author: Carleton Harris, CMef Justice.

text:
    Stewart v. State
    5170
    402 S. W. 2d 116
    Opinion delivered April 25, 1966
    [Rehearing denied May 24, 1966.]

      Walter J. Hebert and Curtis L. Ridgway, Jr., for appellant.

      Bruce Bennett, Attorney General; Farrell Faubus, Asst. Atty. General, for appellee.
   Carleton Harris, CMef Justice.

Freeman Stewart, appellant herein, was charged with unlawfully possessing intoxicating liquors or beverages for sale in a dry county, the Information alleging Stewart to be a third offender, and therefore, guilty of a felony. On trial, the jury found Stewart guilty, and fixed his punishment at imprisonment in the State Penitentiary for five years.* From the judgment so entered, appellant brings this appeal.

It is first asserted that the court erred in permitting introduction of evidence of Stewart’s reputation for engaging in illicit trade in intoxicating liquors. This evidence was offered under the provisions of Ark. Stat. Ann. § 48-940 (Repl. 1964), which reads as follows:

“In any prosecution or proceeding for any violation of this Act, the general reputation of the defendant or defendants for moonshining, bootlegging, or being engaged in the illicit manufacture of, or trade in, intoxicating liquors, shall be admissible in evidence against said defendant or defendants.”

Appellant contends that this act is unconstitutional. We held contrary to this contention in Richardson v. State, 211 Ark. 1019, 204 S. W. 2d 477.

It was stipulated by the prosecuting attorney and counsel for appellant (after the state had concluded its testimony) that Stewart had been convicted of selling intoxicating liquors or beverages, or having intoxicating liquors or beverages in his possession for the purpose of sale, on at least two occasions prior to the filing of the instant charge. When Stewart took the stand to testify, he was asked on cross-examination about previous convictions. Appellant contends that this was prejudicial error, since he had already, by stipulation, admitted two previous convictions. The court clearly pointed out, at the time this evidence was being given, that the jury could only consider the testimony as it “may reflect upon the credibility of this witness.” Even if error had been committed, appellant is not in a position to complain. At the conclusion of all the evidence, appellant requested the following instruction:

“You are instructed that you will not consider the evidence in this case of previous convictions of defendant Stewart in determining his guilt or innocence of the charge on which he is now being tried; that such evidence has been admitted only and solely for the purpose' of imposing a heavier penalty, as provided by statute, in the event all the other evidence in the case convinces you beyond a reasonable doubt of defendant’s guilt, and the only other purpose for which it was admitted was as it may reflect on the credibility of the' defendant as a witness in his own behalf.”

In compliance with appellant’s request-, the instruction was given. Actually, that portion of the instruction, which told the jury that the evidence (either that introduced by stipulation or by cross-examination) could be considered for the purpose of imposing a heavier penalty, was erroneous under our holding in Miller v. State, 239 Ark. 836, 394 S. W. 2d 601. Under the procedure there outlined, the jury would not have been told of these previous convictions, which appellant admitted by stipulation, and the court, in instructing the jury as to the punishment (if appellant were found guilty of the current charge), would simply have given the penalty that is provided for a third offense. However, since appellant requested the quoted instruction, this error was waived.

Though, under Miller, the state is precluded from offering evidence of prior convictions in its case in chief, there is nothing under that holding which precludes the state from asking a defendant, who takes the stand, about previous convictions. This is still admissible as a matter of reflecting on the credibility of a defendant as a witness in his own behalf.

Though not argued strenuously, and not listed as a point for reversal, appellant mentions that the evidence was insufficient to sustain a conviction. Without detailing the proof, it is enough to state that the evidence was ample to sustain the verdict rendered.

Affirmed.

Amsler, J., not participating.

      Ark. Stat. Ann. §48-811.1 (Repl. 1964) provides as follows: “Hereafter it shall be unlawful for any person, firm or corporation to sell or barter or possess for purposes of sale or barter any intoxicating liquor or beverage in any county, township, municipality, ward or precinct in which the sale or barter of intoxicating liquor and/or beverage is or shall be prohibited by law. Any person, or officers of any firm or corporation who shall do so shall upon first conviction be deemed guilty of a misdemeanor and shall be fined not less than $100.00 nor more than $1,000.00; and any such person or officers of a firm or corporation for a second conviction shall be fined not less than $200.00 nor more than $2,000.00; and for any subsequent conviction such person or officers of a firm or corporation shall be deemed guilty of a felony and shall be sentenced to not less than one (1) nor more than five (5) years in the state penitentiary.* * *”

      The evidence reflected that Stewart was in possession of a partial case of Jax Beer (eighteen 12-ounce bottles), and a full case of Pabst Blue Ribbon Beer (twenty-four 12-ounce bottles).

        Miller was decided after the instant case was tried.

      This is true, unless there is a statutory prohibition. For instance, see Ark. Stat. Ann § 75-1012 (Repl. 1957).


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Benton State Bank v. Reed
    5-3858
    401 S. W. 2d 738
    Opinion delivered April 25, 1966

      Fred E. Briner, for appellant.

      Hall, Purcell, Boswell & Tucker, Wendell 0. Epperson, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Donald A. Reed, is a resident of Pulaski County, Arkansas. Appellant, Benton State Bank, has its principal office for business in Benton, Saline County, Arkansas. William R. Buchanan and Anna B. Buchanan are residents of Saline County, and at all times pértinent to this litigation were engaged in the building and glass work business, the company doing business as Benton Glass Company (hereinafter called Buchanan), and operating principally in the city of Benton. In the spring of 1960, Buchanan commenced borrowing money from Reed. In May, 1960, he borrowed $3,000.00; in June, $1,000.00, and on July 28, Buchanan borrowed an additional $6,000.00, and executed a promissory note in the sum of $10,000.00, representing the entire indebtedness at- that time. The note was to be paid at the rate of $167.00 per month, the first installment due one month from date, and like payments on the 28th day of each succeeding month thereafter until paid in full. A mortgage was executed, and delivered to Reed, on realty in Saline County for the purpose of securing Buchanan’s indebtedness. The printed portion of the mortgage, just preceding the defeasance clause, contains the following language:

“And it is agreed that the failure to pay any one of said installments when due or any part thereof or the insurance above mentioned or taxes against said property when due that all installments shall immediately become due and payable, and that this mortgage shall cover and secure any and all renewals of said note for said indebtedness or for any part thereof and all other loans and advances made from date hereof wntil the foreclosure or satisfaction of this mortgage, (Emphasis supplied.)”

Thereafter, appellee, advanced the following sums to Buchanan on the respective dates mentioned:

August 2, 1960—$2,000.00
August 16, 1960—3,200.00
September 8,1960—5,000.00
December 12, 1960—5,000.00

On October 3, 1964, Buchanan executed to the Benton State Bank a note in the sum of $30,000.00, secured by a realty mortgage covering the same property mortgaged to Beed. On the same date Buchanan tendered to Beed the sum of $2,722.62, which Buchanan contends represented the balance due on his mortgage indebtedness to Beed, but the latter would not accept this amount, contending that the subsequent loans, totaling $15,200.00 were covered by the mortgage. Buchanan took the position that the subsequent loans were not secured, and suit was instituted against appellee to compel satisfaction of the mortgage. Beed brought in the bank as a defendant. On trial, the court rendered judgment for appellee in the amount of $12,851.97, plus a $500.00 attorneys fee; rendered judgment for the Benton State Bank in the amount of $26,982.27, plus $500.00 for attorneys fees, and further rendered judgment for Binswanger Glass Company in the amount of $5,438.37. The court held that Beed’s lien on the mortgaged real estate was prior and paramount to that of Benton State Bank and Binswanger, and that the bank’s lien was paramount to that of Binswanger. From the decree so entered, appellant brings this appeal., ..

A study of our holdings on'.'this' subject, discloses several cases where we held that the. mortgage secured future advances, and. also several, to the contrary, Actually, the result in the eases seems to. depend upon the. particular facts and circumstances. The case of American Bank and Trust Company v. First National Bank of Paris, 184 Ark. 689, 43 S. W. 2d 248, is one of the principal cases relied upon by appellant. However, there, the clause in the mortgage (said to cover future advances) was somewhat different from that in the instant case, and there was no connection at all between the original indebtedness and the subsequent advances. In American, the language covering future advances appeared in the defeasance clause, reading as follows:

“Now, if the said T. B. Harris and Susanna Harris shall pay said money at the time and in the manner aforesaid, together with renewals, extensions or advances, then the above conveyance shall be null and void.”

Here, the clause precedes the defeasance clause, and obviously, the language in the present case is far more clear and forceful than the clause in American.

Appellant also relies upon Jacobs v. City National Bank of Ft. Smith, Ark., 229 Ark. 79, 313 S. W. 2d 789, but the language in that mortgage was also entirely different from that in the instant case. Again, the clause depended upon appeared in the defeasance clause of the mortgage, and reads as follows:

“Now if the said mortgagors shall pay or cause said indebtedness to be paid with interest according to the terms hereof and all other indebtedness of the mortgagors to mortgagee', then this instrument to be null and void; otherwise to remain in full force and effect.”

In Word v. Cole, 122 Ark. 457, 183 S. W. 757, a recital appears, which is very similar to that in the Buchanan mortgage, though the language in the instant case is much more unequivocal:

* * *whereas, the first party desires to secure the payment of said sum and all other sums that are now due or that may hereafter become due to said party of the third part,* * *. ”

We held that the language was sufficient to cover advances. See also Thompson v. B. W. Reeves & Company, 170 Ark. 409, 279 S. W. 1011, and cases cited therein.

Buchanan testified that there was no intention to include future advances, while appellee testified to the contrary, but one circumstance points clearly toward appellee’s version. Reed started lending money to Buchanan in May, 1960, and when the total reached $10,000.00, he obtained security; the subsequent loans, however, totaled over $15,000.00. Unless Reed felt that he already had security for these advances, it certainly seems logical that he would have taken another mortgage to cover the additional amounts.

Appellant says that the checks (subsequent to July 28, 1960) were made to the Benton Glass Company, rather than to Buchanan, but these checks are endorsed “Benton Glass Company by W. R. Buchanan” or “W.R.B.,” and the only notes appearing in the record to cover these loans are executed by Buchanan and his wife.

Appellant complains thát the language securing advances appears in the printed portion of the mortgage, and is in small print. He argues that there is ‘significance in the fact that no typewritten information was placed in the mortgage to indicate to a third party that future advances would be made. It appears to us that it would be somewhat pointless to type in a paragraph that already clearly appears in print. That would be to say that the printed portion of a mortgage carries no weight at all—and this is not true. As far as the size of the print is concerned, this clause is of the same size as the rest of the printed matter in the instrument, though this was not true in Jacobs.

Obviously, appellant had notice that Buchanan was indebted in some amount to Reed, for it issued a cashier’s check to Buchanan (in the sum that Buchanan argues is the true amount of the secured debt) to satisfy this indebtedness. Inquiry into the amount of the debt could have easily been made by writing a letter to Reed or by making a telephone call. Even if there" had been no knowledge on the part of appellant that Buchanan was indebted to some other party,, it would appear that in the exercise of ordinary caution, the bank, an institution whose very business is lending money, would have conducted some investigation before lending $30,000.00. This is particularly true when the mortgage, given by Buchanan to the bank, contains the same identical clause with reference to advances that appears in the mortgage to Reed, and which is the crux of this litigation.

"We are unable to say that the Chancellor’s findings are against the preponderance of the evidence, and the decree is accordingly affirmed.

Counsel for Reed request a reasonable attorneys’ fee for work done on this appeal, and we think this request should be granted in the sum of $200.00.

It is so ordered.

Amsler, J., not participating.

       Binswanger has not appealed.

      We have also held language appearing in a defeasance clause to be sufficient to secure future advances, finding that it was the intent of the parties that this be done. Jones v. Dowell, 176 Ark. 986, 4 S. W. 2d 949.


author: Ed. F. MoFaddin, Justice.

text:
    Scott v. Altom
    5-3859
    401 S. W. 2d 734
    Opinion delivered April 25, 1966

      Leon Reed and C. E. Blackburn, for appellant.
    No brief filed for appellee.
   Ed. F. MoFaddin, Justice.

This is an appeal from a judgment of $150.00. Appellees, Johnny Sexton and wife, owned a tract of land in White County. They leased the land to appellee, William M. Altom, for a cattle pasture from May 1, 1963, to May 1, 1964; and then extended the lease to May 1, 1965. On September 15, 1964, the Sextons sold their land to the appellant, Carl Scott. He demanded possession of the land from Altom, who refused to surrender, claming that he had it leased until May 1, 1965.

Then Scott proceeded to take matters in his own hands. He entered on the land and drove Altom’s cattle from the pasture to a farm about four miles away. When Altom threatened arrest, Scott returned the cat-tie to a nearby farm. Altom filed this suit in chancery to enjoin Scott from interfering with Altom’s use of the land until May 1, 1965, and also sought money judgment for damages to the cattle. A temporary injunction was issued against Scott, which was allowed to remain in effect until after May 1, 1965. As against Altom, Scott (a) denied Altom had a valid lease of the land; and (b) also denied that Altom had established any damage to the cattle. Scott also cross-complained against Sexton and wife, grantors in the deed. They denied liability to Scott, claiming that they had repeatedly told him of the Altom lease.

"With the issues thus joined, the Chancellor heard the evidence ore terms and rendered a decree: (1) for $150.00 damages for Altom against Scott; and (2) for the Sextons on Scott’s cross-complaint against them. From that decree Scott brings this appeal against both Altom and the Sextons, and presents three points now to be discussed.

I.

Scott contends that Altom had no right to possession of the land because his rental contract from the Sextons violated the statute of frauds (Ark. Stat. Ann. § 38-101 et seq. Repl. 1962), in that the lease was for longer than one year and was not in writing. Assuming, without deciding, that Scott’s contention about the statute of frauds could be raised by him, nevertheless we find no merit to such contention. There was introduced in evidence: (a) a letter from the. Sextons offering to rent the land to Altom for one year beginning May 1, 1963; (b) the receipt, dated May 1, 1963, for one year’s rent “beginning May 1, 1963, ending May 1, 1964”; and (c) the receipt dated May 2, 1964, for the rent “for one year to May, 1965.” Thus, in May 1964 the Sextons rented the land to Altom for one year ending May 1965. Such an oral contract is not violative of the statute of frauds. Alexander v. Hollis, 115 Ark. 589, 171 S. W. 915; and Boddy v. Thompson, 179 Ark. 71, 14 S. W. 2d 240. Furthermore, there was a written contract for one year and a holding over for a second year, and also the two receipts. Altom certainly had the land leased until May 1, 1965.

II.

Scott next insists that there was no evidence to support the amount of $150.00 awarded Altom as damages to the cattle. We find no merit in this point. As previously stated, Scott took matters in his own hands, and, in the absence of everyone, he drove the cattle from the rented premises a distance of four miles to another farm in an adjoining county. When he was threatened with prosecution he drove the cattle back to a farm near the one that Altom had rented. Thus, the cattle were driven in excess of seven miles. The evidence shows that there were sixteen head of the cattle, fifteen being beef cattle and one being a jersey; and that the cattle were in a good, fat, healthy condition before Scott drove them out of the pasture, and that when he returned the cattle they had lost considerable weight and were “lank.” Altom testified that he had to feed the cattle for about two months to get them back in a good healthy condition; that the feed cost him sixteen bundles of sorghum hay per day for about two months; and that this had a value of $288.00.

Notwithstanding all this testimony, Scott claims that Altom failed to show damages by the proper yardstick: that is, he did not show the market value of the cattle immediately before the taking, and the market value immediately after the return. It is true that we have held that in the injury to livestock the measure of damages is the difference in the market value before and after the injury. St. L. I. M. & So. Ry. v. Biggs, 50 Ark. 169, 6 S. W. 724. But in the case at bar, there was no showing as to the market value of the cattle in the locality ; and, in such instance, the damages may be established by showing the amount reasonably and necessarily expended in restoring the animals to their previous condition. In Hartgrove v. Southern Cotton Oil Co., 72 Ark. 31, 77 S. W. 908, there was involved the question of the damages to cattle for becoming sick by reason of bad feed; and in that case Judge Riddick used this language:

“As to the cattle which recovered, there are two rules for the admeasurement of damages; which, though different in form, amount in results, so far as this case is concerned, to about the same thing. The first of these, which theoretically at least, seems to be the most exact, and which has been adopted by this court, is to allow the difference between the value of the animals immediately before they became sick and their value immediately after they became sick. New York R. Co. v. Estill, 147 U. S. 591; St. L. etc. Ry. Co. v. Biggs, 50 Ark. 169, 6 S. W. 724. If the wrongful act of the defendant caused the cattle of plaintiff to become sick, then this rule gives him full compensation for the depreciation in value caused by the sickness, which is all that he is entitled to claim. But, in order to correctly determine the value of the cattle after they became sick, it is proper for the jury to take into consideration the subsequent history of the sickness. They should consider the amount of care and expense reasonably required on account of the sickness, and whether the cattle were permanently injured by the sickness cr entirely recovered from the effects thereof. Lemon v. State, 19 Ark. 172. It would not be possible for the jury to correctly determine the value of the cattle after they became sick, without knowing and considering these matters.”'

The quoted language agrees with the facts in this case. Of course, the better rule is to show the market value immediately before the injuries and the market valúe after the injuries; but in the quoted language we recognized the alternate method of measuring damages ; and that is evidently the method that the Chancellor was obliged to use in the case at bar. In Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, there was the question of the damage to an automobile. There was no, showing of market value and in allowing the amount of repairs to serve in lieu of market value, we used this language:

“In the absence of other competent proof of market value, we have held that the difference in market value before and after the collision may be established by a showing of the amount paid in good faith for the repairs necessitated by the collision. Payne v. Mosley, 204 Ark. 510, 162 S. W. 2d 889, and Kane v. Carper-Dover Merc. Co., supra. Under these cases appellee is entitled to recover only the sum of $475 for damages to the car, as that is the greatest total amount shown to have been paid for repairs. So, the item of $700 must be reduced to $475.”

III.

Appellant’s third point relates to his claim against Mr. and Mrs. Sexton. He insists that he should recover from them for breach of warranty, since the deed they executed to him under date of September 15, 1964, contained no language concerning the outstanding lease to Altom. In Ark. Trust Co. v. Bates, 187 Ark. 331, 59 S. W. 2d 1025, this language appears:

“It is not admissible to show by parol evidence that a covenant against incumbrances was not intended by the parties to apply to a particular incumbrance, in the absence of fraud or mistake, where no exception to that effect is contained in the deed itself. Hardage v. Durrett, 110 Ark. 63, 160 S. W. 883, L. R. A. 1916E 211, Ann. Cas. 1915D 862; Musial v. Kudlik, 87 Conn. 164, 87 Atl. 551, 34 Ann. Cas. 1914D 1172; Crawford v. McDonald, 84 Ark. 415, 106 S. W. 206.” (Emphasis our own.)

It is true that in the absence of fraud or mistake the Sextons could not introduce parol evidence to show that the covenant in the deed was supposed to exempt the particular lease, because the deed itself did not con: tain such exception. But we think that, as between the parties, the Sextons offered sufficient evidence to justify the Chancellor in holding that there was a mistake. The Sextons testified that they told Scott of the lease held by Altom. Scott’s attorney drew the deed and the Sextons relied on Scott to have the correct language in the deed. His failure to have his attorney put the language in the deed constituted á mistake. There was also sufficient evidence to justify the Court in reforming the deed from the Sextons to Scott to show the Altom lease. We find no merit to Scott’s appeal against the Sextons.

Affirmed.

Amsler, J., not participating.

      There is a serious question as to whether Scott has any right to appeal as against Altom, because Altom has signed a statement in this Court that he has already received the $150.00, which was the amount of his judgment against Scott. Scott claims that he deposited this amount with the Chancery Clerk in lieu of a supersedeas bond and that the money was not to be paid to Altom. Since the case is not briefed on the issue of Scott losing his right of appeal by payment, we have considered the case on the three points briefed, because even if Scott by paying $150.00 had lost his right to appeal as against Altom, still such payment would not impair Scott’s right to appeal against the Sextons; and that is one of Scott’s points.

      In 79 A. L. R. 2d 677, there is an annotation entitled: “Measure and elements of damages, in action other than one against a carrier, for conversion, injury, loss, or destruction of livestock.”


author: Ed. F. McFaddin, Justice.

text:
    City of Springdale v. Duncan
    5-3872
    401 S. W. 2d 747
    Opinion delivered April 25, 1966

      Crouch, Blair & Cypert, for appellant.

      Charles L. Godo and Carl Bowner, for appellee.
   Ed. F. McFaddin, Justice.

The question here is whether certain lands owned by the City of Springdale, Arkansas, are exempt from taxation. The City of Springdale (hereinafter called “City”) filed this suit against the County Officials of Benton County to enjoin them from collecting taxes on the lands owned by the City. The Chancery Court denied the exemption claim of the City, and this appeal resulted.

The City has had a number of problems in the matter of sewage disposal; and in February 1963 the City purchased 37 2/3 acres from Jack Benton, which land was acquired for use at some time in the indefinite future as a buffer zone for oxidation ponds or an irrigation spray area; but no such use has ever been made of the lands. Instead, the City leased the lands to Jack Benton for a 5-year term, with the option to Benton to renew the lease for another 5-year period. The Mayor of the City admitted that he knew of no specific plan for the use of this Benton property except “some day we may need this; 10 years or 100 years from now.” We quote questions propounded by the Court and candidly answered by Mayor Davis:

“Q. Now in connection with your negotiated purchase of the Benton property, when you say it was necessary to agree to some lease back arrangement with Benton, did those negotiations result in the City’s purchase and lease back to Benton, did those negotiations embrace any consideration- and accounting for the possible need of the City for this land for oxidation and spray purposes so that if the need arose the lease back to Benton would not be an impediment for its use for spray and oxidation purposes?
“A. Your Honor, there was a consideration that we, during the leased period, would not use it in such a manner as to interfere with his lease. Now, I don’t recall the exact terms of . the lease.
‘ ‘ Q.‘ You may not have the information, Mr. Davis. What I’m trying to establish is this: if I’ve followed your testimony thus far, the City bought that property and then almost simultaneously leased it back to him for five years with an option to renew for an additional five years. Now the question I need to have answered is this: suppose the City needs this land, all of it or any part of it, to put oxidation ponds and set up spray treatment, how are you going to dp that with that lease to Benton? Do you follow my question?
“A. Yes, sir.
“Q. All right. Can you answer it? Suppose Benton says: ‘Hold on, I’ve got this leased for five years.’ And says, ‘I know I’m going to renew it for another five years. . . ’
“A. It leaves the City in the same position as when we had to condemn it originally.”

Thus, we have a case wherein the City owns title to land which it has leased to another, and which lands have never been actually used for City purposes, but which the City is holding as a protection measure if the property should ever be needed in the future. The question is whether such property is exempt from taxation.

Art. 16, § 5 of our Constitution says:

“. . . Provided, further, that the following property shall be exempt from taxation: Public property used exclusively for public purposes; churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school purposes; and buildings and grounds and materials used exclusively for public charity.”

Art. 16, § 6 of our Constitution says: “All laws exempting property from taxation other than as provided in this Constitution shall be void.”

Some of our cases arising under the above constitutional provisions are: Brodie v. Fitgzerald, 57 Ark. 445, 22 S. W. 29; School Dist. of Ft. Smith v. Howe, 62 Ark. 481, 37 S. W. 717; Pulaski County v. First Baptist Church, 86 Ark. 205, 110 S. W. 1034; Robinson v. Indiana etc. Mfg. Co., 128 Ark. 550, 194 S. W. 870; Hope v. Dodson, 166 Ark. 236, 266 S. W. 68; Hudgins v. Hot Springs, 168 Ark. 467, 270 S. W. 594; Hogue v. Housing Authority, 201 Ark. 362, 144 S. W. 2d 49; Yoes v. Ft. Smith, 207 Ark. 694, 182 S. W. 2d 683; Hilger v. Harding College, 231 Ark. 686, 331 S. W. 2d 851; and Wayland v. Snapp, 232 Ark. 57, 334 S. W. 2d 633.

Prom these cases it is clear that before the City can successfully claim exemption from taxation, the property must have been used for a public purpose: contemplated future use is not sufficient. Here, the Benton, tract has never been used for a public purpose and may never be so used. We therefore conclude that the Chancery Court was correct in refusing to allow exemption status to the Benton property.

      Ark. Stat. Ann. § 84-206 (Repl. 1960) is supposed to be in definition of the property exempted by this constitutional provision.


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

text:
    Ark. State Highway Commission v. Parks
    5-3851
    401 S. W. 2d 732
    Opinion delivered April 25, 1966

      George Green and Don Langston, for appellant.

      Howell, Price & Worsham and Clark, Clark & Clark, for appellee.
   George Rose Smith, Justice.

This is an eminent domain proceeding in which the Highway Commission is taking, for a highway right-of-way, 10.89 acres of a 41-acre tract and 8.09 acres of an 84-acre tract. The jury awarded the owners $8,000 for one taking and $6,000 for the other. The verdicts were somewhat smaller than the landowners’ claims but more than double the amounts deposited in court by the Commission as the estimated value of the lands being acquired. For reversal the appellant insists that it was prejudiced by the introduction of incompetent evidence.

Morris High, an expert witness, on direct examination gave his opinion about the value of the lands. On cross examination counsel for the condemnor elicited from the witness an admission that in reaching his conclusion he had considered the number and value of the lots that could be created if the tracts were platted and dedicated as residential subdivisions (which had not been done). Inasmuch as that method of evaluation is not one that may properly be submitted to the jury, it is now contended that the court should have sustained counsel’s motion to strike the witness’s testimony. This is the argument we rejected in Arkansas State Highway Comm. v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966), in an opinion handed down after the trial of the case at bar. We need not repeat our discussion.

The Commission’s second point is that the court erred in permitting the landowners to introduce a plat of Earl’s Lakeside Subdivision. That subdivision is an undeveloped tract lying near the appellees’ property. Counsel for the landowners, in offering the plat, stated that they wanted to show how many lots could be carved from their clients’ lands. The court instructed the jury that the plat was admitted for that purpose. Earlier there had been proof that lots in Earl’s Lakeside Subdivision were selling for $900 each, but the court later directed the jury not to consider that testimony.

We think the court erred in allowing the plat to be introduced. When the land being condemned has not itself been dedicated as a subdivision it is reversible error for the trial court to allow the property owners to exhibit to the jury a plat showing how the land could be laid off in lots and blocks. Arkansas State Highway Commn. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86 (1958) . Such a projected plat is misleading to the jury in that it does not take into account the various expenses for streets, utilities, and similar improvements that could not be explained to the jury without bringing a host of collateral issues into the case.

There is even less reason for allowing the landowner to reinforce his demand by showing how a wholly different piece of property has been subdivided. The two tracts directly involved in this case have hot been platted. They are still raw acreage in a locality where, according to the proof, there is much other land also available for residential use. For that matter, Earl’s Lake Subdivision exists more on paper than in reality. A few lots may have been sold, but there is no indication that actual development is in progress. To the contrary, the testimony and the photographs portray it as undeveloped acreage similar in all material respects to the tracts owned by the appellees. Under the Watkins case the landowners could not have tempted the jury to speculate upon the potential value of their land by proving how it could be subdivided. We cannot, consistently with the Watkins opinion, permit the appellees to achieve the same end by showing how a different piece of land has been platted.

We cannot say with confidence that the error was not prejudicial. Witnesses for the Commission fixed the landowners ’ damages at sums greatly below the verdict. There is no proof that any other comparable land in the immediate vicinity has brought a price approaching the plane of values reflected by the jury’s verdict. It is certainly possible 'that the jury arrived at an inflated appraisal of the landowners’ damages by giving weight to the inadmissible plat of the neighboring subdivision. Our rule is that error is assumed to be prejudicial unless we can say with assurance that it is harmless. Girard v. Kuklinski, 235 Ark. 337, 360 S. W. 2d 115 (1962). Here the presumption of prejudice has not been overcome.

Reversed.

Amsler, J., not participating.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. In my opinion it was not reversible error for the trial court to allow the “plat” to be introduced solely for the purpose of showing the number of lots that could be carved from subject land. Certainly the land owner would have been permitted to give that information to the jury had he known it.

If the witness had been allowed to go further and testify as to the value of the lots (shown on the plat) that, unquestionably, would have constituted reversible error, as was held in the Watkins case. Such is not the situation in this case since (as stated in the original opinion) the court directed the jury not to consider such testimony.

As I read the Watkins case the decision does not rest on the wrongful introduction of the plat, but on the introduction of value testimony.


author: George Rose Smith, Justice.

text:
    Rowe v. Gose
    5-3874
    401 S. W. 2d 745
    Opinion delivered April 25, 1966

      James E. Evans, for appellant.

      Hugh R. Kincaid, for appellee.
   George Rose Smith, Justice.

This is a suit brought by the appellee, H. H. Gose, against the appellants, James L. Rowe and wife, for specific performance of a contract by which Rowe agreed to sell a house and lot in Springdale to Gose for $18,750. In the court below the Rowes asserted that the contract was void because it involved their homestead and was not signed by Mrs. Rowe. Under our statute the wife’s failure to join in the contract renders it absolutely void with respect to the homestead. Ark. Stat. Ann. § 50-415 (1947); Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433, 38 Am. St. Rep. 241 (1893). The chancellor rejected the attack on the contract on the ground that the defendants failed to sustain their burden of proving that the lot in question does not exceed a quarter of an acre in area. The correctness of that ruling is the decisive question on appeal.

The defendants duly pleaded the asserted invalidity of the contract. At the trial they proved, without dispute, that title to the house and lot was in Mr. Rowe’s name and that they had occupied the property as their home for some ten years preceding the trial. In the contract of sale the land was described as being a part of two specified lots in Springdale, “fronting approximately 80 feet on Emma Avenue, and known as 814' Emma Avenue.” Neither side attempted to prove the exact depth of the property; that issue was simply left unexplored at the trial.

In holding that the Rowes failed to prove the claimed exemption the chancellor said in his memorandum opinion: “In a long line of cases our Court has uniformly held that the burden of proof to establish claim of homestead rests upon the claimant!. It has also been repeatedly held that all of the elements combining to make a homestead must be established, including, a showing that the claimed homestead property falls within the limits of quantity and value.” Among the cases cited by the chancellor those most nearly in point are Fisher v. Knight, 211 Ark. 465, 200 S. W. 2d 799 (1947), and Barnhart v. Gorman, 131 Ark. 116, 198 S. W. 880 (1917).

Neither of the cases cited can be said to control the one at bar. In Fisher v. Knight the homestead claimant had only a life estate in the land, which she occupied jointly with her son, who owned the remainder. We held that the chancellor’s rejection of the exemption was not against the weight of the evidence. In the Barnhart case the claim was not to the land itself; it was to the proceeds of a voluntary sale of the land. The property had brought $7,500. The claimant had $3,750 of that money in her possession. We held that the claimant was not entitled to the rest of the purchase money without showing that the homestead did not exceed a quarter of an acre. It will be noted that the claimant did receive more than the constitutional minimum of $2,500.

In the case at hand we think the chancellor’s complete rejection of the asserted homestead was unduly severe. Homestead laws are to be liberally construed in favor of the exemption. Yadon v. Yadon, 202 Ark. 634, 151 S. W. 2d 969 (1941). The legislature has taken a lenient attitude in the matter, permitting a debtor to claim his homestead even after he has allowed it to be sold under execution. Ark. Stat. Ann. § 30-210 (Repl. 1962). “He may occupy the homestead until he is sought to he evicted before he is required to act.” Spurlock v. Gaikens, 146 Ark. 50, 225 S. W. 17 (1920).

Our decisions have likewise been solicitous of the homestead right. In Hardin v. Hancock, 96 Ark. 579, 132 S. W. 910 (1910), we approved the trial court’s action in setting apart the homestead on his own motion, pointing out that as far as the creditor is concerned it is immaterial who defines the exact boundaries of the homestead. In other pertinent cases we have remanded the matter to the trial court to permit the claimant to select a homestead within the constitutional limits. Starr v. City Nat. Bank, 159 Ark. 409, 252 S. W. 356 (1923); Willis v. State, 67 Ark. 234, 54 S. W. 211 (1899).

These appellants unquestionably proved that the contract of sale was void with respect to at least part of their land. Even if the lot (admittedly worth more than $2,500) exceeds a quarter of an acre in area, it does not follow that the homestead exemption is wholly unavailable. The owners are in any event entitled to select a tract not exceeding the constitutional minimum of a quarter of an acre. Ark. Const., Art. 9, § 5. The lot is 80 feet wide. We do not know its depth, hut it could be as much as 136 feet deep without embracing more than a fourth of an acre. If the lot exceeds the minimum exemption the excess may he so slight that the appellee would have no desire to purchase it. We are of the opinion that the appellants adduced sufficient proof to make a prima facie case, shifting to the appellee the burden of going forward with the evidence if he wished to assert a claim to part of the property. See Whitlock v. Gosson, 35 Neb. 829, 53 N. W. 980 (1892).

The decree is reversed and the cause remanded for further proceedings with reference to the homestead claim.


author: Paul Ward, Justice.

text:
    Smith v. State
    5181
    401 S. W. 2d 749
    Opinion delivered April 25, 1966

      John Mac Smith, for appellant.

      Bruce Bennett, Atty. General; Lance Hanshaw, Asst. Atty. General, for appellee.
   Paul Ward, Justice.

Appellant Larry Smith, a nineteen year old Negro, was charged with the killing of Carl Van Young, a white man, on February 29, 1964. Young, who worked as a night watchman near West Memphis, was found fatally wounded close to Highway 70 early in the morning, and his wrecked car was found near Forrest City.

At the trial on September 28, 1965 appellant was found guilty of murder in the first degree and sentenced to death by electrocution.

On appeal appellant seeks a reversal, relying on three separate grounds, which we now proceed to discuss.

One. In appellant’s motion for a new trial there appears this statement:

1 ‘ The insanity of the defendant having been specifically pleaded as a defense and the State of Arkansas having introduced into the record the testimony of two psychiatrists . . . and the defense also having introduced testimony relative to the sanity of the defendant, the court committed error in refusing to give defendant’s requested instruction no. 1 . . . .”

The instruction referred to above submitted to the jury the question of the sanity or insanity of appellant. We deem it unnecessary to set out the requested instruction for two reasons. First, it was, in substance, approved in Bell v. State, 120 Ark. 530 (p. 553), 180 S. W. 186; Hall v. State, 209 Ark. 180, 189 S. W. 2d 917, and, secondly, the State does not deny “that the requested instruction denied by the court contained the law in Arkansas for the legal test of insanity.” It is the contention of the State, however, that “there is no testimony calling for such an instruction.” We do not agree.

Appellant was sent to the State Hospital where he was under observation for thirty days. At the end of that period the doctors were not satisfied, and the observance was extended for another thirty days. The final finding was that appellant knew the difference between right and wrong, but that finding was somewhat modified by the examining doctors. It was agreed by the doctors that appellant “suffered from a schizoid personality, and this means that he had an active psychosis or disease.” One of the examining doctors, on cross-examination, stated: “Schizoid personality means a certain type of character throughout life which rarely, if ever, is. altered and cannot be changed by any form of therapy. The depth of the psychotic pathology allows these persons little room to maneuver under conditions of stress except into the actual psychosis.” Another examining doctor testified “schizophrenia is a major mental illness and is fairly common.” He also stated that appellant was not a normal person in his opinion. Added to the above medical statements, is the testimony of the deputy sheriff and the parents of appellant that he was not a normal person.

In the Hall case supra, this Court, after quoting Dr. Kolb as saying the defendant “knew right from wrong and can refrain from doing wrong if he so desires,” made this statement:

“A number of physicians and lay witnesses testified in his behalf which tended to show that he had a psychopathic personality or that there was insanity in his family and that he acted strangely at times, tut after all it was a question for the jury, and by its verdict he was found to be sane, and being supported by substantial evidence it must be permitted to stand.” (Emphasis added.)

It is our opinion, therefore, that the case must be reversed because of the court’s failure to give the instruction as requested.

Since, as above indicated, the case must be reversed and since it must be remanded for another trial, we deem it appropriate to examine briefly the other two assignments of error.

Two. It is our opinion that, upon a retrial, the confession of guilt made by appellant should not be introduced in evidence under the same facts and circumstances revealed by this record. In reaching this conclusion we take into consideration various facts and circumstances; (a) He was arraigned before the municipal court on March 2, 1964 when he pleaded not guilty; (b) He spent over five months in jail, without the aid and advice of counsel before the information was filed against him in circuit court; (c) The deputy sheriff in charge of appellant very properly advised appellant he needed counsel and to secure same, yet it seems no effort was made to help him do so; (d) It was not until September 4, 1964 that counsel was appointed to represent appellant. From that date he was ably represented, but the damage (from appellant’s viewpoint) had already been done. In Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, the Supreme Court of the United States used this language:

“ ‘ ... We hold that when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession —our adversary system begins to operate, and under the circumstances here, the accused must be permitted to consult with his lawyer.’ ”

The above language is, we think applicable to the facts in the present case. When appellant was arraigned on March 2, 1964 the investigatory phase ended and the accusatory phase began. Although the officer having custody of appellant very properly informed him of his right to have a lawyer and to remain silent, those rights were thereafter, from a practicable standpoint, ignored. No provision was made for a lawyer until much later. In the meantime appellant was told he was in bad trouble and that he would have to come up with the pistol. It is admitted the State’s witness told appellant he was a prime .suspect before he had said “anything incriminating.” It was later when appellant admitted his guilt.

We realize the difficulties encountered by law enforcement officers in cases of this nature, and particularly those officers who have felt it was a part of their duties to solve reported crime. However new guide lines in this field have been announced in recent years by the courts which often present borderline questions, but we feel it our duty to resolve doubtful questions in favor of individual rights and their constitutional safeguards.

Three. Appellant contends it was error for the trial court to refuse to quash the petit jury panel because the evidence shows Negroes were discriminated against in selecting the jurors.

Conceding, for the sake of brevity and for the purpose of this opinion, that such discrimination was shown to be the practice in Crittenden County for the past twenty or thirty years, we do not feel compelled to conclude that alone proves discrimination was practiced in this instance. In fact we do not think the evidence supports such conclusion.

The three jury commissioners selected seven Negro jurors to serve, and the only testimony tending to show they were “deliberately included” was that they were known to be cooperative with white people and that the trial court told the commissioners to place some Negroes on the panel. True, it would have been proper for the court to tell the commissioners to disregard race and color. This testimony, however, amounts only to conjecture and merely casts a suspicion on the motives of the commissioners, and we have many times held such has no probative value. In a situation of this kind we are inclined to the view that appellate courts should presume those in charge of law administration and law enforcement to be honest and sincere in the discharge of their duties. If it were possible, and if the disciples Peter, James and John had selected the jurors in this instance, some people would most likely question their motives. We have no illusions that this illustration will or should solve all similar issues arising in the future, but we do believe it could be helpful as a “guide line.”

Finding no substantial evidence to the contrary, we are unwilling to say the, commissioners discriminated against the Negroes, either by deliberately including or excluding them as jurors.

The cause is reversed and remanded for further proceedings consistent with this opinion.

Beversed.


author: Frank Holt, Justice.

text:
    Producers Cooperative, Inc. v. Driver
    5-3834
    401 S. W. 2d 730
    Opinion delivered April 25, 1966

      Swift & Alexander, for appellant.

      Oscar Fendler, for appellee.
   Frank Holt, Justice.

This action is a sequel to the case of Driver v. Producers Cooperative, Inc., 233 Ark. 334, 345 S. W. 2d 16. In that case an action was brought by a group of preferred stockholders, the present appellees, to compel the Cooperative and its directors, the present appellants, to comply with its charter and bylaws by the payment of dividends upon its preferred stock and by establishing a revolving fund to be used for retirement of the preferred stock. There the lower court held that the Cooperative’s directors had not abused their discretion as to the payment of dividends and the establishment of a revolving fund. Upon appeal we reversed and remanded for further development “to the end that appropriate relief may be afforded to the plaintiffs [appellees herein] with respect to the establishment of the revolving fund and the payment of dividends upon the preferred stock,” The present appeal results from an order of the chancellor made in compliance with our mandate.

On September 18, 1961, following our mandate, the Cooperative filed a proposed plan which provided, inter alia, for the establishment of a revolving fund. It was proposed that the fund would be established by paying into it from retained patronage the sum of $1.00 for each bale of cotton ginned by the Co-op for the fiscal years 1957-1961 inclusive. The proposed plan further stated: “The Cooperative Gin will also continue to pay $1.00 per bale for the fiscal years ending on June 30, 1962 and 1963.” After numerous hearings, appellants’ proposed plan was in substance approved. On February 20, 1963 the court entered its first order directing, inter alia, the Co-op to pay $15,097.00 ($11,872.00 for the years 1957 through 1961 and $3,225.00 for the year 1962) to a special master so he could then retire certain preferred stock certificates; that $12,650.00 be paid in cash and the balance, $2,447.00, plus $1.00 per bale for cotton ginned during the fiscal year ending June 30, 1963 be paid to the special master no later than September 1, 1963. This order was approved as to form by all parties and there- was no appeal.

On September 16, 1963 the court entered another order finding, inter alia, the Co-op had not complied with that part of the February 1963 order which directed the Co-op to pay the $2,447.00 balance. However, due to the financial condition of the Co-op, the court permitted this balance to be paid to the special master no later than September 1, 1964 or state in writing any reason for failure to pay the balance by that date. It appears this order met the approval of the parties. Upon noncompliance with this order the court on November 30, 1964 entered a third order requiring that the Co-op promptly pay to the special master the $2,447.00 balance plus $2,410.00 which represents the number of bales of cotton ginned for the fiscal year ending June 30, 1964. Thus, the court ordered the appellants to pay the special master a total of $4,857.00 promptly subject to the further orders of the court relating to the revolving fund. It is from this decree that appellants bring this appeal.

For reversal the Co-op and its directors contend thát they have substantially complied with the court’s orders and to comply with that part of the order respecting the $4,857.00 payment would necessitate violation of the Co-op’s charter and by-laws which set the formula for the distribution of its earnings. They argue that payment of a dehydrator ■ loss in the amount of $52,244.06, and the later expenditure of $100,000.00 in 1964 to remodel the gin, depleted the reserve fund to such an extent that the directors are unable to comply with the court’s order concerning the payments into the revolving fund. We cannot agree with appellants’ contention that they are unable to make the payments to the special master as directed. Somewhat similar contentions of inability to pay were made in the previous case before us. There we ordered that a plan be initiated to pay dividends and retire the preferred stock. A plan was approved by the court. The chancellor in the November 1964 order found that: “ * * * the Co-op gin can pay the $2,447.00 balance to the Special Master and should pay it forthwith.” The court also found that: “ * * * the Co-op gin for the fiscal year ending June 30, 1964 ginned 2,410 bales of cotton and has failed to pay the Special Master $1.00 per bale as previously provided in the Orders of this Court of February 20, 1963, and by agreement of all interested parties. The defendants [appellants] shall also pay that sum of money forthwith to the Special Master.”

Upon a review of the evidence de novo we cannot say that the finding of the chancellor that the Co-op could and should pay these sums in the amount of $4,-857.00 is against the preponderance of the evidence. Bather, we think the finding of the chancellor is in accord with the evidence and the case of Driver v. Producers Cooperative, Inc., supra. We consider our opinion in that case as being controlling and the law in the present case. Collie v. Little River Co-op, Inc., 236 Ark. 725, 370 S. W. 2d 62. See, also, Meyers v. Meyers, 214 Ark. 273, 216 S. W. 2d 54.

Appellants also argne that the fiscal year 1957 was erroneously included in its plan which was submitted to the chancellor for approval. Thus, the $2,447.00 balance should have credited against it the sum of $2,738.00 which sum represents the number of bales of cotton ginned at $1.00 per bale for that fiscal year. We find this contention without merit. Appellants included this figure as a part of their own detailed plan which the court finally accepted after numerous protests and hearings. Nor does it appear there was any appeal taken or objection made to the court’s February and September 1963 orders that the Co-op pay $2,447.00 to the special master.

In the February 1963 order the chancellor refused to allow a fee to the attorney for the appellees. However, the court appointed him special master and directed that he retain 5% of the gross sum of money paid to him for retiring the preferred stock. On this appeal it is strenuously insisted that appellees ’ attorney should be allowed a fee because the directors have been very dilatory in carrying out the orders of the court and the directors ’ actions have not been in good faith, In giving serious consideration to this contention we are of the view, as in our previous opinion, that the request for an attorney’s fee should be refused.

The decree of the chancellor is in all things affirmed.


text:
    City of Little Rock v. Miles
    5-3864
    401 S. W. 2d 741
    Opinion delivered April 25, 1966

      Joseph Kemp and Perry Whitmore, for appellant.

      Phillip Carroll, for appellee.
   Frank Holt, Justice.

This is a zoning case in which the appellees sought the rezoning of their property from an E-l Quiet Business to F Commercial classification. The Planning Commission denied the appellees’ application and on appeal the Board of Directors of the City of Little Rock affirmed the action. The appellees then filed suit in the chancery court seeking to restrain and enjoin the appellant from denying them the use of their property for F Commercial purposes. From the decree granting the injunction appellant brings this appeal.

For reversal appellant contends that the chancery court erred in its finding that the refusal of appellant to rezone appellees’ property was arbitrary. On appeal we determine only whether the chancellor’s finding that the • city acted unreasonably and arbitrarily is contrary to the preponderance of the evidence. Lindsey, et al, v. City of Camden, 239 Ark. 736, 393 S. W. 2d 864.

The appellees’ property is located at the northeast intersection of Roosevelt Road (25th Street) and Gaines Street. Situated upon the property are two old apartment houses. Across an alley and adjacent to the property on the east is a Gulf Oil Service Station. Directly across Roosevelt Road from this business is another service station occupied by the American Oil Company. Immediately south and across Roosevelt Road from the property is a house which has been abandoned for several years. Diagonally and to the southwest is an abandoned high school. All of the half block facing Gaines Street, of which appellees’ property is a part, is zoned E-l Quiet Business. The other half of the block, which faces Arch Street or eastward, is zoned F Commercial. These two half blocks are separated by an alley. As stated, the property adjoins Roosevelt Road, a thoroughfare with a traffic count of approximately 17,000 to 18,-000 vehicles per day which appears to be increasing. The property is adjacent to a large area which is zoned and being used for commercial purposes. It seems undisputed that the highest and best use of the property is for commercial purposes.

In refusing to rezone this property the appellant argues that the present zoning meets the community’s commercial needs and that the present classification (E-l Quiet Commercial) is a proper attempt to limit the property to a. use which is reasonable compatible with the “F Commercial” uses lying eastwardly across the alley and yet somewhat in harmony with the residential uses of property lying westwardly across Gaines Street. In other words, appellees’ property should be used as a buffer to protect other property owners in this area. It is significant that not a single witness who owned property in this area appeared to substantiate appellant’s position or protest the application. To the contrary, there were property owners in the affected area who testified that they approved of the rezoning and it would not be harmful to their property. It appears undisputed that this area includes older residential parts of the city and is in a state of transition.

In approving rezoning in City of Little Rock v. Andres, 237 Ark. 658, 375 S. W. 2d 370, from “C-2 Family District” to “F Commercial” we said:

“As Broadway changed from a residential street to an important commercial thoroughfare, property adjoining the street became progressively undesirable as a family district. * * *
All of the property is worth very little as residential property. ’ ’

A number of the factors present in the Andres case are present in the case at bar. Furthermore, it is noted that the degree of transition requested by appellees’ application is actually less of an impact upon rezoning than that sought and approved in the Andres case.

An inconsistency in appellant’s position is indicated by the fact that other nearby property has been zoned for commercial purposes without any request from the property owners for this classification. It appears that such property, which is not on the thoroughfare, is not as suitable for commercial purposes as is appellees’.

It is our well settled rule that the findings of the chancellor, who sees and hears the witnesses, will not be disturbed on appeal unless against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517. It necessarily follows that this decree must be affirmed for we cannot say that the chancellor’s finding is contrary to the preponderance of the evidence.

Affirmed.


author: Osro Cobb, Justice.

text:
    Francis v. City of Benton
    5-5200
    401 S. W. 2d 729
    Opinion delivered April 25, 1966

      J. B. Milham, for appellant.

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

The record in this case reflects that appellant was charged and convicted in the Municipal Court of Benton of an offense committed on March 21, 1964, of driving a vehicle while under the influence of intoxicating liquor. Thereafter appellant was charged and convicted in the same court for a subsequent offense on March 3, 1965, of driving a vehicle while under the influence of intoxicating liquor. Appellant seasonably appealed the second conviction to the Circuit Court. There, upon trial, the jury returned the following verdict:

“We, the jury, find the defendant guilty of driving while intoxicated, subsequent offense, and fix his punishment at $250.00 and imprisonment of 10 days.”

We note that the punishment fixed by the jury is the minimum punishment upon conviction for a subsequent offense of this character under the provisions of Ark. Stat. Ann. § 75-1029 (Eepl. 1957).

At the outset of the trial in the Circuit Court, the state’s attorney in his opening statement was permitted, over the objection of appellant, to advise the jury that appellant was on trial for a subsequent offense. Appellant in his motion for a new trial preserved this contention of error by the trial court. It is clear from the language of the verdict returned by the jury that it had in fact been informed of previous conviction of the appellant for a similar offense.

On October 18,1965, we decided the case of Miller v. State. 239 Ark. 836, 394 S. W. 2d 601 (1965), which is now controlling as to trials of repeat or subsequent offenders. In that case we made it clear that the jury should not be informed of a defendant’s prior criminal record during his trial for a current offense. We quoted with approval from Lane v. Warden, Md. Penitentiary, 320 F. 2d 179 (4th Cir. 1963) the following:

“We reach the conclusion that under the facts of this case the reading to the jury, at the commencement of Lane’s trial, of that portion of the indictments relating to his prior convictions destroyed the impartiality of the jury and denied him due process of law.”

The trial of the instant case was completed on October 21, 1965, before the printing and distribution of our decision in Miller v. State, supra, and could hardly have been conducted in the light of the new procedural rules announced by us in the Miller case.

However, we have concluded that the principles announced in Miller v. State, supra, are applicable here and the judgment must therefore be reversed and the case remanded for a new trial.

Reversed and remanded.


author: Guy Amsler, Justice.

text:
    Dismute v. Furlow
    5-3866
    401 S. W. 2d 743
    Opinion delivered April 25, 1966

      Spencer & Spencer, for appellant.

      W. C. Medley, for appellee.
   Guy Amsler, Justice.

On the 21st day of October, 1959, W. L. Furlow, appellee, conveyed to appellants Eddie Hugh Dismute and wife, Christine Roberta Dis-mute, a house and lot in Calhoun County, Arkansas,

The warranty deed recited a consideration of $7,-200; $120 cash and the balance in installments of $60 each month beginning December 1, 1959, and ending October 1, 1969. According to the terms of the deed past due payments were to bear 8% interest and if grantees were more than 90 days in default grantor was authorized, at his option, to declare the entire debt due and payable immediately and to begin foreclosure proceedings on the vendor’s lien which was retained. Provision was made for grantees to carry $4,000 fire insurance on the property “payable to the vendor as his interest may appear.” In the lower left hand corner of the deed is written “accepted this 31st day of October, 1959,” signed by the Disunites.

Simultaneous with, or prior to, the sale and purchase grantees moved into the modest dwelling located on the premises and insurance was taken out in compliance with the contract.

Appellants continued to reside in the dwelling for a little over four years. Payments were made somewhat irregularly and at the time the home was totally destroyed by fire on November 10, 1963, they were about $1,000 in arrears. Sometime during this period of occupancy the Dismutes permitted the $4,000 insurance to lapse. Furlow, learning of this, obtained $3,000 fire insurance on the house at his own expense.

Following the fire a check from the insurance company for $3,000, covering the loss, was made payable to Furlow and the Dismutes. There was a disagreement over ownership of the $3,000 and litigation followed.

Appellants brought suit in the Calhoun Chancery Court praying that the vendor’s lien retained in the aforementioned deed be cancelled, as being usurious and that they be awarded the $3,000 proceeds from the insurance policy.

The Honorable ft. W. Launius heard proof in the case on April 28, 1964, but did not enter a decree before his demise the following month. By agreement of the parties the case was submitted to the Honorable Jim Eowan, who succeeded Chancellor Launius, on the pleadings and a transcript of the record previously made.

The trial court resolved the issues against appellants and decreed a foreclosure of the vendor’s lien and payment of the $3,000 to appellee. After crediting payments previously made by the Dismutes, the insurance money and proceeds from sale of the parcel of land a deficiency judgment in the amount of $2,270 was entered against appellants. This appeal followed.

Appellants’ principal point urged for reversal is that the transaction was usurious, and the court erred in refusing to cancel the lien retained in the deed and in foreclosing the lien and awarding judgment against appellants.

To be more specific appellants say “the only real question is whether a sale price of $4,000 was agreed upon.” To support their contention that $4,000 was the price agreed on, appellants presented three witnesses. Appellant Eddie Dismute, a laborer, testified that before the deed was executed Furlow agreed to sell the place for $4,000 and that the remainder of the $7,200 recited in the conveyance was interest. Jethro McCrae, math and science teacher, former school principal and father of Christine Dismute, said he was present when Mr. Furlow talked with the Dismutes and he, Furlow, said ‘ ‘ he would take $4,000 if they had the money to pay for it.” Christine Dismute, an appellant, testified that the purchase price was $4,000. “I signed the deed with the understanding the house was sold for $4,000. I read the deed before I signed it. I was teaching at the High School at the time. I am a college graduate.”

Appellee Furlow claims that $4,000 was never discussed except regarding insurance and that the sale was $7,200 just as set out in the agreement. There is no doubt that the contract is usurious if $4,000 was the price agreed upon. The terms of the deed are clear and unambiguous. $7,200 is recited as the consideration. $60 per month for 118 months is easily understood. 8% interest on delinquent payments is clear. Certainly a college graduate could comprehend the terms of the written agreement and there is no suggestion that she and her husband were coerced or misled. They may have entered into an improvident contract but the law offers no relief for that unless there are extenuating circumstances such as fraud or deception.

Appellants contend that they are only required to show usury by a preponderance of the evidence. They rely on Tisdale v. Tankersley, 192 Ark. 70, 90 S. W. 2d 225; Tisdale v. Maness, 192 Ark. 465, 92 S. W. 2d 380; Haley v. Greenhaw, 235 Ark. 481, 360 S. W. 2d 753; and similar holdings in support of their theory of the law.

On the other hand appellee takes the position that the learned Chancellor was correct in applying the “clear and convincing” rule. In support of this are Simpson v. Smith Savings Society, 178 Ark. 921, 12 S. W. 2d 890; and Baxter v. Jackson, 193 Ark. 996, 104 S. W. 2d 202. There is an extensive summary of our holdings in usury cases in Sloan v. Sears Roebuck and Company, 228 Ark. 464, 308 S. W. 2d 802.

Our conclusion in this case to the effect that the Chancellor’s decision is not contrary to a preponderance of the evidence obviates the necessity of reaching the question of which rule on the quantum of proof applies. Also an extended discussion on what might appear to he conflicts in previous opinions would serve no useful purpose.

Affirmed.

Cobb, J., disqualified and not participating.


author: Carretón Harris, Chief Justice.

text:
    Byrd v. State, ex rel
    3817
    402 S. W. 2d 121
    Opinion delivered May 2, 1966

      Nell Powell, fox’ appellant.

      Bruce Bennett, Attorney General, Win. Powell Thompson, Asst. Atty. General, for appellee.
   Carretón Harris, Chief Justice.

The question in this litigation is whether appellant, Bay Byrd, is eligible to serve as a member of the School Board of Cotter School District No. 60, and as a member of the Baxter County Board of Education. Appellant first commenced serving as a member of the Cotter district board in 1945, and he was most recently elected to serve in the position in September, 1960. Byrd has been serving as a member of the Baxter County Board of Education since 1958, and was most recently elected to that position in September, 1963. Appellant lias also been a member of the Baxter County Board of Election Commissioners since 1960, and was most recently appointed to that position in October, 1964. In January, 1965, the state, through the Prosecuting Attorney for the Sixteenth Judicial District, instituted quo warranto proceedings against Byrd, seeking to remove him from the offices of the school board and the county board of education. On trial, the court held that the acceptance of the office as a member of the county board of education resulted in the usurpation of the office of member of the board of County School District No. 60, and that .the acceptance of the office of member of the County Board of Election Commissioners resulted in the usurpation of the office on the county board of education, and that because of the incompatibility of the offices, Byrd should be ousted from his office on the school board, and from his office on the Baxter County Board of Education. Prom the judgment so entered, appellant brings this appeal.

Appellant admits that there are two grounds upon which one who holds an office and accepts another, endeavoring to exercise the duties of both, will be ousted from the earlier position. One ground is that the holding of the offices is forbidden by the Constitution (or a statute), and the other ground for removal is that the duties of the offices are incompatible. It is here contended by appellant that the constitutional prohibition does not apply to the offices involved, and further, that no conflict or incompatibility in the duties of these particular offices exists. Since we think that clearly the offices are incompatible, there is no occasion to discuss the constitutional question.

We have held that incompatibility exists where there is a conflict of interests, which includes, inter alia, where one office is subordinate to the other. Tappan v. Helena Fed. Savings & Loan Assn., 193 Ark. 1023, 104 S. W. 2d 458. The county board of education has the authority to create local school districts, change the boundary lines of school districts, dissolve school districts, annex the territory of one district to another, appoint school directors to fill vacancies in certain instances, and perform other duties relative to changes in school districts. Ark. Stat. Ann. § 80-213, % 80-404, § 80-408 (Repl. 1960). It is obvious that a county board of education has a great deal of supervisory responsibility over a district school board, and these offices are clearly incompatible. The duties of a member of a county board of election commissioners are clearly inconsistent with becoming a candidate for the school board or the county board of education. This is true because the election commissioners are charged with the duty of selecting judges and clerks for all school elections, and are empowered to make the arrangements for conducting a school election. Ark. Stat. Ann. § 80-317 (Repl. 1960). Clearly, there is a conflict of interest when an individual, who has some part in conducting an election, becomes a candidate at that same election. In fact, this incompatibility has been recognized by the people of this state, and, in 1948, an act was initiated, and adopted, by the people, which provides, inter alia, that, “no member of a County Board of Election Commissioners shall be a candidate for any office to be filled at any general' election while serving on said County Board.” G-eneral election laws apply also to school elections. Ark. Stat. Ann. $ 80-317 (Bepl. 1960).

It is here only necessary that we determine whether the evidence supported the judgment rendered by the trial court. That court held that the offices are incompatible, and, in such event, the office-holder retains the last office accepted, where there is no controlling constitutional provision or statutory law to the contrary. 67 C. J. S. “Offices,” Sec. 23(c), P. 148-49. According to the record, the last office accepted by appellant was reappointment to the Board of Election Commissioners in 1964.

There is no error in the order of ouster.

Affirmed.

Bland, J., not participating.

      The court also found that Byrd was in default in filing his answer.

      This provision is contained in Ark. Stat. Ann. § 80-216 and 80-504 (Repl. 1960).


author: Cableton Habbis, Chief Justice.

text:
    Hansen v. Pratt
    5-3871
    402 S. W. 2d 108
    5-3871
    Opinion delivered May 2, 1966

      Hall, Purcell, Boswell & Tucher, for appellant.

      Fred E. Briner, for appellee.
   Cableton Habbis, Chief Justice.

Appellees, Lucille Slack Pratt, ~W. N. Slack, and Earnestine Slack, his wife, and appellants, Richard G. Hansen and wife, owned adjoining lands fronting on Interstate Highway 30 in Benton, Arkansas. Appellees acquired title to the lands by inheritance from their parents, and have held title since 1955. Mr. and Mrs. Hansen acquired their property by purchase on March 13, 1961, and thereafter constructed their home thereon. Hereafter, for convenience, appellees’ lands will be referred to as the Slack property, and the lands belonging to appellants will be referred to as the Hansen property. Subsequent to the construction of the home, appellees, who are non-residents of this state, instituted suit against Hansen and wife, alleging that appellants had constructed a concrete driveway, which overlapped on to the Slack property for a distance of 46 feet, just north of the highway, and they asked that appellants be required to remove the encroachment. On trial, the court found the true property line to be in accordance with a survey offered by Donald Huchingson, County Surveyor, and held that the Hansen driveway did encroach upon the Slack property. The court directed that this encroachment be removed within 60 days. From the decree so entered, appellants bring this appeal.

First, let it be said that there is no dispute but that the survey introduced by Huchingson was correct. The surveyor found that along the highway (the widest point) the encroachment amounted to 44% feet, and as the property line continued north, the encroachment narrowed to something over 26 feet. Hansen had built the driveway from the highway to his home, a distance of over 410 feet.

For reversal, it is first argued that appellees and Albert Thomas, a prior owner of the Hansen property, had agreed, between 1950 and 1954, upon a boundary line between the two properties; that in accordance with the idea that a street would be constructed in the future, half of the land to come from the Slack property, and half from the Hansen property for this purpose, the fence was moved 15 feet to the west. This street was never constructed. Appellants’ basis for the contention of the agreed boundary line is an alleged oral agreement between Thomas and Frank Brown, a neighbor, who formerly had leased the Slack lands, and who, according to appellants, was a “representative” of appellees. Ernest Darnell, Jr.> who acquired the land from Thomas (and subsequently conveyed to Hansen) testified that, during the time he owned the land, August, 1954, until March, 1961, he considered the west line of the property to be 15 feet east of the fence, and that he claimed to that line. No claim of adverse possession can be established, however (and, in fact, is not really argued), because admittedly, the land was wild and unimproved, and had never been farmed, nor had improvements been placed upon it. Furthermore, there is no evidence at all that Brown was an agent of appellees, or had any authority to make any agreements whatever on behalf of the Slacks. Hansen’s mother-in-law also testified that Brown told her that the property line was located 15 feet east of the fence, which Brown denied. At any rate, as stated, the record does not reflect any authority in Brown to bind appellees in any manner, even if the remainder of the proof on this point had' been sufficient.

There is likewise no merit in the second contention advanced by appellants, such contention being that this boundary line was established by acquiescence. Here, again, appellants are dependent upon the authority of Brown to act in behalf of appellees, and, in addition, there is no evidence of acts on the part of appellants’ predecessors in title that would serve as notice to the Slacks that any claim was being made to any part of the Slack property.

It is next argued that the Slacks are estopped from contesting the boundary line asserted by appellants, because the Hansens were permitted to construct the dwelling house and other improvements without objection: Again, appellants mention that they were relying upon the representations of Frank Brown, relative to the true boundary line. We find no merit in this contention. In the first place, there is no evidence that the appellees, non-residents of this state, as previously mentioned,■ knew that the Hansens were constructing improvements on their (Slack’s) lands. What is perhaps more important is that appellants made their purchase with full notice that the record title to the contested strip was in the Slacks, for before making the purchase in 1961, Hansen employed Huchingson to make a survey in order that he might determine correct boundaries ; Huchingson (who surveyed the land here in question three times) made the same findings as to the true boundary that has heretofore been set out. Certainly, this fact should have been sufficient to prevent Hansen’s reliance upon the alleged statements of the neighbor, Brown.

'Finally, appellants contend that a “balancing of equities requires a conveyance of the disputed strip for adequate compensation.” Here, it is argued that, because of the great expense involved in removing the concrete driveway, equity should afford appellants the opportunity to purchase the land encroached upon for its reasonable value. The only authority cited is from 11 C.J.S., “Boundaries,” Section 75, where it is stated that ‘ ‘ Where the improvements are made due to- mutual mistake [our emphasis] as to boundaries, equity will require conveyance of the disputed strip for its reasonable value.” This is hardly pertinent authority, since the record does not reveal a mutual mistake. Not only that, but Mr. Hansen admitted that he knew (even under his theory of where the proper line was located) that he had encroached several feet over the line. Hansen testified that his wife wanted to put up entrances “with some of those pineapple hootie-ki’s on top.” He went ahead with this construction, knowing that he was using property not his own, though he said that he thought it only amounted to three feet. A wilful trespasser is hardly in position to assert equitable rights. At any rate, having had his boundary line established by a recognized surveyor, appellant certainly should have contacted appellees before deliberately disregarding the surveyor’s findings, and proceeding to construct the driveway.

Affirmed.

Amsler and Bland, J.J., not participating.

      Brown used the land for pasture.

      In their answer, appellants asserted that they had spent in the neighborhood of $4,000.00 in constructing the driveway.


author: Ed. F McFaddin, Justice.

text:
    Ark. Grain Corp. v. Lloyd’s
    5-3867
    402 S. W. 2d 118
    Opinion delivered May 2, 1966

      Macom & Moorhead, Heineke, Conklin & Schrader, Chicago, 111., for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Ed. F McFaddin, Justice.

This case necessitates a decision as to liability between two insurance policies, one having a “pro rata” clause, and the other having an “excess” clause. While the case is styled, Arkansas Grain Corporation against Certain Underwriters at Lloyd’s, London, the real parties in interest are the Grain Dealers Mutual Insurance Company (hereinafter called “Grain Dealers”), as appellant, and Certain Underwriters at Lloyd’s, London (hereinafter called “Lloyd’s”), as appellee. Grain Dealers prosecutes the appeal under an instrument which, for all practical purposes, amounts to a subrogation from Arkansas Grain Corporation.

Arkansas Grain Corporation was constructing a grain elevator at Helena, Arkansas; and on May 13, 1963, obtained an insurance policy from Lloyd’s with a coverage of $5 million. The premium was $8,000.00. This policy was an all-risk builders’ policy. While a part of the grain elevator Avas still under construction, Arkansas Grain Corporation desired to use that portion of the building which was completed; and, for a premium of $3,183.00, on July 31, 1963, purchased an insurance policy from Grain Dealers having $2,800,000.00 coverage and insuring the building and machinery of Arkansas Grain Corporation against loss or damage by reason of fire, windstorm, or hail. On October 28, 1963, the grain elevator was damaged by fire in the amount of $147,-802.23.

Arkansas Grain Corporation gave notice of the loss to both Lloyd’s and Grain Dealers; and Lloyd’s denied liability because of the Grain Dealers policy. Grain Dealers advanced Arkansas Grain Corporation the amount of the loss under a Loan Receipt Agreement, which, for all practical purposes, ivas a subrogation agreement. Accordingly,' Grain Dealers, using the name of Arkansas Grain Corporation, prosecuted this action against Lloyd’s for a pro rata contribution of the loss. Lloyd’s denied liability because its policy contained an “excess insurance clause” reading as follows:

“Other Insurance. This policy does not cover any loss or damage which, at the time of the happening of such loss or damage is insured by or would but or the existence of this policy be insured by any other policy or policies, except in respect of. any excess beyond the amount which would have been payable under such other policy or policies had this insurance not been effected.”

Grain Dealers’ policy had a “pro rata clause” reading as follows:

“This company shall not be .liable for any greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the .property against the peril involved, whether collectible or not.”

The only question for decision is the determination of the effect of the excess clause of Lloyd’s, as against the pro rata clause of Grain Dealers. The Trial Court held that Lloyd’s was not liable because its insurance was only excess insurance; and Grain Dealers brings this appeal, claiming that the repugnancy between the two clauses previously copied makes Lloyd’s liable on a pro rata basis. Some insurance companies, such as Grain Dealers, use a “pro rata clause”; some insurance companies, such as Lloyd’s, use an “excess clause”; and a third form of policy contains the “escape clause,” which latter states that the insurance company issuing the policy will not be liable if the insured has, or thereafter obtains, any other insurance on the property. The three clauses—pro rata, excess, and escape—have been discussed in many, many cases.

We have repeatedly upheld the escape clause as valid. In Planters’ Mutual Ins. Co. v. Green, 72 Ark. 305, 80 S. W. 151, the clause read: “This entire policy, unless otherwise provided by agreement endorsed thereon or attached hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; ...” We held the clause was valid. Likewise, in Nabors v. Dixie Mutual Fire Ins. Co., 84 Ark. 184, 105 S. W. 92, the policy did not permit additional concurrent insurance, and we said: “Where a policy of insurance contains a clause avoiding the policy if insured procures additional insurance, the procurement of additional insurance without the insurer’s consent avoids the policy. Planters’ Mutual Ins. Co. v. Green, 72 Ark. 305.” To the same effect see Milwaukee v. Gibson, 199 Ark. 542, 134 S. W. 2d 521; Roach v. Arkansas Farmers Co., 216 Ark. 61, 224 S. W. 2d 48; and Agricultural Ins. Co. v. Ark. P. & L., 235 Ark. 445, 361 S. W. 2d 6.

In the case now before us, we have in Lloyd’s policy an excess clause; that is, the policy provided that until the insured sustained a loss in excess of the coverage of the other insurance policy, Lloyd’s would not be liable in any amount; or, stated otherwise, Lloyd’s would be liable under its policy for coverage only in excess of the coverage of any other policy. Thus, Arkansas Grain Corporation was not prohibited from obtaining other insurance; but, in such an event, Lloyd’s became liable only for the excess of loss over the coverage of the other policy.

Appellant wants us to follow what is called the Oregon Rule, as contained in such cases as Ore. Auto. Ins. Co. v. U. S. Fidelity & Guaranty Co. (9th Cir. 1952), 195 F. 2d 958; Lamb-Weston Inc. v. Ore. Auto. Ins. Co. (1959), 219 Ore. 110, 341 P. 2d 110; Continental Cas. Co. v. General Accident Corp. (Dist. Ct. Ore. 1959), 175 F. Supp. 713, aff’d. (9th Cir. 1961) 287 F. 2d 464; and Globe Indemnity Co. v. Capital Ins. Co. (Dist. Ct. of Guam 1964), 228 F. Supp. 494. The Oregon Rule, simply .stated, is that when one policy contains an excess clause and the other policy contains a pro rata clause, then both companies are liable on a pro rata basis.

Opposed to the Oregon Rule there is the so-called Majority Rule, upheld in many jurisdictions, which is that when one policy contains a pro rate clause and the other policy contains an excess clause, then the excess clause governs on its policy, and the company having the excess clause is not liable until the company having the pro rata clause has paid to the extent of its policy. There is an annotation in 76 A.L.R. 2d 502, entitled: “Apportionment of liability between automobile liability insurers where one of the policies has- an ‘ excess insurance’ clause and the other a ‘proportionate’ or ‘pro rata’ clause.” While the annotation deals principally with automobile liability insurance, it was conceded by both sides in the oral argument in the case at bar that the rule governing automobile insurance cases would apply likewise to the kind of insurance policies that we have now before us.

A carefully considered opinion is that in Citizens Mutual Ins. v. Liberty Mutual Ins. Co. (6th Cir. 1959), 273 F. 2d 189. In that case one policy had a pro rata clause and the other had an excess clause; and the Court held that the policy having the excess clause was not liable until the limits of the pro rata policy were exhausted. The opinion of the Court lists the cases following the Majority Rule, as well as those following the Oregon Rule; and this reference to that opinion makes, it unnecessary for us to list all such cases here. The Court said of the Majority Rule:

“The foregoing authorities represent the overwhelming majority view that when an excess clause in one automobile insurance policy conflicts with another ‘other insurance’ clause, and more particularly a ‘pro rata clause’, in a second policy, the excess clause controls and is to be given its full effect.”

Our cases on the escape clause, as previously listed, by necessary logic commit us to the Majority Rule; that is, there was no liability under the excess policy issued-by Lloyd’s until Arkansas Grain Corporation had a loss in excess of its policy with Grain Dealers. The Grain Dealers policy was for $2,800,000.00: the loss here was $147,802.23; so Lloyd’s was not liable to Arkansas Grain Corporation on the loss here involved.

Affirmed.

Amsler and Bland, JJ., not participating.

      Said Loan Receipt Agreement read:
      “KNOW ALL MEN BY THESE PRESENTS:
      “WHEREAS, ARKANSAS GRAIN CORPORATION suffered a loss as the result of a fire at Helena, Arkansas, on October 23, 1963; and “WHEREAS, GRAIN DEALERS MUTUAL INSURANCE COMPANY has agreed to loan said ARKANSAS GRAIN CORPORATION the sum of One Hundred Forty-seven Thousand Eight Hundred Two Dollars and Twenty-three Cents ($147,802.23) ;
      “NOW, THEREFORE, said ARKANSAS GRAIN CORPORATION does hereby acknowledge receipt of One Hundred Forty-seven Thousand Eight Hundred Two Dollars, and Twenty-three Cents ($147,802.23) from said GRAIN DEALERS MUTUAL INSURANCE COMPANY" and agrees to repay the same on the following conditions:
      “Said loan shall be repayable, without interest, only in the event and. to the extent of any recovery the undersigned may make as a result of litigation • commenced in the Circuit Court of Arkansas County, Arkansas Northern District, on the 19th day of May, .1964, under the caption, ‘Arkansas Grain Corporation, plaintiff, vs. Certain Underwriters at Lloyd’s, London, defendants,’ to which cause was assigned No. 3754, whether such recovery is by settlement or through final determination of the litigation. It is further agreed that said GRAIN DEALERS MUTUAL INSURANCE COMPANY shall have the direction and control of said litigation on conditi.on that the same shall be without pecuniary loss or expense to the undersigned, and that the undersigned shall not be obligated to repay said loan or any part thereof unless and until payment is actually received. The undersigned covenants that no settlement has been made by the undersigned with those Certain Underwriters Subscribing Policy KX 661102 CB, either directly or through Brown & Hawley, Inc., and no release has been given to them, and that no such settlement will be made nor release given, without the consent of said GRAIN DEALERS MUTUAL INSURANCE COMPANY; and the undersigned covenants and agrees to co-operate fully with said GRAIN DEALERS MUTUAL INSURANCE COMPANY in the presentation of the claim and the prosecution of the litigation hereinabove referred to or any other and necessary litigation instigated at the direction of counsel handling this matter for GRAIN DEALERS MUTUAL INSURANCE COMPANY, subject to the conditions herein set forth.
      “Dated, at Stuttgart, Arkansas, this 21st day of July, 1964.
      “ATTEST “ARKANSAS GRAIN CORPORATION
      /s/ Leland L. Carle By /s/ L. C. Carter, Executive
      Secretary-Treasurer Vice President and General Manager.”

      General statements as to the three types of clauses may be found in Am. Jur. Vol. 29A, page 294 et seq., “Insurance” § 1715 and § 1716.


text:
    Miller Milling Co. v. Amyett
    5-3885
    402 S. W. 2d 659
    Opinion delivered May 2, 1966
    [Rehearing denied June 6, 1966.]

      Odell Pollarcl, for appellant;

      Henry & Boyett, for appellee.
   George Rose Smith, Justice.

This is á claim under the workmen’s compensation law for medical expenses and temporary disability resulting from a hernia assertedly suffered by the appellee in the course of his employment. The Commission, with one member dissenting, held the injury to be compensable. The circuit court affirmed that decision.

The pivotal question is whether there is any substantial evidence to establish the fifth of the five specific facts that our statute requires in hernia cases. This is the pertinent language of the statute:

“In all cases of claims for hernia it shall he shown to the satisfaction of the Commission:

“ (1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;

“(2) That there was severe pain in the hernial region;

“(3) That such pain caused the employee to cease work immediately;

“ (4) That notice of the occurrence was given to the employer within forty-eight hours thereafter;

“(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight hours after such occurrence.” Ark. Stat. Ann. \ 81-1313 (e) (Repl. 1960).

The claimant, Ralph Amyett, testified that on March 6, 1964, as he was picking up a heavy sack of feed he felt a.sharp pain in his side. He rested for twenty or thirty minutes and then felt well enough to resume comparatively light tasks. Before going home that evening he told his employer that he had hurt himself. Amyett at first meant to go to a doctor, but he kept putting it off and eventually thought it to be unnecessary.

Amyett continued to work for about four months after he was injured. He was able to get along all right by avoiding heavy lifting. About two months after the injury he noticed for the first time a swelling in his scrotum. He continued to work, however, until he consulted a doctor early in July. The doctor found an inguinal hernia, which he. corrected by surgery. In the proceedings before the Commission the claimant made no attempt to produce medical testimony establishing a causal connection between the injury that occurred on March 6 and the hernia that was discovered by the doctor on July 6.

In allowing the claim the referee relied upon our holding in Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929 (1963), remarking, however, that “our facts stretch this doctrine considerably.” A majority of the Commission upheld the award without discussing the legal issues in the case.

We are unable to say that the Prince case can be extended to reach the fact situation here. There the workman was injured on Thursday, but at his employer’s request he worked on Friday .and Saturday despite the fact that he was in pain. He tried to call a doctor on Friday but failed to reach him. On Monday the claimant finally saw a physician, who found an inguinal hernia. In sustaining the award we were of the opinion that the facts justified the Commission in excusing the claimant’s failure to consult a doctor until about two days after the expiration of the time allowed by the statute. We followed a very similar Mississippi case, where the court reasoned that for an injury “to require” a physician’s attendance within a certain number of days does not invariably mean that the physician must actually be consulted within that time. A substantial compliance may be sufficient.

There is little resemblance between the Prince case and this one. Here Amyett was not continuously in pain from the time of his injury until he actually saw a physician. Quite the contrary he apparently recovered and worked for at least two months before there was a noticeable swelling. Nor can the excusable delay of two days in the Prince- case fairly be said to be equivalent to this claimant’s delay of four months, during which he not only failed to see a physician but also had no especial need of medical attention.

The appellee’s position really narrows down to the contention that since he suffered severe pain on March 6 his condition therefore “required” the attendance of a physician within forty-eight hours. The fallacy in this argument lies in its disregard of the fact that severe pain must exist in every instance of a compensable hernia, for that condition is the second of the five statutory requirements. Hence, if the appellee is right, the fifth requirement—that the attendance of a physician be required within forty-eight hours—adds nothing whatever to the earlier statement that severe pain must occur. We are not at liberty to give absolutely no meaning and effect to the plain language of the statute. We must conclude that the requirement of immediate medical attention was not sufficiently established in this case.

Reversed and dismissed.

Cobb, J., disqualified.

Bland, J., not participating.