author: Lee Seamster, Cbief Justice.

text:
    Andrews v. State.
    4816
    282 S. W. 2d 592
    Opinion delivered October 10, 1955.

      W. S. Atkins, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   Lee Seamster, Cbief Justice.

On information, appellant was charged with the crime of arson. It was alleged that appellant did unlawfully, maliciously and feloniously set fire to and cause to be burned a nursing home, the property of Mrs. Jewell Massengill, located at 803 East Division Street in the City of Hope, Arkansas. Upon trial in the Hempstead Circuit Court appellant was convicted of the crime of arson and punishment was fixed at two years in the State Penitentiary. From the judgment on this verdict comes this appeal.

The appellant lists three points for reversal of the trial court’s verdict, they are: (1) insufficiency of the evidence; (2) the statement of the court to the jury with respect to suspended sentence; and, (3) the court grossly abused its discretion in not suspending sentence in keeping with its statement to the jury.

Initially, the appellant contends there is insufficient corroborative evidence to sustain his conviction of the crime of arson. He alleges that the testimony of record, when given its strongest force for the State, is only sufficient to raise a suspicion of guilt. It is further alleged that the testimony is as consistent with appellant’s innocence as with his guilt and, therefore, is not sufficient corroboration of the accomplices.

In this case, the State relied heavily upon the testimony of the accomplices. They were, Mrs. Jewell Massengill, the owner of the nursing home that was destroyed by fire, her son Bob and Sam Sampson, an employee of Mrs. Massengill’s.

Mrs. Jewell Massengill testified as follows: that she and appellant discussed the burning of her nursing home sometime in September of 1954, when he came to hex-home in response to her request, and that appellant said he and his company were in that business; that appellant told her that he would do the job for a price of $3,500— $750 of this amount to be paid in advance as a down payment ; that she saw appellant several times after the first meeting and upon inquiry she was told by appellant that she could take some of the fuimiture out of the house before the burning; that she later took some of the furniture out of the nursing home and stored it at Prescott, Arkansas; that she went to Texarkana, Ai’kansas, with the appellant to look at some buildings that had been burned, to prove to her that it could be done; that she and appellant made a trip to Texarkana about two or three weeks before the fire, they looked at a tourist court; that she issued a $750 check, payable to cash, cashed it at First National Bank of Hope and gave the money to the appellant. She also testified that she had in force $25,000 worth of fire insurance on the nursing-home and contents, which she had obtained from Leonard Ellis, and she purchased an additional $15,000 fire insurance policy from the appellant on the home and contents shortly before the fire.

Bob Massengill testified to the following: that he was the son of Mrs. Jewell Massengill and that he knew about the storage of his mother’s furniture in Mrs. Dudney’s place in Prescott, Arkansas; that he and his brother-in-law moved said furniture to Weatherford, Texas; that Sam Sampson helped them move the furniture and that the furniture was moved at night; that he knew about the fire and the reason for hiding the furniture.

Sam Sampson, an employee of Mrs. Massengill’s, testified to the following: that he took the furniture to Mrs. Dudney’s place in Prescott, Arkansas; that he had made a confession to police officers to the effect that he knew about the fire and that he was under indictment and was awaiting trial; that he recognized the appellant and that he had seen the appellant several times in the past when he was visiting Mrs. Massengill at her home.

Mrs. Callie Dudney, a witness, testified to- the following: that Mrs. Massengill stored some of her household goods in her house shortly before the fire and that appellant visited her home about three times after the fire; that at one time when shown the household goods of Mrs. Massengill’s, he stated, “I told her she could move some of it, but I didn’t tell her she could move all of it ”; that appellant said that he thought she had better sense than to move that much; that after the fire the appellant returned to have her sign a statement that his lawyer had prepared, when she refused he returned again at a later date to try to secure from her a written statement, in her own words, to the effect that the appellant had nothing to do with the fire. She also testified that appellant in the past had tried to sell her a fire insurance policy and a box of matches; that she went to Texarkana with the appellant and Mrs. Massengill to look at a tourist court which Mrs. Massengill wanted her to operate if she bought it, hut she told her that she couldn’t because of her own business.

Mr. Herman Morris, a witness, testified to the following : that he owned and operated the Morris Motel, a tourist court on East 9th Street in Texarkana; that the appellant and two women were in his place of business in October, 1954, and the appellant held himself out as a prospective buyer for the Motel; that he recognized Mrs. Massengill as one of the women and that she was going to help appellant buy the Motel or was interested in forming a partnership with appellant for the purchase of the Motel; that he told them that he wanted $75,000 for the Motel — $35,000 of this sum as a down payment.

Mrs. Herman Morris testified that appellant was at the Motel about September 22, 1954, and said that he liked the place and was going to try to make a deal for the purchase of it. She also stated that she saw appellant and the two women in the Motel in October, 1954, when they talked to her husband.

Lyle McMahan, a neighbor of the appellant, testified that before the fire the appellant tried to sell him an insurance policy on some of his trucks and that he replied that he already had them insured for more than they were worth; that when appellant told him that he could get a man to burn the trucks, he replied that he was not interested. He further testified that appellant saw him some two or three days later and asked him if he had changed his mind, he stated that he had not changed his mind.

Mr. Leonard Ellis, a witness, testified that the fair market value of the nursing home before the fire was $18,000 and the contents were worth about $10,000.

The appellant admitted selling the additional insurance to Mrs. Massengill on the nursing home before the fire and also admitted that he did not inform the insurance adjustor about the household goods that were stored in Prescott.

We think there is sufficient corroboration of the accomplices’ testimony to sustain the conviction. The rule is laid down in Casteel v. State, 205 Ark. 82, 167 S. W. 2d 634, as follows: “This Court in the recent case of Fleeman and Williams v. State, 204 Ark. 772, 165 S. W. 2d 62, with reference to this section of the Statute, reiterates the long established rule in this language: ‘The rule in this State is that the corroborating evidence need only tend to connect the defendant with the commission of the offense, and not that such evidence of itself be sufficient, and where there is substantial corroborating evidence tending to connect the defendant with the offense, its sufficiency is a question for the jury, together with that of the accomplice. Middleton v. State, 162 Ark. 530, 258 S. W. 995; Mullen v. State, 193 Ark. 648, 102 S. W. 2d 82; Smith v. State, 199 Ark. 900, 136 S. W. 2d 673; McDougal v. State, 202 Ark. 936, 154 S. W. 2d 810.’ See also, Powell v. State, 177 Ark. 938, 9 S. W. 2d 583.”

The appellant’s objection to the Court’s instructions to the jury with reference to suspended sentence is based upon the following statements:

“BY THE COURT: You want to know if you have authority to recommend a suspended sentence; I will answer that, members of the jury, this way: You certainly have the authority. I would, however, caution you that no juror should interpret that to mean that you are being encouraged to compromise on the question of guilt or innocence. The question of a man’s guilt or innocence is based solely and exclusively upon the law given you by the Court and the evidence gleaned from the witness stand. Does that answer your question, or do you have any additional questions?

“MR. KENT: If anybody’s got a question, speak up.

“MR. ATKINS: If the Court please, I would like, as the attorney for the defendant, to ask the Court to further instruct the jury that by recommending the suspended sentence, that the Court is in no way bound to give a suspended sentence.

“BY THE COURT: Yes, the Court would not intentionally say anything at any step in this proceeding, and particularly now, to lead you to believe that the Court wants anybody to compromise their convictions, and please be advised that the Court is not bound by your recommendation, one way or the other. Thus far, I believe I have followed jury recommendations on matters of clemency, but the Court is not saying that it will or that it will not; the Court will simply say to you that you have a perfect right to make this recommendation. If you so desire, the Court will be glad to receive it.”

We feel that the above italicized statements are objectionable. The only statement a Court should make to a jury about a suspended sentence is: That the jury has the right to recommend a suspended sentence for any defendant they convict, if they determine such recommendation is justified. That the Court is not bound by such recommendation to suspend the sentence and may or may not do so. The whole question as to whether a sentence of a convicted person will be suspended, or not, is to be finally determined by the Court trying the case. No statement should be made by the Court that might tend to lead the jury to believe a suspended sentence would be granted if requested.

No objections were made by the appellant at the time the statements were made. This Court in the case of Pendleton v. State, 211 Ark. 1054, 204 S. W. 2d 559, and in Filtingberger v. State, 216 Ark. 754, 227 S. W. 2d 443, upheld the trial court in similar cases where no objections were made in the trial court. The Ark. Statutes, § 43-2813, 1947, requires the parole officer, when requested by the Circuit Judge — of any Judicial Circuit, to investigate the past history of any persons applying for suspended sentence or other clemency and to make available to the Court his findings.

Judgment affirmed.

Justice George Rose Smith concurs.


source: Caselaw Access Project

author: J. Seaborn Holt, J.

license: Public Domain

text:
    Roller v. State.
    4820
    283 S. W. 2d 150
    Opinion delivered October 10, 1955.
    [Rehearing denied November 21, 1955.]

      John G. Sheffield, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   J. Seaborn Holt, J.

December 21, 1954, appellant was charged by information with the crime of manslaughter as follows: “The said defendant on the 18th day of December, 1954, in Phillips County, Arkansas, did unlawfully, and feloniously operate his automobile upon the highways in a negligent and careless manner with willful, wanton and reckless disregard for the safety of others using said highways and did strike one Neville Hollowell and inflict upon him severe injuries from which said injuries he died.”

A jury trial, May 9, 1955, resulted in the verdict of guilty of the crime as charged and his punishment fixed at a term of one year in the penitentiary. Prom the judgment is this appeal.

Appellant relies for reversal on the single ground that the evidence was not sufficient to support the verdict. We do not agree.

The evidence viewed in the light most favorable to the State was that about 5:00 o’clock p. m. December 18, 1954, Sergeant Galloway, of the State Police, went to the scene of a collision of automobiles at a point near a bridge on the paved highway which runs east and west between Helena and Barton, Arkansas. On arrival he testified that he found one car off the highway in the ditch and another car involved was on the highway in the south traffic lane headed east. The north lane was clear. Officer Galloway directed Otto Yonkendal, father of Paul Yonkendal- — -who was involved in the first collision, to go across the east end of the bridge to flag oncoming traffic. Meanwhile Galloway, Junior Phillips and Neville Hollowell were pushing the damaged car off the highway. The first collision that occurred, before the officers reached the scene, happened about 235 feet from the east end of the bridge. Before Otto Yonkendal had reached the bridge he heard appellant’s car coming and called to Galloway, “Dwight, look out, here he comes, ’ ’ and he tried to slow appellant down with a flashlight, but appellant made no attempt to stop but “plowed into” the car they were pushing off the highway. The pavement was dry and there were no skid marks following this collision. Officer Galloway was struck by appellant’s car and knocked about 20 feet into a ditch at the side. When he got up he saw Phillips had been knocked down the road and the little Hollowell boy (who later died from his injuries) was lying unconcious with his left leg severed below the knee. Appellant, after he got out of his car, was staggering around in a drunken condition. Galloway said he smelled whiskey on appellant, who frankly admitted he had consumed about two-thirds of a bottle of whiskey that afternoon and that he was going between 50 and 55 miles per hour when the mishap occurred. Appellant further testified:

“A. . . . there were people standing around the ears.

“Q. Weren’t you looking at the car before you hit it?

“A. No, sir, I saw some people around it, but it happened so fast I couldn’t tell about it.

“Q. If the road was, as you say, wet and it was just dusk dark and your lights didn’t do much good, do you think you were using proper precautions along there under those circumstances'?

“A. No, sir, I guess I wasn’t.”

It was not dark at the time. The testimony of other witnesses tended to corroborate Officer Galloway.

Appellant testified that he was not drunk, that the road was slick, that he applied his brakes in an effort to avoid the collision but went into a skid and could not stop. As pointed out there was evidence on the part of the State that the pavement was dry and that there were no signs of skid marks.

The section of the statute under which appellant was convicted reads:

Stats. § 41-2209, Ark. Stats. 1947 — -“Involuntary manslaughter defined. — -If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter. Provided further that when the death of any person ensues within one [1] year as a proximate result of injury received by the driving of any vehicle in reckless, willful or wanton disregard of the safety of others, the person so operating such vehicle shall be deemed guilty of involuntary manslaughter. [Rev. Stat., ch. 44, div. 3, art. 2, § 3; C. & M. Dig., § 2356; Pope’s Dig., § 2982; Acts 1947, No. 169, § 1, p. 397.] ”

We hold that there was ample evidence to support the State’s contention that appellant was at the time of collision driving his car in “a reckless, willful, wanton disregard of the safety of others” and that the jury was warranted in so finding and in rendering a verdict of guilty. See Campbell v. State, 215 Ark. 785, 223 S. W. 2d 505.

There is no complaint as to any of the instructions. Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Justice.

text:
    United Loan & Investment Company v. Nunez.
    5-705
    282 S. W. 2d 595
    Opinion delivered October 10, 1955.

      Bailey, Warren & Bullion, for appellant.

      George W. Shepherd and Robert D. Lee, for appellee.
   Ed. F. McFaddin, Justice.

From a decree quieting appellees’ title, there is this appeal; and the question is whether appellant’s judgment is a lien on appellees’ property.

Mr. and Mrs. Nunez, who owned their homestead in Pulaski County as tenants by entirety, decided in 1954 to transfer the title to Mrs. Nunez. Their attorney advised them to deed the property to a third person, who would then convey the title to Mrs. Nunez. For such third person the attorney selected his friend, Mr. Kelly, who was not even acquainted with Mr. and Mrs. Nunez. Mr. Kelly signed and acknowledged a deed with grantee and date left blank; and this was exhibited to Mr. and Mrs. Nunez before they executed to Kelly their entirety deed, which was promptly recorded. Later it was learned that the appellant, United Loan and Investment Company (hereinafter called “United’’), had an unsatisfied judgment rendered against Kelly in 1953. When this ivas discovered, the Kelly deed previously signed and acknowledged, as aforesaid, was dated and Mr. and Mrs. Nunez were named as grantees and the deed was recorded.

Thereupon Mr. and Mrs. Nunez brought this suit to remove the judgment of United as a cloud on the title of the Nunez homestead. United claimed its judgment to be a valid lien, since the record showed that the deed from Nunez to Kelly was dated and recorded in August, 1954, and the deed from Kelly to Nunez was dated and recorded in October, 1954. The Chancery Court held that United’s judgment was only a cloud on the Nunez title and cancelled such cloud. This appeal ensued.

I. Evidence as to Consideration. Appellant claims that the Nunez evidence was designed to show the entire absence of any consideration paid by Kelly to Nunez and was inadmissible, since evidence may show real consideration but not entire absence of consideration; and appellant cites such cases as Leake v. Garrett, 167 Ark. 415, 268 S. W. 608; Tandy v. Smith, 173 Ark. 828, 293 S. W. 735; Hampton v. Haneline, 125 Ark. 441, 189 S. W. 40; and Moncrief v. Miller, 178 Ark. 1069, 14 S. W. 2d 227. The holding of these cases is not applicable. Here, it was not attempted to show entire absence of consideration; rather, the offered evidence was designed to show what the actual consideration was — i. e., that Kelly was a conduit of title or a mere trustee and never a bona fide or beneficial owner of the property. The recital of consideration in a deed may be varied by parol for every purpose except to show that the deed was without consideration. Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; Mewes v. Mewes, 116 Ark. 155, 172 S. W. 853; and other cases collected in West’s Ark. Digest, “Evidence,” § 419 (2).

Our judgment lien statute is § 29-130, Ark. Stats.; and says that a judgment is a lien on the land “owned by the defendant.” In Howes v. King, 127 Ark. 511, 192 S. W. 883, property had been deeded to F. R. LaCroix, against whom there was a judgment lien; but it was shown that LaCroix was a mere conduit in the title, just as Kelly was in the case at bar. In holding that the judgment against LaCroix was not a lien on the land conveyed to and by him, Mr. Justice Hart, speaking for this Court, said:

£ £ There was no moment of time when LaCroix owned or held the lands free from the condition, nor when he could have voluntarily conveyed them except subject to the condition. This rule is based on principles of justice and public policy and can work no hardship to the judgment-creditor ; for as we have already seen the lien of the judgment is in all cases limited to the actual interest which the judgment-debtor has in the estate. The judgment-creditor having parted with nothing on the strength of these conveyances, it would be highly inequitable to permit his judgment to be satisfied out of what in fact was the property of Howes. In support of the rule, see Kent’s Commentaries, 14 Ed. vol. 4, star pages 173 and 174; Thornton v. Findley, 97 Ark. 432; Murray Co. v. Satterfield, 125 Ark. 85; Western Tie & Timber Co. v. Campbell, 113 Ark. 570, Ann. Cas. 1916C, 943, and case note at 949.”

In accordance with the foregoing case, we hold that the judgment of United against Kelly was not a lien on the Nunez property under the circumstances here existing.

II. Fraudulent Conveyance. Appellant says that Mr. and Mrs. Nunez were conveying their property to Kelly to discourage a possible lawsuit against Mr. Nunez; and therefore they were not entitled to any aid from equity to remove a cloud from their title. The evidence did not show the Nunez deed of the homestead was a “fraudulent conveyance,” as such words are used in our cases. Furthermore, Mr. Nunez could have made direct conveyance to his wife. See Ark. Stats., § 50-413. The fact, that their attorney chose to use Kelly as the conduit of title, cannot give a lien to United. Such is the effect of our holding in Howes v. King, supra.

Affirmed.

       Two comparatively recent cases involving this Statute are Tolley v. Wilson, 212 Ark. 163, 205 S. W. 2d 177; and Fears v. Futrell, 216 Ark. 122, 224 S. W. 2d 362.

       Some oí the cases, citing Howes v. King, are Snow Bros. et al. v. Ellis, 180 Ark. 238, 21 S. W. 2d 162; 1st National Bank v. Meriwether, 188 Ark. 642, 67 S. W. 2d 599; Carroll v. Evans, 190 Ark. 511, 79 S. W. 2d 425; and Citizens Bank & Trust Co. v. Garrott, 192 Ark. 599, 93 S. W. 2d 319.

       For cases on fraudulent conveyances and the validity of the transaction between the parties, see those collected in West’s Arkansas Digest, “Fraudulent Conveyances,” Key No. 172.


author: Minor W. Millwee, Justice.

text:
    West v. Smith.
    5-633
    282 S. W. 2d 597
    Opinion delivered October 10, 1955.

      Melvin E. Mayfield, Wayne Jewell and Surrey E. Gilliam, for appellant.

      Claude E. Love and Spencer & Spencer, for appellee.
   Minor W. Millwee, Justice.

Appellee, Charles Smith, was injured while working as a carpenter in the construction of two houses on a 70-acre subdivision owned and being developed by appellant, J. A. West, just outside the city of El Dorado, Arkansas. Smith filed a claim for compensation before the Workmen’s Compensation Commission against the appellant and appellee, W. M. Holder. It was Smith’s contention that Holder was either a foreman-employee on a construction job carried on by appellant, J. A. West, and therefore he (Smith) was an employee of West, or that Holder was an independent contractor, in which event Smith was the employee of Holder. Both West and Holder contended that Smith was the employee of the other.

Hearings before a single commissioner and the full Commission resulted in an award of compensation in favor of Smith against appellant based on a finding as follows: “It is clear from the evidence, and there appears to- be no dispute, that J. A. West was engaged in the business of building houses for sale. The Commission is of the opinion that the status of W. M. Holder in building the houses for J. A. West was that of a foreman for West who retained and exercised the right of control and supervision over the work and the men doing it; that the exercise of this right of control was such as to create the relationship of master and servant between J. A. West and claimant, thus making claimant an employee of J. A. West on this particular construction job.” On appeal to Circuit Court, the Commission’s award was affirmed.

The only issue before this court is the sufficiency of the evidence to support the Commission’s finding that Holder was the foreman-employee of appellant and not an independent contractor. In determining this issue, we view the evidence in its strongest light in favor of the finding of the Commission. Hughes v. Tapley, Administratrix, 206 Ark. 739, 177 S. W. 2d 429. While the question of the sufficiency of the evidence to support the findings of fact made by the Commission is one of law, such findings will not be disturbed on appeal if supported by any substantial evidence. See Parker Stave Company v. Hines, 209 Ark. 438, 190 S. W. 2d 620, where we said: ‘ ‘ In determining whether one is an employee or an independent contractor, the Compensation Act is to be given a liberal construction in favor of the workman, and any doubt is to be resolved in favor of his status as an employee rather than an independent contractor. Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 674; 71 C. J., p. 449.

“No hard and fast rule can be formulated to determine whether a workman is an employee or an independent contractor, and each case must be determined upon its own peculiar facts. In the ease of Irvan v. Bounds, supra, the decisions from other jurisdictions on this question are reviewed, and the various rules employed by other courts in determining the relationship are discussed. There are many well-recognized indicia of the status of the relationship, but the presence of one or more of them in a case is not necessarily conclusive of this status. In 27 Am. Jur. 486, it is said: ‘The most important test, in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Whether one is an independent contractor depends upon the extent to which he is, in fact, independent in performing the work. Broadly stated, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor.’ ” See also, Brooks, Inc., v. Claywell, 215 Ark. 913, 224 S. W. 2d 37.

According to the evidence presented by appellees, the appellant is a partner in the ownership and operation of several department stores in El Dorado and other Arkansas cities. He was also engaged in the development of the residential subdivision in question and had built several houses for sale therein prior to construction of the two houses on which Holder and Smith worked. The construction of these two houses was begun under an oral agreement between appellant and Holder whereby the latter and other carpenters employed by him were to do all the carpenter work. Under the agreement, Holder was to be paid $10.00 per day, or $50.00 per 5-day week, while the work was in progress and upon completion of the job was also to draw the difference between the total cost of all carpenter work and the snm of $4,300, if any. Thus, if Holder was able to keep the total cost of all carpenter labor under $4,300, he was to receive such differential as additional compensation for his own work. Holder had no money and appellant was to furnish all materials and advance all moneys necessary to pay all carpenter labor each week upon weekly reports by Holder as “foreman,” setting out the number of hours and the hourly wage paid each carpenter on the job.

Appellee Smith was employed as one of the carpenters on the job and had worked about a week when he was injured. A few days prior to the injury, appellant came out to the job and directed Smith to get another man from Holder and dig some percolation test holes over the entire subdivision. After the two men had been engaged in this work for a short time, appellant telephoned Holder and told him to call the two men back and put them back to work on the houses and this was done.

Neither appellant nor Holder carried workmen’s compensation insurance at the time of the injury, but, shortly thereafter appellant directed Holder to take out such insurance and furnished him the cash with which to do so. Subsequent to the injury, appellant also instructed Holder to withhold and pay social security and withholding taxes on the wages paid Smith. Smith and the other carpenters under Holder’s supervision were paid by funds advanced by West to Holder each week. At times these payments were made in one of the West Brothers department stores in El Dorado.

Shortly after Smith’s injury, Holder left to take a more lucrative job in Ohio. By agreement with appellant, Holder’s son, Grover, took his father’s place as foreman of the construction job. Two days later, appellant gave Grover Holder the money to pay off the other carpenters and instructed him to discharge them, and this was done. Thereafter, Grover Holder did some carpenter work for which he was paid $10.00 per day as previously, but neither of the houses had been completed at the time of the final hearing before the Commission. After Holder returned from Ohio, appellant requested that he sign a back-dated written contract, but Holder declined to do so. Holder did not have a contractor’s license at the time of the oral agreement and injury. He had previously done construction work for appellant under written contracts and at a time when he had such a license.

In our opinion, the foregoing evidence was substantial and sufficient to sustain the Commission’s finding that the relationship of employer and employee existed between appellant and Smith at the time of his injury. While certain phases of the oral agreement tend to show that Holder was an independent contractor, the fact that appellant actually exercised some control over Smith in the doing of the work, together with the further fact that appellant could and did discharge the workmen employed by Holder, without liability, indicate the relationship of employer and employee. Other indicia of such relationship are the apparent financial irresponsibility of Holder and the furnishing of all materials and moneys with which to pay wages of all the workmen by appellant. See Annotations, 75 A. L. R. 725, 20 A. L. R. 751. These facts are sufficient to sustain the conclusion that appellant reserved a degree of control over the work of Holder incompatible with that usually enjoyed by an independent contractor and consistent with the relationship of employer and employee. The judgment of the Circuit Court is accordingly affirmed.


author: George Rose Smith, J.

text:
    Fike v. Newlin.
    5-651
    282 S. W. 2d 604
    Opinion delivered October 10, 1955.

      Rex W. Perhins, Suzanne Lighton and E. J. Ball, for appellant.

      Pearson & Pearson, for appellee.
   George Rose Smith, J.

This is a suit by the appellees, Newlin and Black, to obtain compensation for their services in finding a purchaser for a tourist court owned bj^ the appellant and her husband. The principal defense is that the appellees failed to produce a buyer willing to take the property on terms acceptable to the Fikes. The trial court, sitting without a jury, entered judgment for the appellees for $1,500.

In 1953 Mr. a'nd Mrs. Fike listed their property with Newlin and Black, licensed dealers in real estate. Late in July the Fikes were taken by the appellees to Bolivar, Missouri, to inspect a business building that was owned by Eugene and Louella Hinton and that was also listed for sale with Black. At that time Black understood (erroneously, as it turned out) that the Hintons’ property was subject to a $12,500 mortgage, payable $1,000 annually, and he so informed the Fikes.

On July 30 Mrs. Fikes signed a form of offer and acceptance by which the Fikes ’ equity in the tourist court was offered for the Hintons ’ equity in the Missouri property. Hinton came to Fayetteville on August 1, inspected the tourist court, discussed the proposed trade with the Fikes, and signed, the contract that Mrs. Fike had executed. August 15 was fixed as the date for the exchange of deeds. The parties promptly submitted their respective abstracts of title for examination. There is testimony by the appellees that after the meeting of August 1 the Fikes seemed happy with the deal and, in preparation for a surrender of possession, removed some personal property from the tourist court to their home.

On August 14 Mr. and Mrs. Hinton arrived in Fayetteville with the expectation of completing the exchange of lands on the following day. But when the Hintons, together with Black, called at the tourist court they were informed by Mrs. Fike that she had decided to “back out” of the transaction. The appellees later brought this action for their commission.

It is immaterial that the contract for the exchange of the properties was not signed by Mr. Fike or Mrs. Hinton, as a real estate broker earns his commission by producing a buyer ready, willing, and able to take the property on the terms fixed by the seller. It is not necessary that an enforceable contract be executed. Dillinger v. Lee, 158 Ark. 374, 250 S. W. 332; Boyles v. Knox, 211 Ark. 426, 200 S. W. 2d 966. The appellant contends, however, that she and her husband were originally given incorrect information about the Hintons’ mortgage and did not learn until the abstract was examined that the encumbrance was substantially larger than it had been represented to be. It is argued that the Fikes did not agree to assume the larger indebtedness, and therefore the appellees failed to produce a purchaser willing to take the tourist court on terms acceptable to the sellers.

There is substantial evidence to support the trial court’s rejection of this argument. It is true that when Black first showed the Missouri property to the Fikes he was mistaken in saying that the mortgage was for $12,500, payable $1,000 a year. For, unknown to Black, the Hintons had borrowed an additional $2,500, and as refinanced the debt was payable at the rate of $750 every six months. But Black and Hinton testified that the true terms of the mortgage were explained by Hinton during his discussion with the Fikes on August 1. From this testimony the court may have concluded that the appellant and her husband were fully informed on August 1 and still went ahead with preparations for the completion of the exchange. Pointing to the same conclusion is the fact that, according to the testimony of all five persons who were present when Mrs. Fike backed out of the transaction on August 14, she did not then mention the increased mortgage as her reason for withdrawing.

A secondary contention is that Black forfeited his right to compensation by giving his principals incorrect information about the Hinton mortgage. The cases relied upon, such as Bennett v. Thompson, 126 Ark. 61, 189 S. W. 363, L.R.A. 1917B, 919, and Carnahan v. Lyman Real Estate Co., 170 Ark. 519, 280 S. W. 5, are not in point. They merely state the rule that a broker who practices fraud upon his principal is not entitled to compensation. Here Black’s misstatement was apparently made in good faith, and after learning the truth the appellant indicated by her conduct that she was nevertheless willing to go forward with the exchange of lands.

Affirmed.

Seamster, C. J., not participating.


author: Ward, J.

text:
    Welch v. Welch.
    5-692
    282 S. W. 2d 600
    Opinion delivered October 10, 1955.

      Stir rey E. Gilliam and Melvin E. Mayfield, for appellant.

      Harry C. Steinberg, for appellee.
   Ward, J.

We are concerned here with when and nnder what circumstances a wife is entitled to (a) maintenance and (b) an attorney fee in a divorce proceeding instituted by her husband.

Pleadings. On November 20, 1953 appellee, Grady Welch, filed a petition for divorce against appellant, his wife, alleging indignities in that she continually fussed and argued, displayed ill temper because he would not continually take her to spend most of her time at her parents’ home, and finally deliberately left his home and went to her parents.

On December 3, 1953, appellant filed a motion for attorney fees, suit money and alimony, stating: She had no estate or money to employ counsel to defend the action or to pay court costs and. other expenses, and that appellee was earning about $300 per month. She asked for $25 a week as temporary alimony and an attorney fee.

On July 1, 1954, appellant filed an answer to the divorce suit, without waiving the motion she filed on December 3, 1953, consisting of a general denial and also an allegation that her husband ordered her to leave home and refused to allow her to return, and prayed for separate maintenance.

On July 8, 1954, on his own motion, appellee’s petition for divorce was dismissed without prejudice, and on December 8, 1954 [the day of the hearing] he filed a general denial to appellant’s petition for separate maintenance.

Testimony. The testimony, in substance, shows: The parties were married October 1, 1953 and separated five or six weeks later. Shortly before they were married appellee’s mother died, and upon being married they went to the home of appellee’s father to live with him. At the time of the marriage appellant’s mother was sick. Appellant says her mother was “real sick,” and in the worst stage of diabetes, that she tried to get the wedding postponed but appellee promised to take her once a week (on Sundays) to visit her mother who lived at Smackover — a distance of some 20 miles. During the few weeks they lived together appellee took appellant to see her mother each Sunday, except on one occasion when she voluntarily stayed at home for a family reunion.

Although there was some friction between appellant and her father-in-law over cooking and housekeeping, it seems that the only cause of trouble in the marriage relations was the matter of appellant making weekly visits to her sick mother.

The first difficulty arose three weeks after the marraige when, after returning home from a Sunday visit, appellee told his wife (she says) that he was going to quit taking her to see her mother. This apparently made appellant angry for she left for two or three days but then returned" to her husband. A similar incident occurred after again living together two or three weeks. Appellant says that when they got home (from a visit to her mother) she went to her room when appellee walked in and said: “Buby, I want you to leave. I can’t see any way for us to get along.” Thereupon her husband and his father took her, together with her clothes, to her mother’s home. Appellant later made an effort to effect a reconciliation and she says she is now willing to resume marital relations, hut appellee refused and still refuses to do so.

Appellee’s version of the final separation varies only slightly from that of his wife. He says she took offense (at her mother’s home) when he wanted to leave in time to do the chores at his home, and that she didn’t say a word on the way back; that when they arrived he asked her if she was going to cook supper and she replied: “No, I am not cooking supper on Sunday evening”; that later he went into the bedroom where she was and said: “Buby, don’t look like we can get along, you won’t even try to cooperate. If you want to go and stay with your mother, go on up there and stay”; that she said: “Will you carry me tonight” and he said “I sure will.” Appellee admits that the only difference they had was about going to her mother’s. He filed suit for divorce five days after the separation. Other witnesses testified in corroboration of many of the facts above set forth but not as to what transpired at the time of the final separation.

Appellee works for the Union County Highway Department for $10 a day when the weather permits. He owns no property hut has about $200 in the bank. He had an operation in the summer of 1954 and wasn’t able to work for four months. Appellant has worked at odd jobs before and after her marriage but, as the result of an old back injury, is unable to do work that requires her to stand, and she has no money or property.

After hearing the testimony the Chancellor dismissed appellant’s petition for separate maintenance and refused to allow her an attorney fee. He apparently took the view that she had not met the burden of proving her husband caused her to leave his home or refused to let her remain there, and, particularly, that her testimony was not corroborated.

Appellee contends that the Chancellor’s finding should be sustained under the well known rule that it will stand unless against the weight of the evidence. However, we are of the opinion that this is a case where the rule is not controlling, and that the decree must be reversed.

(a) Separate Maintenance. Appellant’s suit for separate maintenance, unlike a suit for divorce, does not necessarily require corroborating testimony. See Wood v. Wood, 140 Ark. 361, 215 S. W. 681. Where, as here, the husband files for a divorce and the wife asks for separate maintenance, it is not necessary for the wife to show merit. See Jelks v. Jelks, 207 Ark. 475, 181 S. W. 2d 235.

In order for appellant to be entitled to maintenance here it was not incumbent upon her to show appellee forced her to leave. On the other hand, before appellee could defeat her claim it was incumbent on him to show either that she deserted him without just or reasonable cause or that he left her for such cause. Reasonable cause was defined in Rie v. Rie, 34 Ark. 37, at page 41, in this language:

“It has been held, subject to some qualifications, that reasonable cause, which, within the divorce statutes, will justify one of the married parties in abandoning the other, must be such conduct as could be made the foundation of a judicial proceeding for divorce.”

In Bonner v. Bonner, 204 Ark. 1006, 166 S. W. 2d 254, this court said:

“It was and is the duty of appellant to support his wife according to the station in which they live. This duty would not rest upon him if he were entitled to a divorce, but it does rest upon him as long as they are married unless she had abandoned him without just cause. He is as much to blame as she for the separation, and it is his bonnden duty to support her as long as the bonds of matrimony exist between them. ’ ’

The record does not support the conclusion that appellant abandoned appellee without good cause, but rather that both were at fault; In fact any abandonment on the part of appellant was nullified when she offered to return to her husband. Likewise appellee failed to show that he quit living with appellant for reasonable cause as defined in the Rie case, supra. Apparently he thought no such cause existed because he dismissed his action for divorce.

Based upon the above applicable rules and the testimony in this case we conclude that the appellant should have been granted separate maintenance in this case in the amount later mentioned.

(b) Attorney fee. The Chancellor should also have allowed a fee for appellant’s attorney. As shown by the record appellee first filed a suit for divorce. Then appellant filed a motion for attorney fee stating that she had no money with which to employ counsel and later counsel was employed and she filed an answer to the divorce suit. Since there was no showing that appellant had either money or property she was thereupon entitled to money with which to employ counsel. In the early case of Glenn v. Glenn, 44 Ark. 46, this court said; “In the absence of any proof of separate property in a wife, it is just and reasonable to compel the husband to furnish the wife with means to defend a suit by him for divorce. Otherwise she would be at his mercy.” This rule was cited with approval in the case of Slocum v. Slocum, 86 Ark. 469, 111 S. W. 806, and in subsequent cases.

Alloivances. We realize that the trial judge is ordinarily in a better position to ascertain the needs of appellant and the ability of appellee to pay than we are, but we also realize that appellant has been denied assistance for several months and that she might be denied assistance for some time in the future if we did not assume this responsibility. Appellant asked the trial court for $25 a week for maintenance but we do not feel that the record justifies us in making an award in that amount. Based on what the record shows regarding appellee’s financial status and his earnings we have concluded that he should pay to his wife the sum of $10 each week, beginning October 1, 1955. Based on the record we have concluded that appellee should pay $50 for her attorney’s fee in the trial court and $50 for his fee in this court and that he should pay the cost in this court and the court below.

Accordingly the decree of the trial court is reversed with directions to enter judgment for appellant in accordance with this opinion.


author: Robinson, J.

text:
    Walker v. Gaskin.
    5-731
    282 S. W. 2d 606
    Opinion delivered October 10, 1955.

      J. E. Still, for appellant.

      Lookadoo, Gooch <& Lookadoo, for appellee.
   Robinson, J.

The issue here is whether the owner of a city lot has acquired a portion of an adjoining lot by adverse possession. Appellants, J. C. and Joyce Walker, filed this suit alleging that they are the owners of Lot 3 in Block 5, Gresham’s No. 2 addition to the city of Arkadelphia; that the defendants, W. C. and Melva Gaslcin, are claiming the ownership of a strip of land of about six feet on the west side of Lot 3. The Gaskins filed an answer alleging that, regardless of where the true line may be, they had acquired the disputed strip by adverse possession. The court made a finding that the appellees, the Gaskins, had acquired the strip as alleged. The Walkers have appealed.

Appellee, W. C. Gaskin, bought Lot 4 from Edgar 0. and Elinor Ruth Diggs on May 28, 1947. Appellants, the Walkers, bought the adjoining Lot 3 from J. B. and Doris Wright on April 1, 1950. The size of the lots is 25 feet east and west by 142 feet north and south. This suit was filed on June 9, 1954.

Appellants introduced as a witness John Oliver, county surveyor, and attempted to establish the true property lines, but the testimony of this witness falls short of serving that purpose. Although no plat was introduced as evidence, the surveyor claims that the strip of land in dispute is a part of Lot 3. However, he arrived at that conclusion merely by guessing at an accurate starting point.

Walker states that he did not know Gaskin was claiming the land in question until shortly before this suit was filed when Gaskin constructed a small levee. A portion of this levee extended on to Lot 3 in such a manner as to shed water thereon. Previously, Gaskin had constructed a sidewalk in front of his property but did not extend it across the part involved in this litigation. About the year 1949, Gaskin constructed a garage, a portion of which, according to the testimony of the surveyor, extends over onto Lot 3.

J. B. Wright, who sold Lot 3 to Walker, was called as a witness by appellants. He testified that there is a gum tree which is considered to be on the line between Lots 3 and 4, and when he bought Lot 3 the gum tree was pointed out as being on the line; that a fence extended from the center of the tree to the rear of the lot; that he never claimed anything past the gum tree; that between the gum tree and the front of the lot, and on a line with the gum tree, there was an old crape myrtle hush that was considered to he on the property line. Wright said that he planted two small trees on that same line and that there is only 45 feet from the gum tree to the front of the lot, hence the fence from the gum tree to the rear of the lot extended over the greater portion of the property. Wright also testified that he bought to the gum tree and sold to the gum tree; that at all times Gaskin had possession and control of the property west of the gum tree; that Gaskin has lived there since 1947 and built the garage in 1949 and the driveway extending from the garage to the street. Wright further testified:

“Q. Who mowed the lawn on that land up to the street from the gum tree?

“A. We did; split it.

“Q. When you mowed your lawn you mowed your lawn up to the gum tree and on straight to the street?

“A. Yes, sir, that is right.

“Q. Then from the gum tree over, he mowed it? He kept that land mowed from that point of the gum tree where the old fence ran back, and on straight out to the street? He kept that land mowed continuously? You never did do that?

“A. No, sir.”

Wright also said that he and Gaskin had talked over the subject of the property line and had agreed that the line was the gum tree, and when he sold the property to Walker he explained that the gum tree was on the line. Mrs. Wright corroborated the testimony of her husband. Edgar Diggs, who sold Lot 4 to Gaskin, testified that when he bought the property the gum tree was pointed out as the line, and that when he sold the property he pointed out the gum tree as the line.

The Chancellor made a finding that the Gaskins had acquired by adverse possession any portion of Lot 3 that may lie west of the center of the gum tree, and we cannot say that the Chancellor’s finding is contrary to the preponderance of the evidence. The decree is therefore affirmed.


author: Lee Seamstek, Chief Justice.

text:
    Roach v. Oaklawn Jockey Club, Inc.
    5-797
    282 S. W. 2d 814
    Opinion delivered October 17, 1955.
    [Rehearing denied November 7, 1955.]

      Tom Gentry, Attorney General, and Kay Matthews, Asst. Atty. General, for appellant.

      Mehaffy, Smith & Williams, for appellee.
   Lee Seamstek, Chief Justice.

On May 11, 1955, the appellee filed a suit in Pulaski Chancery Court, second division, against the Arkansas State Racing Commission, appellants herein, to permanently enjoin the commission from opening or considering any bids received by it pursuant to an advertisement for bids for the granting of a horse racing franchise in Garland County, Arkansas. The bids were to be received and filed no later than 10 A. M. on May 16, 1955. Appellee prayed for an order of the court temporarily restraining and enjoining the commission from opening or considering any of the bids received by it pursuant to this published notice, and from granting any franchise that would impair the appellee’s rights under the franchise granted it by the former commission. A temporary order of the court was granted enjoining the appellants. Subsequently, a motion filed by the appellants to dissolve the temporary restraining order previously issued and to dismiss the complaint of the appellee, was by the court overruled and the injunction was made permanent. The Chancellor further held that the appellee holds a valid franchise which became effective April 13, 1954, and extends for a period of ten years from that date.

The evidence reveals that the appellee was granted a valid and exclusive franchise on May 14, 1945, by the Arkansas State Racing Commission, to operate a horse racing track in Garland County, Arkansas. The franchise was to extend for a period of ten years from that date. In March, 1954, the Arkansas State Racing Commission had published a notice in the newspapers, as required by law, soliciting bids for the granting of a ten-year exclusive franchise for the purpose of horse racing in Garland County, Arkansas. The franchise was to commence on May 14, 1955, and extend for a period of ten years. In response to this published notice, the appellee submitted a bid in the amount of $100 for the franchise. On April 13, 1954, the commission declared appellee’s bid to be the highest and best offered, therefore, it granted appellee the franchise for a period of ten years beginning May 14,1955, which was 13 months subsequent to the time it was granted.

It is the contention of the present commission that the franchise granted in 1954, by the predecessor commission, is void as against public policy and as having been made without any power and authority in the predecessor commission to make the contract binding on the successor commission. Acting upon this premise and in compliance with an opinion of the Attorney General, the successor commission,- on April 24, 1955, advertised and solicited bids for the granting of a ten-year exclusive franchise for horse racing in Garland County, to take effect after expiration of the previous franchise. In response to this published notice, the commission has received and novr has in its possession, three sealed bids for the ten-year franchise. The bids have not been opened due to the injunction issued in this case.

The appellee has, under successive ten-year franchises, operated a horse racing track at Hot Springs, Arkansas, since 1935. During that period of time appellee has paid the State of Arkansas more than nine million dollars in revenue taxes. Once each year, for a 31-day period, the appellee has conducted a racing meet at Hot Springs. In 1955, the appellee paid the State the sum of $864,107.81, in revenue taxes. The appellee has expended large sums of money in improving and enlarging its racing plant; more than $300,000 since the issuance of the franchise of April 13, 1954. The appellee contends that these capital expenditures for plant improvement could not have been justified without first securing the franchise of 1954, which was to become effective on May 14, 1955, and extend for a period of ten years.

The controlling statute in this case is Act 46 of the Acts of 1935, as amended, appearing as Ark. Stats., Sec. 84-2701, et seq., (1947). The relevant portions of Section 9 of the Act read:

“Only one franchise to operate a race track shall be granted in any county, and said franchise shall in every instance be an exclusive franchise to hold racing meetings in the county for which it is issued . . .

‘£ The franchise shall extend for a period of ten years from the date of the acceptance of the successful bid by the Commission . . .

“The Commission may at any time, and under the procedure above provided, advertise for bids on franchise in any county in the State in which there is not at the time an existing and exclusive franchise for the conduct of racing meetings.”

The franchise that was granted to appellee on April 13, 1954, to commence May 14, 1955, is void. The statute is specific in providing that only one racing franchise can exist in any one county at any one time and that such franchise shall be an exclusive one. The commission is authorized to advertise for bids for a franchise only in a county in which, there is not at the time an existing and exclusive franchise in existence. Further, the franchise is void since it is to commence some 13 months after the acceptance of the bid by the commission. The statute provides that the franchise shall extend for a period of ten years from the date of the acceptance of the successful bid by the Commission. To grant a franchise at that time, April 13, 1954, would be granting an additional franchise in that particular county in violation of the plain wording of the statute.

The commission had no authority to accept a bid and award a franchise to commence at a time in the future subsequent to the expiration of the present valid existing franchise. That is particularly true in this case because the law fixes the time the franchise goes into effect, as heretofore stated.

Estoppel does not apply to the facts in this case. It cannot be used to make an unauthorized act of a state agency lawful, when such act is unlawful or beyond the agencies power to act. State Highway Comm. v. McNeil, 222 Ark. 643, 262 S. W. 2d 129, and cases there cited.

The trial court erred in granting the injunction herein, therefore, the cause is reversed and dismissed.


author: J. Seaborn Holt, Associate Justice.

text:
    McKnight v. Ellis.
    5-719
    282 S. W. 2d 806
    Opinion delivered October 17, 1955.

      Henry S. Wilson and Rieves $ Smith, for appellant.

      Hale & Fogleman, for appellee.
   J. Seaborn Holt, Associate Justice.

January 5, 1953 appellant, McKnight, entered into a written lease contract with appellee, Ellis, under the terms of which he leased 600 acres of land to Ellis to be farmed for rice in 1953. McKnight, in addition to furnishing the land for one-half the crop produced and delivered at the drier, further agreed to furnish “All pumps, motors, and other necessary, proper and adequate equipment to provide water for said rice, including seed rice necessary for planting said acreage . . . one-half the cost of all bean poison, . . . The lessor will build and construct all necessary canals to and on said lands so that said land may be properly watered in accordance with good rice farming practice . . . ”

Ellis brought this suit March 29, 1954, seeking damages against McKnight in the amount of $72,990.88 for breach of said contract. Ellis alleged in his complaint in effect that McKnight had breached the lease agreement in that he failed to furnish 600 acres of land, and in fact furnished only 300 to 325 acres of land; failed to furnish the equipment necessary to supply water in proper time to care for and make the crop and failed to build proper and adequate flumes for canals in time to seasonably furnish a proper and adequate water supply for the rice crop; failed to furnish one-half of the bean poison; failed to provide fuel; and failed to furnisli seed rice at proper times and in proper quantities, and by an amendment alleged that tbe defendant failed to furnish a power unit and a connecting unit at the well; that the same should have been furnished during' the first fifteen days of April; that the flumes and canals were never completed in time to properly water the crop of rice; and that they should have been built prior to March 10 in order to permit same to settle and compact in order to hold and move a head of water.

McKnight answered, denying all material allegations in appellee’s complaint and in a cross-complaint sought $19,000.00 damages for alleged failure on appellee’s part to perform the lease agreement.

A jury trial resulted in a verdict for Ellis of $11,-500.00. From the judgment awarding Ellis this amount, and directing that McKnight ‘‘ Take nothing by reason of his cross-complaint,” is this appeal.

For reversal appellant relies on the following points.

“1. The Court erred in overruling the request of the appellant for a directed verdict at the conclusion of the plaintiff’s testimony in reference to the plaintiff’s claim for damages by reason of the alleged breach of the contract to permit the plaintiff to work the Norfleet lands.

“2. The Court erred in including in the Court’s instruction No. 5 over the objection of appellant the following language: ‘together with such a sum of money as you find from a preponderance of the evidence will compensate the plaintiff for his work and labor, if any, upon the Norfleet lands in readying them for cultivation and unless you do so find your verdict will be for the defendant on this count.’

‘‘3. The Court erred in refusing appellant’s requested instruction No. 1 as follows: ‘ The jury are instructed that the plaintiff in his complaint does not claim that the well furnished by the defendant was not capable of delivering an adequate amount of water to the rice crop and that you will disregard and consider for no purpose whatever testimony as to the construction of another well in the year 1954 on the lands of the defendant. ’

“4. The Court erred in overruling appellant’s motion to strike the testimony relative to another well having been placed on the McKnight lands.

‘ ‘ 5. The Court erred in permitting the introduction in evidence, over the objections of appellant, of changes and improvements made in reference to the lands subsequent to the year 1953. ’ ’

POINTS 1 and 2

It appears undisputed that McKnight took 300 acres of the leased land (known as the Norfleet Place) away from Ellis the last of May, and farmed it himself. It was McKnight’s theory that he was justified in so doing because he (Ellis) had failed to perform his part of the contract. It was for the jury to say, under proper instructions, whether Ellis was entitled to (nominal) damages from McKnight under this alleged breach. We hold that there was substantial evidence to support damages for at least $200.00. Ellis testified, without any objection by appellant, that of $300.00 he spent in ditching and burning on the leased land, $200.00 was spent on the Nor-fleet place above mentioned.

He further testified that he had the tractors, combine, disks, dike plows, seeders, harrows, trucks, grain buggies and equipment necessary to work the Norfleet land; and the necessary labor; that he had done some ditching on the land and burning off the fields; was ready to start work on this Norfleet land the day McKnight took over during the planting season; that McKnight did not contend that Ellis had failed to perform, but said that “we would work out something . . . but never did.” Other witnesses tended to corroborate Ellis. On this testimony the Court was justified in instructing the jury as above indicated that their verdict be for “such a sum of money as you find from a preponderance of the evidence will compensate the plaintiff for his work and labor, if any, upon the Norfleet lands in readying them for cultivation.” We therefore conclude that these two alleged errors are untenable.

POINTS 3 and 4

Appellant next contends that the Court erred in refusing his instruction No. 1 as set out above in Point 3 in his points relied upon, and in refusing his request to strike certain testimony relating to construction of another well subsequent to the 1953 season. It appears that in 1954, following the 1953 rice crop season, appellant had constructed another well on higher land adjoining that here involved and that proof of construction of this new well was allowed to go to the jury. In considering these points we must bear in mind that appellee Ellis concedes that the 16" well on the 600 acres in 1953 was adequate to furnish sufficient water if all flumes and canals had been in proper working condition to carry and spread the water. Appellant’s son-in-law, Jack Ray, testified that he watered the 320 acres in 1954 which Ellis farmed in 1953 with the same flumes and canals used by Ellis but two of appellant’s employees testified that the old flumes would not carry the water over the land and new flumes and a relift pump had to be used.

There was also evidence that, due to unprecedented dry weather in 1953, the flumes and canals cracked in places and absorbed more water than usual, thus reducing the amount of water necessary for the rice crop. Ellis’ complaint did allege that he was not furnished enough flumes and water. The following colloquy between Court and Counsel occurred during the trial: Court: “Now, I don’t find in the complaint where there was insufficient water coming from the well. Mr. Hale: From the well itself? Have not so plead, don’t claim that. The Court: All right. Mr. Rieves: May I ask the Court, if counsel is contending the well furnished him wasn’t sufficient and didn’t supply an adequate amount of water to the flume? The Court: Insofar as the issues in the case are concerned, as the jury will get it to determine when it is presented to them, they will be limited to the allegations in the pleadings, Avhich do not include any statement as to the inadequacy of the water coming from the well. Mr. Nieves: If there is any such contention, I want to plead surprise. Mr. Hale: We have made no such contention, if the Court please, and still don’t. Mr. Nieves: Then, I should like the jury to be instructed at this time not to consider any evidence relative to another well to put on the 160 acres. The Court: Motion to strike the testimony is denied. May consider it together with all the other evidence in the case regarding the issues left them for consideration. Mr. Nieves: Will Your Honor note our exceptions, please. ’ ’

Here the evidence tends to show that the elevations, location of canals, flumes, and direction of slopes in 1953 of the lands involved were unchanged in 1954 from that condition in 1953 and that the new well (which was 12") was constructed on high ground. The 16" well would have been adequate but for improper and inadequate flumes and canals as alleged in the complaint.

The general rule is that evidence of a prior condition may be shown by evidence of a condition subsequent where the condition has not changed and where the lapse of time was not of sufficient duration to make any material difference . . . “Where, from the nature of the situation, the condition is of such a permanent character that the lapse of time would not make material difference, and it would be improbable that change had occurred, testimony as to conditions after the happening of an event is relevant to show the conditions existing at the time.” 80 A. L. N., page 441, § 2.

POINT 5

As to appellant’s final contention that the Court erred in admitting evidence “of changes and improvements made in reference to the lands subsequent to 1953,” what we have already said relative to appellant’s points and contentions above applies with equal force to this last contention and therefore, we hold that it cannot be sustained.

On the whole case we conclude that there was substantial evidence to. support allegations in appellee’s complaint of a breach of contract on the part of appellant, and the damages awarded appellee. Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Fulks v. Walker.
    5-604 - 5-738 (consolidated)
    283 S. W. 2d 347
    Opinion delivered October 17, 1955.
    [Rehearing denied November 28, 1955.]

      Ivan Williamson and Ben B. Williamson, for appellant.

      Chas. F. Cole, for appellee.
   Ed. F. McFaddin, Associate Justice.

These two cases — one from Stone Chancery and the other from Independence Chancery — have been consolidated; as the main question in each case is the custody of the three children of the parties.

In about 1945 Elmer Fulks and Martha Palmer were married in Arizona where they both were then residing; and to that marriage were born three girls, now aged nine, eight and seven years, respectively. Some time after the marriage, Mr. Fulks was sentenced to the penitentiary in North Carolina on a charge of burglary; and on August 3, 1950, Mrs. Fulks obtained a divorce from him in the Superior Court of Maricopa County, Arizona, Avhere she then lived and resided. The decree of divorce gave Mrs. Fulks the care and custody of the three children. She later married Mr. Walker and continues to live in Arizona. In 1952 Mr. Fulks, having been released from the North Carolina prison and having returned to his old home in Arkansas, went to Arizona to see his children. First he asked for, and obtained, permission to take the children on a trip of about 17 miles; and then later he brought the children to Arkansas without Court authorization and without permission of Martha Fulks Walker. She tried to have him extradited to Arizona for trial on a kidnapping charge, but extradition was refused.

Some time after reaching Arkansas Mr. Fulks filed a petition in the Stone Chancery Court to haA^e that Court award him the custody of the three children, Avhich he then had in Arkansas. Mrs. Martha Fulks Walker resisted that petition; and considerable evidence was heard, in the course of which it was discovered that Mr. Fulks actually lived in Independence County, rather than in Stone County. The Stone Chancery Court thereupon dismissed the proceedings; and from that decree Mr. Fulks has appealed to this Court in Case No. 738 herein.

Upon the dismissal of the proceedings in the Stone Chancery Court, Mrs. Martha Fulks Walker filed, in the Independence Chancery Court, a petition for a writ of habeas corpus to regain the custody of her three children. Trial resulted in a decree awarding the custody to her, and also awarding support money of $45.00 per month and a small amount for attorney’s fee. From that decree Mr. Fulks has appealed in Case No. 604 in this Court.

I. Custody Issue. The real question is the custody of the three children. We start with the decree of the Superior Court of Maricopa County, Arizona — a Court whose jurisdiction is unquestioned. Mr. Fulks entered his appearance in that case in 1950; and the Court awarded the custody of the children to their mother, the appellee here. That decree has never been changed or modified. The record herein discloses that Mr. Fulks took the children from Arizona without the consent of appellee. The fact that she tried to have him extradited to Arizona for “child stealing” indicates her attitude in the matter.

Mr. Fulks claims that conditions have changed since the rendition of the Arizona decree, and that it is for the best interest of the children that he keep them in Arkansas rather than that the mother keep them in Arizona. Apparently the Independence Chancery Court gave little weight to the evidence in regard to such claim because the decree recites:

“. . . there has been no substantial change in conditions which would warrant or authorize this Court to change the award of custody of said children made by the Arizona Courts, and that the plaintiff, Martha Fulks Walker, be awarded the immediate custody of said children . . .”

A careful reading of the entire record and study of the briefs, fails to convince us that the Chancery Court was in error. It would serve no useful purpose to review all the evidence or refer to the cited cases. Each child-custody case must rest on its own peculiar facts. That the Independence Chancery Court had the power to award support money is established by our holding in Waller v. Waller, 220 Ark. 19, 245 S. W. 2d 814.

II. Procedural Questions. When Mrs. Martha Fulks Walker filed the habeas corpu,s proceeding in the Independence Chancery Court, Mr. Fulks filed a motion that she be required to make a bond for costs, since she was a non-resident. The Court refused the motion; and Mr. Fulks claims error. Our Statute (§ 27-2301, Ark. Stats.) requires a bond for costs of a non-resident, and makes the plaintiff’s attorney liable for costs in the absence of such a bond ('§ 27-2304). It is argued that in some habeas corpus proceedings a bond for costs is not required. We need not consider that argument. Even if the Trial Court committed error in refusing to require bond for costs, nevertheless such error has become harmless, since the plaintiff prevailed in the lower Court and the decree is affirmed here.

Likewise, we need not consider whether the Chancellor assigned a correct reason for the decree in the Stone Chancery Court because, at all events, the Independence Chancery Court had jurisdiction in the habeas corpus proceedings and exercised such jurisdiction to a wise conclusion.

Affirmed.

       Some jurisdictions hold that a bond for costs is not required in certain habeas corpus proceedings. See 20 C. J. S. 364; 25 Am. Jur. 255; and Annotation in 81 A. L. R. 151.

       In 5 C. J. S. 893 cases are cited to sustain this statement: “Error in refusing to require security for costs is rendered harmless where judgment is for plaintiff, particularly where it is affirmed . . .”


author: Minor W. Millwee, Associate Justice.

text:
    Kinney v. Patterson.
    5-725
    282 S. W. 2d 809
    Opinion delivered October 17, 1955.

      Batchelor & Batchelor, Van Burén, for appellant.

      Mark E. Woolsey, Ozark, for appellee.
   Minor W. Millwee, Associate Justice.

This appeal is from a decree enjoining appellants, Earl L. Kinney and wife, from interfering with appellee, Gavin Patterson, in the cutting and removing of certain timber from a 180-acre tract of land which appellants own in Crawford. County.

In 1951, Robert Ploffman and his wife, J'osie Lee Hoffman, owned the 180-acre farm in question as tenants by the entirety. The Hoffmans were then making their home in Ft. Worth, Texas, having moved from the 180-acre Arkansas farm sometime previously. Appellee was operating a sawmill near the land on March 24,1951, when Hoffman and his wife came to the sawmill and told appellee they would like to sell him the timber on the 180-acre farm in order to pay a debt they owed. It was then and there orally agreed that the Hoffmans would sell all merchantable timber 6 inches in diameter, or above, on the farm to appellee for $100.00 with no time limit for cutting and removing the timber. That night, appellee and Robert Ploffman went to a notary public in the town of Mulberry and had him draft the following written memorandum which was signed only by Hoffman and appellee: “Party of the first part, sells to party of the second part, all saleable timber from eight (8) inches up, on any part of my farm. No time limit to remove timber.” Appellee paid the purchase price of $100.00 and entered into possession of the lands and began cutting the timber.

After sale of the timber to appellee, the Hoffmans listed the 180-acre farm for sale with an agent in Alma, Arkansas, who was advised of the terms of the timber sale to appellee. The agent negotiated a sale of the farm to appellants, who were agreeable to purchase the farm subject to the timber sale to appellee, provided the timber was cut and removed within 60 days, but they objected to the provision that there was no time limit for removing the timber.

A written agreement of sale of the lands to appellants was entered into between them and the agent of the Hoffmans on February 1, 1952, which contained a provision as follows: “Mr. Patterson, who has bought the marketable timber from Robert Hoffman on this said property of 180 acres, will have 60 days from date of February 1, 1952, to remove said timber which has been bought, and it shall be required of the seller that he notify him of said terms of this contract.” Appellee was not a party to the negotiations between appellants and Hoffman’s agent and knew nothing about the contract. The Hoffmans conveyed the lands to appellants by warranty deed on February 9, 1952.

Appellee learned of the sale of the property to appellants about April 1, 1952. He continued to cut and remove the timber from said lands at different times until on or about April 17, 1952, when appellant, Earl L. Kinney, closed the fences around the lands and forbade appellee’s cutting and removing any more of the timber. Appellee then filed the instant suit resulting in the decree rendered December 10, 1954, which gave appellee 90 days from January 10, 1955, in which to cut and remove the balance of the timber under his contract, or, in the event of an appeal to this court, 90 days from the filing of this court’s mandate in the chancery court.

Appellants alleged as a defense in their answer that the contract between appellee and the Hoffmans for sale of the timber was void for the reason that the 180 acres constituted the homestead of Hoffman and his wife, and she did not join her husband in a written conveyance of the timber as required by Ark. Stats., § 50-415. This is also appellants’ present contention for reversal. In considering this argument, we will assume, without deciding, that appellants are in position to rely upon any homestead rights that the Hoffmans had in the lands at the time of the timber sale.

The burden was upon appellants to show that the land was a homestead. Gibbs v. Adams, 76 Ark. 575, 89 S. W. 1008. Other applicable rules are stated in Gillis v. Gillis, 164 Ark. 532, 262 S. W. 307, as follows: “The question of whether one who removes from his homestead has abandoned same is one of intention, which must be determined from the facts and circumstances attending each case. In order to avoid an abandonment, where one moves away from his home, there must not only be a present but a constant, abiding intention to return from time of removal. Gray v. Bank of Hartford, 137 Ark. 232. One who leaves his home and acquires another, where he resides for a reasonable time, will be presumed to have abandoned his old home, in the absence of convincing testimony to the contrary. Wolf v. Hawkins, 60 Ark. 262.”

Under the scant evidence adduced here, the able chancellor would have been fully warranted in finding that the lands in question did not constitute the homestead of the Hoffmans at the time of the timber sale to appellee in March, 1951. They had sometime previously moved to Ft. Worth, Texas, and were merely on a visit with Mrs. Hoffman’s mother at the time of the sale. They did not testify and there is no showing of any intention on their part to return to the Arkansas farm which they sold to appellants in February, 1952.

According to the testimony, Mrs. Hoffman was a party to the negotiations for the sale of the timber to appellee and the oral agreement as to the terms of such sale, although she did not sign the written memorandum of the agreement. It is also undisputed that appellee paid the purchase price and was placed in possession of the lands for the purpose of cutting and removing the timber. We have held that a contract for the sale of timber is taken out of the Statute of Frauds [Ark. Stats., § 38-101], even though the contract is oral, where the vendor receives payment of the purchase price and the purchaser enters possession. Beattie v. Smith, 146 Ark. 532, 226 S. W. 168. When appellee paid the purchase price and entered possession, the transaction was taken out of the Statute of Frauds and a valid sale of the timber was consummated. This conclusion renders it unnecessary to determine whether appellants were estopped from denying the validity of the sale.

Affirmed.


text:
    Dobbs v. Dobbs.
    5-728
    282 S. W. 2d 812
    Opinion delivered October 17, 1955.

      E. H. LaMore and Herrn Northcutt, for appellant.

      Green & Green and Oscar E. Ellis, for appellee.
   George Rose Smith, J.

In December, 1953, the appellant came to Arkansas from Missouri. Some three months later he filed suit for divorce in the Fulton Chancery Court, the service of process upon the appellee being by warning order. At the term beginning in April, 1954, the court entered a default decree granting the divorce. During the same term of court the appellee filed a motion to set aside the decree, upon the ground that the appellant was not a resident of Arkansas. This motion was not presented to the court until the October term, at which time the chancellor, after hearing additional testimony, found that the appellant is not a bona fide resident of Arkansas and that the decree should be set aside as having been obtained by fraud on the court. This appeal is from the order vacating the original decree.

Although the appellee’s motion was filed during the April term of court, the court’s discretionary power to grant the motion ended with the lapse of the term and could not be revived even by consent. Mayor & Aldermen of Little Rock v. Bullock, 6 Ark. 282; Brady v. Hamlett, 33 Ark. 105; Ingram v. Wood, 172 Ark. 226, 288 S. W. 393. Hence the question is whether there is a sufficient showing of fraud on the court to warrant the vacation of the decree under the statute that applies after the expiration of the term. Ark. Stats. 1947, § 29-506.-It may be added that, since the appellee did not enter her appearance prior to the rendition of the divorce decree, the issue of residence is not res judicata and may be re-examined. Anderson v. Anderson, 223 Ark. 571, 267 S. W. 2d 316.

The proof follows a pattern familiar in cases of this kind. Dobbs had first sought to obtain a divorce in Missouri. On the day after his petition there was denied he came to Arkansas and undertook the establishment of residence in this state. At the time of the October hearing Dobbs had been in Arkansas for a little more than ten months. In that period he had started a salvage business (which took him frequently back to Missouri), had assessed and paid taxes in Arkansas, and had begun the construction of a home on land he had bought. Several witnesses corroborate the fact of Dobbs’ presence in the community. Although some of these matters occurred after the entry of the decree in April, they are not without relevance to the question of whether Dobbs came to Arkansas with the intention of making it his domicile.

On the other hand, Dobbs admittedly migrated to Arkansas immediately after his complaint for divorce had been dismissed in Missouri. This is a circumstance to be considered, although it is not necessarily fatal to the acquisition of an Arkansas domicile. Wicker v. Wicker, 223 Ark. 879, 269 S. W. 2d 311. It is also shown that during most of his stay in Arkansas Dobbs has been living in a tent pitched on the site where he is assertedly building a house.

In our opinion the record fails to establish the charge of fraud on the court. It is true that one who obtains a divorce upon perjured testimony as to residence commits a fraud on the court. Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498; Murphy v. Murphy, 200 Ark. 458, 140 S. W. 2d 416. But in those cases the plaintiff was guilty of conscious and deliberate perjury, his testimony as to physical residence having been wholly untrue. That is not the situation in the ease at bar. Too, in each of the above cases the husband had concealed his wife’s true address, so that she failed to receive notice of the suit. Here Dobbs supplied the appellee’s correct address; her failure to receive notice was due to her own refusal to accept the registered letter mailed to her by the attorney a cl litem.

In this case it is fair to say that the evidence as to residence is evenly balanced or very nearly so. If this were simply an appeal from a decree denying the appellant’s request for a divorce it might well be said that the chancellor’s decision was not clearly against the weight of the evidence. But that is not the case before us. The appellee’s present burden of proof is not merely that of disputing the assertion of residence; she must go a step farther by showing that the decree was obtained by fraud. Reasons of public policy make it desirable that decrees affecting the marital status have a high degree of stability. “There are excellent reasons why judgments in matrimonial causes, whether of nullity, dissolution or separation, should be more stable, certainly not less, than in others, and so our courts hold. The matrimonial status of the parties draws with and after it so many collateral rights and interests of third persons that uncertainty and fluctuation in it would be greatly detrimental to the public.” Corney v. Corney, 97 Ark. 117, 133 S. W. 813. We are unwilling to hold that fraud on the court is established by mere proof that the issue of residence is a closely disputed question of fact that might he resolved either way. Under such a rule every uncontested divorce case would be subject to trial de novo for the indefinite future. This appellant undoubtedly made prima facie proof of residence. There being little if any evidence of deliberate perjury, wrongful concealment of the defendant’s whereabouts, or other conduct by which the decree was fraudulently procured, the original decree should have been allowed to stand.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Pearson v. Ponder, Judge.
    5-736
    283 S. W. 2d 343
    Opinion delivered October 17, 1955.
    [Rehearing denied November 28, 1955.]

      Ivan Williamson and Ben B. Williamson, for petitioner.

      J. L. Bitile and W. J. Arnold, for respondent.
   Paul Ward, Associate Justice.

Truman T. Poster is a resident of Stone County, Arkansas, and is the owner of 160 acres of land situated in that county. On June 11, 1953, he filed a complaint in the Stone Comity Circuit Court against Mr. and Mrs. J. C. Pearson stating that Mr. and Mrs. Pearson resided in Cleburne County, Arkansas, but operated a sawmill in Stone County during the year 1951 and perhaps at later dates; that said Pear-sons wrongfully and unlawfully entered upon complainant’s lands and cut and removed therefrom over 879 virgin pine trees reasonably worth $800, and; that they also cut and removed from said land 131 white oak trees and converted same to their own use, valued at $300. The prayer was for the market value and also, because of the wrongful and unlawful cutting, for triple damages.

Summons was issued by the Clerk of Stone County directed to the Sheriff of Cleburne County and there served upon Mr. and Mrs. Pearson.

On November 16, 1953, Pearsons filed a motion in the Circuit Court of Stone County to quash said summons and service, contending that the action instituted by Foster was transitory, and that they could be sued only in the county where they were served. This motion to quash was, on the same day, granted by the trial judge.

On February 2, 1954, Foster filed an amended and substituted complaint in which was reiterated substantially the same allegations contained in the original complaint but which contained two general additional allegations. In the first part of the amended complaint which deal with the pine and oak trees it was alleged that Pearsons “unlawfully trespassed upon said lands . . . cut roads through and upon said lands, cut and otherwise damaged young trees growing on said lands, and by these and other things and matters greatly injured and damaged said lands.” Following the above appears this additional allegation: ‘ ‘ That in addition to the damages above described and prayed for, the aforedescribed lands have been damaged by having young growing trees bruised, cut, skinned, and otherwise ruined for future growth by having roads cut through said lands, by having ruts and resulting ditches erode in said lands, from which said lands have been damaged in the amount of $200.00.”

The prayer was for judgment in the amount of $4,245 with interest at 6 per cent from date of trespass and for costs.

Again summons was issued and served in the same way as the first summons as heretofore stated, and again Pearsons, without entering their appearance for any other purpose, filed a motion to quash the service of summons. In this motion it was stated “. . . the plaintiff cannot maintain an action against them [Pear-sons] both for damages to plaintiff’s land by reason of any alleged trespass thereon by defendants, and for treble, or other value of the timber alleged to have been cut, removed and converted by the defendants; that the two actions are separate and distinct, cannot be joined in the same suit as plaintiff has sought to do and that either of said actions when instituted, is a bar to the bringing of the other.”

The above motion to quash was overruled by the trial court, and by this petition Pearsons ask this court to prohibit the Circuit Judge of Stone County “from proceeding in any wise or manner against petitioners in said cause, except on that count and allegation in said amended and substituted complaint asking damages to plaintiff’s lands, . . .” Prom this we take it that the petitioners are asking us to restrain the Circuit Judge of Stone County from proceeding further in this cause of action except as to the last portion of the amended complaint referred to above wherein $200 damage to the lands is alleged.

It is conceded by all the parties that if a cause of action similar to this one is based solely upon damage or injury to real property that the cause must be tried in the county where the land is situated, and that service may be had on the defendants in any county of the state; and further that if the complaint states only an action for conversion of timber then the cause must be tried in the county where the defendants reside or in the county where they are served with summons.

The petitioners here make an ingenuous and forceful contention that, except for the last portion of the amended complaint relating to $200 damage to the land, only an action for conversion is stated. The result therefore, petitioners say, is that there is no proper service upon which an action for conversion can be tried in Stone County. The argument then is, citing Southeast Construction Company v. Wood, Judge, 223 Ark. 325, 265 S. W. 2d 720, and the same style case in 223 Ark. 328, 265 S. W. 2d 722 that Foster cannot pursue both an action for damages to land and for conversion of timber in the same suit, that he must choose between them and that the choice of one excludes the other. From this argument it would seem to necessarily follow that Foster in this instance could only choose to sue for damage to his land since that is the only cause of action in which he has proper service, and that consequently this court should enjoin the trial court from trying the action in conversion.

It is our conclusion that petitioners’ position and argument are untenable and that they are based on a false premise. It appears to us that petitioners are assuming that the first portion of the amended complaint states only a cause of action for conversion of timber. In this they are in error. A careful reading of the amended complaint shows, and it is revealed by the portions heretofore set out, that a cause of action for injury to land is clearly stated. Since the trial court ruled that the original complaint stated an action for conversion only it is reasonable to assume that the very purpose of the amended complaint was to change it to an action for injury to land.

It seems to us that petitioners have also fallen into error in their interpretation of the holding in the Southeast Construction cases cited above. Those cases did not deal with the duty of a complainant to choose between a cause of action for conversion and a cause of action for injury to land where they are both stated in the same complaint. In fact, as we have just stated, we are here dealing with a complaint [the amended complaint] which states only a canse of action for damage or injury to land. The cases referred to above merely hold that, before the complaint is filed, the complaining party, in many instances, has an option to file a complaint for conversion or a complaint for injury to land and that he must choose between them. It has been many times recognized by this court that two different causes of action may arise out of the same set of facts in cases of this kind. In the case of Western Union Telegraph Company v. Bush, 191 Ark. 1085, 89 S. W. 2d 723, 103 A. L. R. 367, this fact was stated in these words: “It does not follow that, because articles may be severed from the soil, the action therefor must be one for damages to real property nor does it follow that because severed articles may be converted a suit for conversion is the only remedy.”

Therefore it is clear to us that since Poster, in his amended complaint, stated a cause of action for injury or damage to his lands situated in Stone County the suit could be tried only in Stone County and that consequently proper service was had on the petitioners in Cleburne County. This being true the Circuit Court of Stone County acquired jurisdiction and this court is without authority to restrain him from proceeding in the trial of the case.

Petitioners apparently are disturbed by the prospects of Poster suing for injury to his land and at the same time recovering treble damages for the timber cut and removed therefrom under the provisions of Ark. Stats., % 50-105. Any questions that may rise because of this anticipated procedure are not ones which we are called on to pass upon at this time, nor have they been briefed. Such questions, if they arise, may be properly presented to the trial court.

Writ denied.