Bnowrr, J., not participating.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Irma Lincoln HAMPTON et al
    5-4383
    423 S. W. 2d 567
    Opinion delivered February 5, 1968

      John R. Thompson and Thomas B. Keys, for appellant.

      House, Holmes & Jewell, for appellees.
   Conley Byrd, Justice.

Appellant Arkansas State Highway Commission brings this appeal from a jury verdict and judgment for $20,000 following the taking of 29.59 acres out of 130.59 acres owned by appellees.

Appellant urges that the trial court erred in permitting the landowners’ witnesses to testify that their values were based upon this land having public access without showing that there was public access to the property, and in not striking the testimony of appellees ’ expert witnesses after appellees failed to show there was public access to the property.

One of the landowners and appellees’ two expert witnesses' testified that they had in the past entered the property on the old Military Road which had been in existence since the Mexican War, running from Helena to Arch Street Pike in Little Rock. The location of the road shows up on aerial photos introduced in evidence. Mr. C. V. Barnes testified that he had used the old Military Road to get to the property as early as 1929 or 1930, that the road was not now passable by car, that a four-wheel drive vehicle was necessary, and that the road was no paved highway, but it was access, which no longer existed since the new highway had cut it in half. Mr. Lincoln, one of the landowners, stated that he bad been on the property a number of times, and that when he heard about the proposed highway, he and an adjoining landowner had gone in on the old Military Road by pick-up truck and had seen hunters and picnickers on the property. Mr. Lloyd Pearce also testified that before the taking the road was passable by four-wheel drive vehicle, but after the taking one could not use the road because the non-access highway bisected it, and that the old Military Road had been some type of access before the taking.

There was proof, both oral and documentary (photographs), that the old Military Road existed and had existed for a number of years. Testimony also showed that this road, had been used for access to the subject property for some years — rough, unpaved, even primitive access, but aócess it was, now severed by a limited access highway. - Generally speaking, an easement acquired by grant or prescription cannot be lost by mere nonuser for any length of time, no matter how great. The nonuser must be accompanied by an express or implied intention to abandon, 25 Am. Jur. 2d § 105, which intention was not shown here.

Appellant’s second point is that the trial court erred in not striking the before and after values of Mr. C. V. Barnes because he based his market for rock on sales that took place after the date of taking.

This court has long adhered to the rule that a con-demnor should not be required to purchase property at a price enhanced by the particular public project for which the property was taken. Arkansas State Highway Comm. v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1967); 4 Nichols, Eminent Domain § 12.3151 (3d ed. 1962). There is no testimony in this record that the construction of this piece of highway increased the value of lands in the area. Mr. Barnes testified that the property has granite and that his research showed that from 1950 to 1962 the United States market for granite had increased 300 per cent, due to factors such as increased river development and highway construction throughout Arkansas.

The subject property was taken in February 1962; trial was held in 1966. Mr. Barnes testified in detail about nine sales of similar property, both before and after the taking. The three sales before February 1962 ranged from $300 to $1,000 per acre; the sales after the taking (with one exception) ranged from $1,000 to $1,-850 per acre. He explained how he charted these sales and arrived at the conclusion that as of February 1962 the low trend was $750 per acre and the high $1,125 per acre. He then testified that the February 1962 value of the land taken was $22,192.50 (about $740 per acre), and damage to remaining land was $10,557.57, a total of $32,750.

Although 5 Nichols, Eminent Domain § 21.31(2) (3d ed. 1962) states that evidence of sales made subsequent to the taking is not admissible unless the sales were made almost simultaneously with the taking, the treatise prefaced this general rule with the statement that “there is ample authority to the contrary.” Simply stated:

“There is authority for the admission of evidence of sales of comparable land made subsequent to the date of condemnation where the sales considered involve land that was not benefitted or its market value affected by the public improvement causing the condemnation.” State v. Williams, (Texas 1962), 357 S. W. 2d 799.

We see no error in the court in its discretion admitting comparable sales, not too remote in time, and not having been enhanced or decreased in value by the project or improvement which prompted the taking.

Appellant’s third point is that the court committed reversible error in permitting Mr. Barnes to testify as to what the price of one foot of granite per acre would be at five cents a ton.

4 Nichols, Eminent Domain § 13.22 (3d ed. 1962), “The rule is widely prevalent in this country that the existence of mineral deposits in or on land is an element to be considered in determining the market value of such land.” (Arkansas State Highway Comm. v. Elliott, 234 Ark. 619, 353 S. W. 2d 526 [1962]).

We have permitted market value of minerals to be determined by multiplying the mineral quantity by its fixed price per unit in an unusual situation such as occurred in Arkansas State Highway Comm. v. Cockran, 230 Ark. 881, 327 S. W. 2d 733 (1959), where the land taken had been leased at royalty for mining a certain mineral. However, that was unusual, and this court in Arkansas State Highway Comm. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173 (1962) fortified the general rule that market value of land may not be determined simply by multiplying the estimated quantity of mineral by a unit price. In the case at bar, this error did not occur.

On cross-examination of appellees’ expert, Mr. Barnes, the state asked him if he knew about a 1957 Brazil sale. Barnes testified that “it wasn’t an outright sale . . . The consideration was $278 per acre plus a 5-cent per cubic yard royalty on all rock quarried off the property.” Barnes admitted that he did not know whether that consideration was stated in the deed, but that' he had verified the agreement with both parties to the transaction and that the purchaser thought the property, considering royalty, was costing him $2,000 per acre. On re-direct, Mr. Barnes was asked what the 5-cent royalty meant where an acre of ground had granite one foot deep. Mr. Barnes replied that in the Brazil sale the royalty was 5 cents per cubic yard, which would figure approximately $150 per acre, oné foot deep.

The fact that the Brazil property had sold for $278 per acre plus a 5-cent per cubic yard royalty was already before the jury without objection. The testimony here objected to did nothing more than make a mere calculation which the jury itself could have made. Since no effort was made to capitalize this into market value of either the Brazil property under discussion or the subject property, we fail to see any prejudicial error.

Appellant finally urges that there was no substantial evidence to support the verdict. We do not agree. One of the landowners and two expert witnesses testified for appellees to damages of $40,000, $32,750, and $33,000 to appellees; appellant’s two experts testified to damages of $6,850 and $7,000. The qualifications of all the witnesses were admitted, and the jury had the advantage of detailed examination and cross-examination nf each witness before reaching its verdict.

Affirmed.

Harris, C. J., Brown and Jones, JJ., dissent.


author: Carleton Harris, Chief Justice. Conley Byrd, Justice,

text:
    SEARCY COUNTY v. Howard STEPHENSON
    5-4466
    424 S. W. 2d 369
    Opinion delivered February 12, 1968
    [Rehearing denied March 18, 1968.]

      Joe Purcell, Attorney General; Bon Lcmaston and Ralph G. Brodie, Asst. Atty. Generals and Bill Doshier, Prosecuting Attorney, for appellant.

      Donald Adams, for appellee.
   Carleton Harris, Chief Justice.

Searcy County, Arkansas, appellant herein, has appealed from a judgment of the Circuit Court of Searcy County holding Act 68 of 1965 (Ark. Stat. Ann. § 3-841 [Supp. 1965]) unconstitutional, and granting judgment to Howard Stephenson against said county in the sum of $1,497.00. The facts giving rise to the litigation are as follows:

Stephenson, appellee herein, qualified as an independent candidate for the office of Sheriff and Collector of Searcy County, Arkansas, for the general election to be held in November, 1966. In filing as a candidate, Stephenson paid a fee of $1,500.00 in accordance with the provisions of Act 68 of 1965, which, inter alia, provides as follows:

“Hereafter, any person who shall file as an independent candidate, as authorized by Act No. 352 of 1955 [Ark. Stats. (1947) Sec. 3-836 through 3-840], for election as United States Senator or Congressman, or for any state, district, or county office in this state shall pay a filing fee in the same amount charged by the appropriate officials of the political party in this state charging the greatest filing fee for nomination for such office at the primary election of such political party preceding the general election at which such person is a candidate.”

The highest filing fee at the primary election in Searcy County for the office of Sheriff and Collector was set by the Republican Central Committee, and was in the amount of $1,500.00. Appellee was unsuccessful in his race for this office, and in December, 1966, filed a claim against the County of Searcy for reimbursement of the $1,500.00 filing fee. The then County Judge, sitting as the County Court, allowed the claim, but the claim and order were lost without ever being placed of record. The subsequent county judge held that the claim was not valid, and that the order allowing same should be set aside. In the meantime, the first order had been appealed to the Searcy County Circuit Court. There, as here, appellee contended that Act 68 was void and unconstitutional because it was discriminatory against independent candidates in the general election, the $1,-500.00 fee being required of him, while party nominees for county office were allowed to get their names on the general election ballot by the payment of the sum of $3.00. The Circuit Court held the act unconstitutional for that reason, and for the further reason that it constituted an attempt by the General Assembly to delegate to political parties the authority to fix ballot fees required of candidates for public office in the general election. Thereupon, the court entered its judgment, holding that Stephenson was entitled to recover $1,-497.00.

. The main issue here is whether Searcy County owes Stephenson $1,497.00, and we have held on numerous occasions that we do not pass upon constitutional questions if the litigation can he determined without doing so. In Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S. W. 2d 436, this court said:

“ * * * It is both proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very Us mota. Thus presented and determined, the decision carries a weight with it to which no extra judicial disquisition is entitled. In any case therefore where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed.,,of without considering it, and when consequently a decision upon such question will be unavoidable. Such has been the unvarying practice of this court. See also Martin v. State, 79 Ark. 236, 96 S. W. 372; Sturdivant v. Tollett, 84 Ark. 412, 105 S. W. 1073; Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231, 110 S. W. 1031.”

Here, the question of whether the county is liable can be determined without passing upon the validity of Act 68 of 1965, and in accordance with the above cited cases, we by-pass the constitutional question.

It is asserted by appellant, and we find correctly so, that Mr. Stephenson did not take the proper steps to insure a return of the filing fee, whatever the status of the act in question. Of course, if the statute be constitutional, he could not prevail. Assuming, therefore, for purposes of this discussion only, hut without deciding, that the act is unconstitutional, it will he noted that no complaint was raised hy appellee until after the election had been held, and it had been determined that he was the losing candidate. Then, and then only, did he raise any question about the legality of the amount of the fee. Before paying the $1,500.00, as far as this record reflects, he made no effort to ascertain whether the statute was valid or invalid. It is not disputed that the payment of $1,500.00 was entirely voluntary.

The most that can be said on appellee’s behalf is that the payment was made under a mistake of law. In Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S. W. 2d 375, this court said:

“Appellee seeks to recover voluntary payments made of taxes. This cannot be done. Cooley in The Law of Taxation, Ch. 20 § 1282, gives this rule: ‘It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions of a governing statute regardless of whether the payment is voluntary or compulsory’ (Vol. 3 at p. 2561); and further: ‘Where voluntary payments are not recoverable, it is immaterial that the tax or assessment has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every mam is supposed to know the law, and if he voluntarily makes a payment which the law would not compel¡him to make, he cannot afterwards assign his ignorance of the law as a reason why the State should furnish him with legad remedies to recover it back. * *
“* * * The common law rule governing cases of this kind is laid down in the following cases: Lambron v. County Commissioners, 97 U. S. 181, 24 L. Ed. 926; Union Pacific R. R. Co. v. Dodge County 97 U. S. 541, 25 L. Ed. 196. These cases lay down the following rule: ‘Where a party pays an illegal demand, with, full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary and cannot he recovered back.”

While this case related to a voluntary payment of taxes, the overall principles are set out in the italicized language. Applying the principles to the instant case, Mr. Stephenson was due to know the law; yet he voluntarily made a payment which, according to his present contention, the law would not have compelled him to make. Still, he made it, and he cannot now assert ignorance of the law as a reason why his money should be returned. Further applying the language in Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., supra, if Stephenson paid an illegal demand, he certainly, at that time, had full knowledge of all the facts, i. e., he knew that the $1,500.00 charge to him was based on the fee set in the Republican primary, and he certainly should have been as aware of any alleged illegality before the election — as after it!

Actually, it would seem that there is less reason to refund a fee paid to seek office, than to refund taxes paid under an invalid act, for under the last circumstance, an owner is endeavoring to protect his property from detention or seizure.

Stephenson had two remedies which he could have followed before making the payment. He could have sought a writ of mandamus, directing the proper county official to place his name upon the general election ballot after the payment of $3.00, or he could have acted under provisions of Ark. Stat. Ann. § 34-2502 (Repl. 1962), which states:

“Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute municipal ordinance, contract, ¡or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder. ’ ’

Certainly, the validity of Act 68 of 1965 could have been determined prior to paying the fee.

A rather pertinent argument is also made by appellant to the effect that the filing fee, having been oo-mingled with other county monies in the general fund, cannot now be refunded without an appropriation, and it is argued that there is no constitutional authority to make such an appropriation. It is not necessary that we discuss this point, since the litigation is disposed of under the previous contention.

Reversed.

Byrd, J., concurs.

Conley Byrd, Justice,

concurring. I concur in the result reached, but I think we should determine the constitutional issue since it involves our election laws. In Horn v. White, 225 Ark. 540, 284 S. W. 2d 122 (1955), after holding that Horn could not contest the election because he had not filed his petition to be an independent candidate within the 45 days allowed by Act 241 of 1953, we said:

“II. Election Law Question. Ordinarily an opinion of this Oonrt need go no further than has been, above stated; but we are now constrained to go further because the question posed by the parties (that is, whether Act 211 of 1953 or Act 241 of 1953 is the governing law) relates to an interpretation of certain provisions in our election laws; and it is the policy of this Court to settle such questions for the future guidance of the public.”

I agree with the trial court that Act 68 is.discriminatory and unconstitutional.

       In fact, he did not even pay the amount “under protest.”

       Emphasis supplied.

       Emphasis supplied.

       Emphasis supplied.


author: George Rose Smith, Justice.

text:
    Josephine BERGETZ v. John REPKA et ux
    5-4487
    424 S. W. 2d 367
    Opinion delivered February 12, 1968

      William W. Green and Richard W. Hobbs, for appellant.

      Wootten, Land & Matthews, for appellees.
   George Rose Smith, Justice.

Tliis is an action brought by the appellant, Josephine Bergetz, against the appellees, Mr. and Mrs. John Repka, for personal injuries suffered by Mrs. Bergetz while she was a paying guest at the appellees’ motel on Lake Hamilton. The appellees filed a motion for summary judgment, supported by discovery depositions and answers to interrogatories. The trial court granted the motion, finding that the Repkas “used ordinary and reasonable care for plaintiff’s safety as a guest of defendants’ motel.” The correctness of that ruling is the issue here.

We observe at the outset that a motion for summary judgment is similar to a motion for a directed verdict, in that the testimony must be viewed in the light most favorable to the party resisting the motion. A summary judgment should be entered only if the proof, when so considered, presents no issue for the jury with respect to the defendant’s liability. Van Dalsen v. Inman, 238 Ark. 237, 379 S. W. 2d 261 (1964).

The parties testified with such candor that there are hardly any conflicts in the proof. At about noon on April 6, 1964, Mrs. Bergetz, aged 63, stopped at the motel, accompanied by her foster son and her spitz dog. Mrs. Bepka, in response to an inquiry, assured Mrs. Bergetz that pets were allowed at the motel if kept on leash at all times. Mrs. Bergetz also asked if the Bepkas’had a dog of their own, as she was afraid of strange dogs and would not stay at the motel if a large dog were allowed to run loose. In fact, earlier in the day Mrs. Bergetz had refused to cheek into another motel because a big boxer dog was kept there.

Mrs. Bepka explained that they owned a German shepherd dog, but she told Mrs. Bergetz that the animal was kept penned in an enclosure. She said that the dog was occasionally taken out for exercise, but in such instances her husband stayed with it all ’the time. Upon those assurances Mrs. Bergetz engaged a room and moved into the motel. Mrs. Bepka told her husband about her conversation with their new guest, but despite that fact Bepka released the large German shepherd within an hour or so and allowed it to run at large without supervision.

A little later Mrs. Bergetz, with her dog on its leash, walked down to see the lake. As she was coming back up a flight of stone steps she was suddenly confronted by the German Shepherd, which was standing above her and growling. Mrs. Bergetz testified: “I got deathly scared, I remember, and my dog started to growl. They growled at each other, and I got more scared. And the collar, my dog, he pulled it back, and I fell. That’s all I remember.” In falling down the steps Mrs. Bergetz sustained painful injuries.

We think the proof presented a question of fact for a jury. In negligence cases especially, where the standard of care is that of a reasonably careful person, the issues are often peculiarly appropriate for determination by a jury. Spink v. Mourton, 235 Ark. 919, 362 S. W. 2d 665 (1962). If fair-minded men might honestly differ aboKt the conclusion to be drawn from the testimony, the dispute should be submitted to a jury. Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. 2d 255 (1931).

Repka’s decision to let the large German shepherd ont of its enclosure violated the assurances that his wife had given to Mrs. Bergetz. A jury might fairly conclude that an encounter between that dog and an apparently timid woman leading a smaller dog upon a leash might foreseeably involve an injury to Mrs. Bergetz. “It is not,” as we said in Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S. W. 1199, 32 L.R.A. (n.s.) 825 (1911), “necessary that the particular injury should have been foreseen. In Foster v. Chicago, R. I. & P. Ry. Co., 4 Am. & Eng. Ann. Cas. 150, 127 Iowa 84, the court said: ‘Doubtless, the particular situation might not have been foreseen, hut this was not essential to making out a charge of negligence. Accidents as they occur are seldom foreshadowed; otherwise many would he avoided. If the act or omission is of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the natural consequences which occurred, whether he might have foreseen it or not. In other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen. ’ ’ ’

Here the trial court put some stress upon the absence of evidence that the defendants’ dog was vicious or had ever attacked anyone. Such proof, however, was not essential to the plaintiff’s case. Finley v. Smith, 240 Ark. 323, 399 S. W. 2d 271 (1966). We should add, in remanding the case for further proceedings, that we agree with the trial judge’s conclusion that the defendants’ failure to equip the steps with a railing was not actionable negligence.

Reversed.


author: Paul Ward, Justice.

text:
    SOUTHERN FARM BUREAU CASUALTY INS. CO. v. W. B. ISGRIG Jr. et al
    5-4458
    424 S. W. 2d 164
    Opinion delivered February 12, 1968
    [Rehearing denied March 11, 1968.]

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

      H. Clay Robinson and Harry G. Robinson, for ap-pellees.
   Paul Ward, Justice.

The sole question here is: When did an automobile liability insurance policy, issued by the Southern Farm Bureau Casualty Insurance Company, become effective?

The following pertinent facts are not in dispute.:

(a) Appellant, the above named insurance company, issued its policy to W. B. Isgrig, Jr. (appellee herein) covering an automobile owned by appellee and involved in a collision, causing injury to Regina Lorene Byrd.
(b) The term of the policy was “from the effective date 06/02/65 to 12/02/65 12:01 a.m. ...”
(c) The collision occurred at 10 or 10:15 on the morning of June 2, 1065.

This particular litigation began when appellee filed a complaint in chancery court asking it to declare the policy in force and to coyer the accident, and to direct appellant to defend a lawsuit brought against him by Regina Lorene Byrd.

In its answer appellee admitted issuing the policy as set out above and admitted the date of the accident, but alleged “that said policy of insurance was issued after said accident occurred . . . .”

The trial court found that “said policy was in full force and effect and afforded protection for said accident”.

An unusual set of facts are here involved, and a somewhat unique issue is presented, but we have concluded the case must be reversed.

It is admitted: (a) that the accident happened on June 2', 1965 not later than 10t30 a.m.; (b) that the insurance policy in question had not been actually written or issued at that time, but was issued, paid for and delivered later on the same day of the accident; (c) that all these facts were known to appellees and to the agent of appellant; (d) that no fraud or deception was practiced by either party, and; (e) that the policy contains this clause — “The term of the policy shall be from the effective date 06/02/65 to 12/02/65, 12:01 a.m.

It is our opinion that clause (e) above is not clear or decisive as to the exact hour and minute on June 2, 1965 the policy became “effective”. That being true, it is our further opinion that we can and must consider oral testimony to resolve the ambiguity.

The casé of Kansas City & Memphis Railroad Co. v. Smithson, 113 Ark. 305, 168 S. W. 555 concerned a dispute over the subject matter of a contract, and we said:

“No rule of evidence was violated in permitting ap-pellee to prove this state of facts, for it did not vary or contradict the terms of the contract, but only explained the subject-matter thereof. It clearly establishes a mutual mistake on the part of both participants in the negotiation as to what they were really contracting about, that is to say, the purpose for which the acquired right-of-way was to be used.”

The subject matter here is the “effective date” of the insurance policy, so we now consider the testimony relative to that point.

Mr. Isgrig, Jr. testified, in substance; that on the day of the accident he went to the agency office of appellant and reported it to Joe Rodman, an employee.; that he was told he did not have insurance; that he was sent to see Miss Milligan; that he had applied previously for insurance but did not know whether a policy had been issued since he had not paid for it.

Joe Rodman, appellant’s agent, testified in substance : I talked to appellee on the day of the accident; I asked him if he had coverage, and he said “no” but that he needed coverage for the rest of the time. I told him he could go by the office and “pay his premium and coverage would be in effect then but not at the time of the accident”.

Miss Milligan, a secretary of appellant, testified, in substance: Appellee came to the office on the day of the accident to get the policy; I knew of the accident and “I told him he didn’t have any coverage at the time of the accident”; she further testified: “He said, ‘well he knew that but it was a relief to get some insurance.’ ”

Since the insurance policy itself does not state the exact time it was to take effect but only when it would expire, and in view of the testimony set out above, we are forced to conclude that the weight of the testimony shows the policy was not to be in effect when the accident happened.

The decree is therefore reversed, and the cause of action is dismissd.

FoglemaN, J., not participating.


author: Lyle Brown, Justice.

text:
    Mary T. TARVER et al v. Elena TALIAFERRO et al
    5-4400
    423 S. W. 2d 885
    Opinion delivered February 12, 1968

      Bridges, Young, Matthews & Davis and Carlton Currie, for appellants.

      Coleman, Gcmtt, Ramsey & Cox, for appellees.
   Lyle Brown, Justice.

This case orginated as a suit to quiet title to a 483-acre farm in Lincoln County. Elena Taliaferro, widow of M. M. (Mac) Taliaferro, brought the action for herself and the two minor children, claiming under Mac’s will. The trial court upheld tbe will and cancelled that portion of a “Release Deed and Agreement” executed by Mac which was in conflict with the devise. Mary T. Tarver and James H. (Buck) Taliaferro, Mac’s sister and brother, appeal.

Mrs. Pearl Taliaferro had four living children, M. M. (Mac), James H. (Buck), Sandy, and one daughter, Mrs. Mary T. Tarver. For the sake of brevity, we shall often refer to the parties by their first names, as did most of the witnesses. The Mother owned substantial properties, mostly farms, in Jefferson, Lincoln, and Cleveland Counties. She was advanced in years. The children were all grown and living in the same general area. The family ties were closely intact. The Mother decided to divide a substantial part of her holdings, by deed, among her four children. She deeded three farms, one to each of the sons. The “big farm” in Lincoln County, the only property here involved, was deeded to Mac. The other two farms were approximately one-fourth the size of the “big farm.” In order to more evenly balance the gifts, and at the same time give something of equal value to Mary, the Mother had prepared fifteen interest-bearing notes, each in the sum of $1,000, payable annually. The notes were payable to Mary and were executed by Mac. The deed of the “big farm” to Mac reserved a lien to secure payment of those notes. The Mother had the attorney insert Mary’s name as a grantor in the deed, presumably because she thought it would better secure Mary’s notes.

The deed and notes were executed respectively by the Mother and Mac in an attorney’s office in May 1956. It is not known with certainty whether the deed was then delivered to Mac or whether it was left in the attorney’s office pending Mary’s signature. The Mother, Mac, and the attorney are deceased. In fact, the Mother died within three months. Shortly after her death, and on November 15, Mary signed the deed in the same attorney’s office. It was recorded the same day.

A second instrument of importance now comes into the case. At the time Mary executed the deed to the 483 acres, Mac instructed the attorney (according to Mary) to draft another instrument. It was styled “Release Deed and Agreement.” It was prepared in a matter of days and Mary and Mac returned to the attorney’s office and signed it on November 27, along with Mac’s wife, who relinquished her dower rights. The instrument had two purposes. The first part of the instrument conveyed lands in Jefferson County in which Mac owned a child’s part. The remaining portion of the instrument, which we will refer to as “Agreement,” related to the 483-acre farm in Lincoln 'County. The provisions of the “Agreement” are unique. They provided that should Mac die prior to the retirement of the fifteen one-thousand-dollar notes held by Mary, the unpaid notes would be cancelled and title to the “big farm” would become vested jointly in Mary Tarver and Elena Talia-ferro, Mac’s wife. On the other hand, should Mac live out the fifteen years and retire the notes, title would vest in Mac and Elena, rather than in Mary and Elena.

Mac Taliaferro’s will is the next instrument of significance. For some eight years after the described instruments were executed, Mac lived on and cultivated the “big farm” without incident. He timely paid each note that became due. He executed a will dated April 5, 1965, at a time when he was apparently suffering a terminal illness. Notwithstanding the “Release Deed and Agreement” we have described, Mac bequeathed the farm in trust for the benefit of his wife and children. The trustee was directed to pay one-third of the income to Mac’s wife until her remarriage or death, and the balance to his two children. Upon death or remarriage of the wife, title would vest absolutely in the children. Mac designated his sister, Mary Tarver, as trustee to serve without bond.

Mary Tarver qualified as executrix and trustee and administered the estate for more than a year. Some thirteen .months after her appointment, Mary filed, her first and final accounting. In those instruments she listed the “big farm’.’ and recited that Mac’s estate owned a one-half interest in those lands, not the entire interest recited in his will. The owner of the other interest was not named but it is undisputed that Mary was asserting that she in fact owned the other interest under the terms of the “Release Deed and Agreement.” Her accounting to the court was for a one-half interest.

Mac’s widow, Elena, filed an objection to the accounting and at the same time filed this suit to quiet and confirm title in her husband’s estate. It was the opinion of the trial court that Mary was estopped from claiming any interest in the farm under the terms of the “Agreement” which Mac executed in her favor. Of course it is her contention that since seven of the annual notes had not been paid when Mac died, she therefore became vested with a one-half interest. These factors are advanced in.support of the trial court’s finding:

(a) Mary Tarver’s petition for appointment as executrix recited that the deceased owned the 483-acre tract; (b) with court approval Mary leased the entire acreage in her capacity as executrix; (c) the “Agreement,” if valid, would have passed title directly to Mary and Elena, hence no interest in the land would have been included in Mac’s estate; (d) Mac ignored the “Agreement” when he made his will, and his nomination of Mary as executrix and trustee would indicate a common understanding between Mary and Mac about the status of the “Agreement”; (e) Mary Tarver never surrendered, or tendered, the seven unpaid notes; (f) when Mary filed the estate tax return she showed a one-half interest to be vested in Mac’s estate, contrary to the provision in tlie “Agreement” which, would have vested the title in Mary and Elena jointly; (g) the estate was administered for thirteen months before Mary formally asserted her claim to one-half interest; (h) Mary was acting in a fiduciary capacity and the logical procedure would have been to assert her own rights rather than follow a pattern indicating that she made no claim under the “Agreement”; (i) had Mary been claiming any interest it is unreasonable to believe that she would not have so advised her counsel, whereupon he certainly would have adjusted her course of action; and (j) the attorney was aware of the “Agreement.”

Let it be emphasized that we are not here dealing with the law of estoppel in the strict sense. Estoppel involves the conduct of both parties. The fault of one party induces the other to detrimentally alter his position. The problem at hand may be more likened to a waiver. Specifically, by accepting the trusteeship under the will and proceeding to act, did Mrs. Tarver waive her right to claim under the “Agreement”?

In resolving Mary Tarver’s rights in this premise we are not aware of a controlling case in our own jurisdiction. The basic relationship between the trustee and his beneficiaries is thoroughly discussed in Hardy v. Hardy, 222 Ark. 932, 263 S. W. 2d 690 (1954). As concluded in Hardy, the law demands of the trustee a high standard of loyalty in his fiduciary capacity. The reason for that well accepted rule is stated in Bogert, Trusts, 2d Ed. § 543 (1960), as a recognition that it is practically impossible for the same person to act fairly in two capacities and on behalf of two interests in the same transaction. “If one of the interests involved is that of the trustee personally, selfishness is apt to lead him to give himself an advantage.” Bogert concludes that the courts deem it wiser to invoke a hard and fast rule against such service (absent prior approval of the court) rather than attempt ‘ to separate the harmless. and the harmful by permitting the trustee to justify his representation of two interests.”

Perry, Trusts and Trustees, Vol. 1, § 433 (1929). states the rule thusly:

“Under no circumstances can a trustee claim or set up a claim to the trust property adverse to the cestui que trust. Nor can ho deny his title. If a trustee desires to set up a title to the trust prop-ery in himself, he should refuse "to accept the trust. ’ ’

To the same effect see 90 CJS Trusts § 181; Power v. Jones, 333 P. 2d 34 (Calif. 1959); and Loring, Trustee’s Handbook (5th Ed. 1940) §. 18, stating that if the trustee has an adverse interest when he accepts the trust, that interest cannot be set up against the trust. We hold that Mary is precluded from claiming an interest in the “big farm” under the title purportedly passed to her by the “Agreement.”

The chancellor approved the lien created by the deed from Mrs. Taliaferro and Mary to Mac and represented by the seven notes unpaid at the time of Mac’s death. That finding is not here questioned, and of course we do not disturb it.

Appellant James H. (Buck) Taliaferro contends Mac’s deed was not effective because it was not delivered during the life of the grantor mother. Buck reasons that since Mac’s title fails, the- latter remained in posession as a co-tenant of his brothers and sister, entitling Buck to a one-fourth interest in the property.

With respect to Buck’s contention, any defect in the delivery of the deed would be immaterial because it is clear to us that Mac’s title ripened by adverse possession. Mac’s deed was recorded November 15, 1956, at which time he was occupying the land with his family. There he continued to reside until his death in 1965. During those years a well was put down; the old house was replaced with a new one; abandoned tenant houses were razed and out-buildings were erected; land was cleared; timber was sold; the taxes were paid by Mac; and Mac was commonly recognized in the community as being the owner. Buck lived in the same area and frequently passed the farm. Buck testified that his mother related that she was giving the “big farm” to Mac and the latter was to pay Mary $15,000. Further, he testified that he considered Mac to be the owner. Under all those circumstances it became unnecessary for Mac to specifically exclaim to the world that he was holding adversely. Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96 (1938).

Finally, Buck contends that the “post-mortem execution and delivery of the deed” was concealed from him and that concealment should defeat a claim of adverse possession. There are two answers to that proposition. First, the record does not disclose whether the deed was left in the attorney’s office when Mrs. Talia-ferro executed it, or whether Mac took it home and put it in his safe. Second, there is not a scintilla of evidence that Mac made an intentional concealment. Mac’s good faith is not seriously questioned even by Buck. Intentional concealment is a prerequisite to the sustaining of Buck’s premise. Landman v. Fincher, 196 Ark. 609, 119 S. W. 2d 521 (1938).

Numerous points not here recited are raised by the parties; however, the rulings herein make it unnecessary to resolve the other issues-.

Affirmed.

Harris, C. J., and Byr», J., not participating.


text:
    Larry RAY and Virginia Ray v. Oss FLETCHER and Mildred Fletcher, d/b/a Fletcher Plumbing & Heating Co. et al
    5-4375
    423 S. W. 2d 865
    Opinion delivered February 12, 1968

      George Theil and McCourtney, Atkins & Hunter, for appellants.

      Kirsch, Cathey & Brown and Bay 8. Goodwin, for appellees.
   John A. Fogleman, Justice.

In this case the propriety of the action of the trial court in directing a verdict is questioned.

Appellant^ negotiated the purchase of a house in Paragonld sometime prior to a conveyance to them on March 24, 1966. Appellees were the plumbing su! contractors engaged by the general contractor building the house. A part of their contract was the installation of a- water heater therein. During construction, an LP (liquid petroleum) water heater was erroneously placed in the house by appellees’ subcontractor but was removed and replaced with a natural gas unit before appellants moved into the house. "When the change was made, a vent pipe, which was connected with the LP gas heater and which extended from three to six inches above the ceiling, was found to be unsuitable for the natural gas heater. It was removed and placed on the bathroom floor. Oss Fletcher remarked to someone at the time that he would replace this vent pipe later. There was no gas line from the street to the house at this time.

Appellants moved into the house on March 3, 1966, having started cleaning it on the preceding day. Work was still being done on the house when the Rays moved in, and unidentified workmen were in and out from time to time. The water supply was not turned on until March 5th, after appellant Virginia Ray had called the real estate agent handling the sale of the house. They did not have any hot water until about four weeks later. Appellant Virginia Ray did not know by whom, or under what circumstances, the hot water heater was started or the gas supply turned on, as she discovered that they had hot water one day when she came home from work. She only knew that her husband had put up the necessary deposit and that they had requested that the gas be turned on. There was no other testimony as ta the time or circumstances with reference to the water supply being turned on or the heater started. Appellant Larry Ray did not testify.

On March 5th it was necessary to repair the light in the hall immediately next to the closet housing the water heater and furnace. There were electrical fixtures and electrical wires in the wall between this closet and the kitchen. This wall was burned by the fire.

On May 2nd, Mrs. Bay noticed the smell of smoke and went to the back part of the house where she saw smoke in the bathroom. She opened the closet wherein the water heater and furnace were installed. Seeing smoke and ñames around the vent pipe of the water heater in the ceiling, she called the fire department. Mrs. Bay had been using her electric washing machine, which was adjacent to the closet wall, about 30 minutes before she noticed the fire. As a result of the fire, the ceilings in the bathroom and kitchen were damaged and the walls “smoked.’’ Mrs. Bay didn’t look in the attic to see where the fire was burning, nor did she look there after the fire. After this occurrence, a photograph was made of the wall and ceiling of the closet. This photograph shows two holes in the ceiling, through one of which a metal pipe appears to extend from an object identified as a water heater into the attic. Through this hole appears what seems to be a charred ceiling joist. The other hole is smaller and appears to be nearby and to the viewer’s right of the vent pipe. There is also a hole in the wall behind the vent pipe, near the junction of the wall and ceiling.

The Paragould Fire Chief said that the fire was in the bathroom when the fire department arrived. Upon opening the closet, he looked up and saw that there was no vent of the hot water heater reaching from the ceiling to the roof. The firemen tore some of the sheetrock off the ceiling around the place that appeared to be burned around the vent pipe and tore out some of the insulation in the ceiling. According to the Chief, the hole to the right of the vent was made by the firemen attempting to determine the extent of the fire. He did not know whether the one in the wall was burned there or put there by the firemen. He thought that the furnace was in the attic.

Ted Gardner, a fireman, testified that the vent pipe did not extend more than two or three inches above the ceiling.

Wilson B. Cox, who supervised the repairs after the fire, testified that the attic was burned throughout.

Viewing the evidence in the light most favorable to appellants and considering all inferences favorable to them which might be drawn from the testimony, we find no error in the direction of the verdict. We do not find any evidence making a question of fact for the jury, either as to negligence or proximate cause.

There is no evidence whatever that appellees were responsible for the condition of the hot water tank or its vent. Neither of them nor any of their agents, subcontractors, or employees are shown to have been about the premises at any time after the vent for the LP tank was left on the bathroom floor when there was neither a water supply nor gas supply for the substituted water heater. The appellants moved into the uncompleted house and caused these supplies to be turned on. There is not even any evidence that the vent pipe was connected to the water heater when they moved in or any suggestion of the identity of the person who connected the vent pipe. (Mrs. Ray testified that she did not even notice a vent pipe when they moved in, either on the floor or on the water heater.) Under these circumstances, we do not feel that any reasonable view of the evidence could justify a finding that there was any negligent act or omission on the part of appellees.. From all we can gather from this record, it is .just as likely that appellants caused the vent pipe to be placed on the water heater as it is that appellees did.

Even if we found evidence of negligence to make a jury question, we could not say that there was sufficient evidence, even circumstantial, to show the cause of the fire so as to remove a jury determination from the realm of speculation and conjecture. No one testified as to the function of the vent pipe or that any flames or sparks would ever pass from the burning gas through that pipe. The furnace was located in the vicinity of the water heater and no one testified as to its type, its fuel, or its condition before or after the fire. Electrical wires passed through the wall of the closet, and there had previously been a failure of a light in the adjacent hall which called for repairs of some' sort. Just 30 minutes before the fire, appellee Virginia Ray had used her electric washing machine which was against the wall between the kitchen and the closet. While there were flames around the vent pipe at the ceiling when Mrs. Ray discovered the fire, there was also a hole in the wall, which may, for all the evidence shows, have been the point of origin of the fire. It was necessary that appellants offer evidence by which the jury could say, without speculation or conjecture, that the fire was caused by the deficiency in the vent pipe. Beeves v. Arkansas Louisiana Gas Co., 239 Ark. 646, 391 S. W. 2d 13. Here, the jury would have to speculate as to the origin and cause of the fire.

A second point asserted for reversal is the alleged error of the trial judge in refusing to permit one offered as an expert witness to testify as to the cause of the fire in Paragould.

There are at least two reasons that we cannot hold the court’s exclusion of the testimony of the fire chief as to the cause of the fire to be erroneous. The witness was asked to state an opinion as to the cause of the fire without showing any qualifications or experience to make his opinion admissible, other than the fact .that he had been a fireman for 18 years and chief for three of those years. Later it was shown that he was a full-time employee of a furniture store and only a part-time fireman. The determination of the qualifications of an expert witness to express an opinion is within the discretion of the trial judge, and we will not reverse his decision unless it appears that he abused that discretion. Smith v. State, 243 Ark. 12, 418 S. W. 2d 627. We find no abuse of discretion here. Furthermore, we cannot consider this point because there was no offer of proof or other showing of what the testimony of the witness would have been. Barnes v. Young, 238 Ark. 484, 382 S. W. 2d 580. Thus, it is unnecessary that we determine whether or not an expert found to have been properly qualified should have been permitted to express an opinion as to the cause of the fire under the facts and circumstances of this case.

The judgment is affirmed.