author: Ed. F. McFaddin, Associate Justice.

text:
    State of Ark. ex rel. v. Cate.
    5-3030
    371 S. W. 2d 541
    Opinion delivered September 9, 1963.
    [Rehearing denied October 14, 1963.]

      Sexton é Morgan, for appellant.

      Gean, Gean <& Gean, Charles B. Starbird, and Lonnie Batchelor, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case arose as a taxpayer’s suit brought by appellant, Peevy, under Act No. 193 of 1945 (Ark. Stat. Ann. § 17-304 et seq. [Repl. 1956]); and challenging the sale of county property to appellee, Cate. Drawn into the suit was the applicability of Act No. 481 of 1949 (Ark. Stat. Ann. § 17-1501 et seq. [Repl. 1956]) regarding county hospital property. From a decree affording the taxpayer only partial relief, both sides have appealed: so the entire controversy is before us for trial de novo on the record.

For many years Crawford County had owned twenty acres, commonly called “the county farm property,” but later called ‘ ‘ the county infirmary. ’ ’ In the 1932 depression, the Works Progress Administration erected a stone building on the property, and Crawford County used the building and property for the intended statutory purpose of a county poor farm. By 1960 the building had become dilapidated, and Old Age Assistance grants had relieved many people from being inmates of the county poor farm; so there remained only one occupant of the property. The use to be made of the county poor farm or county infirmary became a problem to Crawford County. It would have cost the County over $80,000.00 to equip the property for use as a suitable rest home. At the regular January 1961 meeting of the Quorum Court of Crawford County, a motion was adopted “that the County Judge be given authority to appoint a board to dispose of the County Infirmary as the board sees fit.”

The County Judge proceeded under Act No. 481 of 1949 (Ark. Stat. Ann. §_ 17-1501 et seq. [1947]) to accomplish the motion of the Quorum Court; and on February 15, 1961, there were appointed under the said Act eight persons as the Board of Governors of said “County Infirmary and grounds.” This Board met on the same day and gave serious consideration to the problem of the County Infirmary; and finally adopted a motion that the County Infirmary be placed on a long term lease to Clyde R. Cate (one of the appellees herein) for operation as a rest home. On March 14, 1961, a lease was executed by the said Board of Governors and by the County Judge and County Court, whereby Clyde R. Cate became the lessee of said County Infirmary. We briefly abstract the pertinent provisions of the lease, since its validity is one of the issues in this litigation: (a) the entire tract of twenty acres, with building, was leased to Clyde R. Cate for 25 years, with option to the lessee to renew for a like period; (b) the rental the County was to receive was $1.00 per year; (c) lessee agreed to expend enough money in improving and equipping the property to have and maintain a rest home that would meet State and national regulations; (d) lessee agreed to keep at all times, free of expense to Crawford County, one patient as sent by the County Judge. The lease also provided that the lessee had an option to purchase all of the leased property at any time during the life of the lease by paying Crawford County the sum of $7,500.00; and, in addition, if any of the twenty acres should be taken by eminent domain proceedings during the life of the lease, then the lessee would receive all such amounts paid in the eminent domain proceedings.

Mr. Cate entered into possession of the leased property and immediately commenced spending substantial sums in making the necessary and required improvements. At the time of the trial below it was testified, without substantial contradiction, that Mr. Cate had expended between $28,000.00 and $30,000.00, had an A-l rated rest home with a capability of accommodating 23 patients, and plans to enlarge the rest home to accommodate 60 patients.

With the lease of the rest home thus accomplished in March 1961, the matter might well have ended; but then commenced the course of events which directly caused this litigation. These events were evidently triggered by the realization of Mr. Cate that his option to purchase the property (as contained in his lease) might be null and void. On July 15, 1961, the County Court entered an order that the entire 20 acres (legally described), knowh as the “County Infirmary Property,” would be sold to the highest bidder “subject to the terms of the said lease ’ ’ held by Cates. This sale was a proceeding under Act No. 193 of 1945 (Ark. Stat. Ann. § 17-304 ei seq. [Eepl. 1956]); and every step prescribed by said Act was carefully followed. The sale was advertised, and only one bid was submitted; and that was the bid of Clyde E. Cate for $7,500.00. That bid was accepted, and the deed made and approved, as required by the law, and delivered to Mr. Cate on August 4, 1961: so everything seemed to be concluded.

Then on August 14, 1962, appellant Clyde Peevy, as a citizen and taxpayer for the benefit of Crawford County, filed the present suit in the Chancery Court as a proceeding under Act No. 193 of 1945 (Ark. Stat. Ann. § 17-304 [Eepl. 1956]), alleging that the sale of the property to Clyde E. Cate was invalid, and praying for a return of the property to Crawford County free of all mortgages and conveyances executed by Cate. Various lienholders and grantees from Cate were made defendants. The defense of all the defendants was the absolute validity of the sale of the property by the County to Cate, ■and the good faith of all parties. The cause was heard ore terns by the Chancery Court and resulted in a decree:

(a) Holding void the option given Cate in the lease to purchase the property for $7,500.00;
(b) Holding that the effect of making the sale of the property subject to the Cate lease was to stifle bidding;
(c) Holding that at the time of the sale of the property it was worth $10,000.00 instead of $7,500.00, and that the effect of the stifling of the bidding was to defeat the County of $2,500.00; and
(d) Holding that the County was entitled to receive for the property an additional $2,500.00.

The learned Chancellor delivered a splendid opinion which clearly shows the many intricate problems arising in this case, and the earnest and sincere desire on the part of the Chancellor to accomplish substantial justice and equity.

Prom that decree both sides have appealed. Peevy, as appellant, insists that the entire property (less the 4.85 acres acquired by the State Highway Commission) should be returned to Crawford County, free of all mortgages and conveyances; and he cites and strongly relies on Ark. Stat. Ann. § 17-309 (itepl. 1956), which says that when county property is sold in violation of the Act, the sale shall be null and void, and a citizen and taxpayer may bring a suit in the Chancery Court within two years; “and in the event such property is recovered for the county in such action the purchaser shall not be entitled to a refund of the consideration paid by him for such sale.” Peevy relies strongly on onr case, State for the use of Miller County v. Eason, 219 Ark. 36, 240 S. W. 2d 36. On the other hand, the appellees (Mr. and Mrs. Cate, Mr. and Mrs. Smith, and the Smith’s mortgagee, First Federal Savings & Loan Association) maintain that the Act No. 193 of 1945 was literally followed; and that the Chancellor should not have rendered judgment against Cate for $2,500.00.

I. The Lease Contract. The first question to be decided is whether the lease of the County Infirmary property to Cate was valid or void. We have concluded that the County properly proceeded under the provisions of Ark. Stat. Ann. § 17-1501 et seq. (Repl. 1956); but we have concluded that the provision giving Cate an option to purchase the property was void, as was also the provision giving Cate the right to any money received in the eminent domain proceeding. The reason these two provisions are void is because such provisions constitute a disposition of the County property without compliance with Ark. Stat. Ann. § 17-304 et seq. (Repl. 1956).

The next question is whether said void provisions rendered void the entire lease to Cate, or whether. Cate could claim that the lease was valid with these two provisions stricken. We conclude that Cate could legally so claim; and our authority for such conclusion is the case of Storthz v. Sanger, 108 Ark. 154, 156 S. W. 1020, which was also a chancery case. In the Storthz case, the guardian of an insane person executed a lease of real estate, which instrument gave the lessee an option to purchase the property on stated terms. Even though the lease was approved by the Probate Court, we held such option to purchase to be void, saying: “There appears nowhere in the statutes of this State any authority in the probate court to authorize the execution of such a contract. . . ”— i.e., option to the lessee to buy. But we further held:

‘ ‘ The invalidity of that part of the contract did not, however, deprive the lessor of the other benefits arising under it, and the heirs of the lessor were not put to an election either to ratify the- contract as a whole, including the option to purchase, or to let the lessee occupy the premises for the balance of the term free of rent. In other words, the lessees had rights under the contract notwithstanding the invalidity of one feature, and it was not within the power of the heirs of the lessor to repudiate the contract; therefore, they were not put to an election, either to affirm or repudiate it as a whole.” Under the authority of said case, we conclude that Clyde E. Cate could validly hold the lease here involved, with the void provisions stricken. The Chancery Court so held; and we affirm that portion of the decree.

II. Stifling of Bidding. We come next to the question as to whether the sale of the property was in full compliance with Ark. Stat. Ann. § 17-304 et seq. (Eepl. 1956); and we find that the letter of the law was fulfilled, just as we emphasized in State, use of Miller County v. Eason, 219 Ark. 36, 240 S. W. 2d 36:

(a) an order was entered in the County Court, setting forth the description of the property to be sold, giving the reason for the sale, and directing the County Assessor to appraise the property and certify same to the County Court;

(b) the County Assessor filed with the County Clerk his certificate of appraisal;

(c) the notice of sale was advertised in a newspaper for the time required by law, and Cate made a sealed bid of $7,500.00 ;

(d) the bid was for more than three-fourths of the said appraised value;

(e) a majority of the Board of Approval approved the sale to Cate; and

(f) the County Court entered its order approving the sale and giving details.

As we say, the requirements were followed to the “letter of the law.” It is true that in the present proceeding the plaintiff (appellant) challenged the appraisal, the publication, and other matters; but we need not consider such challenges because there is one point which shows that bidding was stifled; and that is the fact that the County Court order and notice stated: ‘ ‘ Said property will be offered for sale, and sold subject to a certain lease of Crawford County with Clyde Cate and Vian Cate, husband and wife, for a term of 25 to 50 years.” It must be remembered that the lease on its face gave Cate a lease for 25 to 50 years at $1.00 per year and the care of one patient, and that Cate had an option to buy the property at any time for $7,500.00, and in the interim Cate would receive all proceeds of any eminent domain money. Even though we are now holding such italicized clause to be void, nevertheless the italicized clause at the time of the sale had not been determined to be void; and any prospective purchaser other than Cate would be “buying a lawsuit” regarding such provisions. It is clearly apparent that the effect of making the sale subject to the Cate lease was to arrange matters in such a way that no one except Cate would be in a position to make a substantial bid for the property; and the fact, that Cate alone offered a bid, is proof of such statement. The said arrangement constituted stifling of bidding. “Any act of auctioneer, seller, or purchaser which diminishes competition and stifles or chills the sale, vitiates the sale.” 7 C.J.S. p. 1255. In Hinton v. Elliott, 187 Ark. 907, 63 S. W. 2d 633, the property was ordered sold by the Commissioner “in the manner and form as provided by law for the sale of lands under attachment.” We held that such language in the order of sale, coupled with the inadequacy of the price, was sufficient to amply justify the Court in refusing to confirm the sale.

It cannot be successfully claimed that when the County Court approved the sale of the property to Cate that stifling of bidding and all other defects and irregularities were cured, because the present proceeding is a taxpayer’s suit in chancery, under the provisions of Ark. Stat. Ann. § 17-304 et seq. (Eepl. 1956), and, under that statute, the taxpayer may urge any defect in the sale proceedings. So we hold that bidding was stifled in this sale; and the significant point is that the Sheriff (who was a member of the County Board of Approval under Ark. Stat. Ann. § 17-308 [Eepl. 1916]) refused to approve the sale. Here is what he testified, with no objections registered to such testimony:

“Q. As a member of the Board of Approval and as bearing upon your refusal to approve the sale, what did you consider the fair market value of the property to be at the time it was sold?
“A. One of the Hospital Board members and myself—
“Q. No, sii’, just tell me what you considered!
“A. Ten Thousand dollars.”

The Chancery Court held that the bidding was stifled, and that the property was worth Ten Thousand Dollars; and we affirm that portion of the decree.

III. The Disposition To Be Made Of This Case. We come, next, to this severe problem which confronted the learned Chancellor, and which confronts us on this appeal. The appellants vehemently urge that under Act 193 of 1945 (Ark. Stat. Ann. § 17-309 [Repl. 1956]) the property should be returned to Crawford County free of any claim of any of the appellees. It is true that the said statute says that any sale contrary to the provisions of the Act is void, “and in the event such property is recovered for the county in such action the purchaser shall not be entitled to a refund of the consideration paid by him for such sale.” The answer to the appellant’s contention is that this particular sale was not contrary to the provisions of the Act, but was subject to attack for a different reason. Hence, the sale was merely voidable, and equity could mould a remedy to fit the case. Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230; Young v. Young, 207 Ark. 36, 178 S. W. 2d 994.

Equity, in its power to mould the remedy to repair the wrong, may impose conditions on whatever relief it grants or refuses. In 19 Am. Jur. 51, “Equity” § 22, cases from many jurisdictions are cited to sustain this text:

“A court of equity has power to make its granting of relief dependent upon the performance of conditions by a party litigant, if the conditions are such as are imposed in the exercise of a sound discretion and of a character calculated to satisfy the dictates of conscience. The court may thus protect and give effect to the rights of one party while awarding relief to the other. The court is not restrained by strict legal rights.”

In Central Kentucky Co. v. Comm., 290 U. S. 264, 54 S. Ct. 154, 78 L. Ed. 307, Mr. Justice Stone used this language:

“The power of a court of equity, in the exercise of a sound discretion, to grant, upon equitable conditions, the extraordinary relief to which a plaintiff would otherwise be entitled, without condition, is undoubted. It may refuse its aid to him who seeks relief from an illegal tax or assessment unless he will do equity by paying that which is conceded to be due. State Railroad Tax Cases, 92 U. S. 575; Cummings v. National Bank, 101 U. S. 153; Peoples National Bank v. Marye, 191 U. S. 272, 287; see Norwood v. Baker, 172 U. S. 269, 294. It may withhold from a plaintiff the complete relief to which he would otherwise be entitled if the defendant is willing to give in its stead such substituted relief as, under the special circumstances of the case, satisfies the requirements of equity and good conscience.”

Our Court, in Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S. W. 2d 728, said:

“Conditions Imposed on Relief to Plaintiff. Having found that the cause is cognizable in a court of equity, and that relief may be granted by injunction, it follows as a corollary that the court may impose conditions on the relief to be granted the plaintiff, or may grant other relief in lieu of injunction. One of the peculiar attributes of a court of equity is the power to mould the relief to fit the particular case. There are salient facts in this case that call for the exercise of this equitable power.”

With the foregoing authorities in mind, we consider the situation confronting the Chancery Court. At the outset it must be remembered that even if the sale should be set aside, nevertheless the lease would remain as valid, less the option and the provisions about the eminent domain money, as heretofore mentioned: so the County would not recover possession of the property. Then there are other matters that complicate the situation. Mr. Cate and his wife had mortgaged this and other property to obtain the needed funds and had expended in excess of $28,000.00 in improving the property, equipping the rest home, and securing an A-l rating for it. Twenty-three persons are occupying the rest home because of State or federal aid. Whether Cate, or his mortgagee, could claim a lien to the extent of the improvements— under the theory of unjust enrichment—is itself an unanswered question.

Furthermore, Cate sold a small parcel of the property to Mr. and Mrs. Smith, who borrowed money from a building and loan association and built a home on the purchased parcel. To completely set aside the sale of all the property would be to put the Smiths and their mortgagee in an almost helpless position. In addition, the State Highway Commission, in eminent domain proceedings in the Circuit Court, has taken 4.8 acres of the property. To completely set aside the sale would leave open the question as to the validity, if any, of the condemnation proceedings, and the payment of the proceeds to Cate. The condemnation proceedings were in November 1961; the sale to the Smiths was in December 1961; and the present suit was not filed until August 14, 1962. Of course, under the statute, the taxpayer had until July 1963; but, by delaying until August 14,1962, the taxpayer allowed various situations to develop, as previously indicated, whereby to set aside the entire sale would work a grave inequity.

In such a complex factual and legal situation the learned Chancellor moulded the remedy to fit the wrong. The Court found that the property was actually worth $10,000.00 at the time of the sale to Cate; that Cate paid only $7,500.00; that Cate should pay an additional $2,-500.00, with interest thereon at 6% per annum from July 1961 until paid and should pay all costs of this litigation ; that when all such should he done by Cate, then equity would be satisfied and the sale would not be set aside; but that if Cate should not pay the said amount within a reasonable time, then the sale of the property from the County to Cate would be set aside. We conclude that the Chancellor made a wise and equitable decision; and we affirm his decree and remand the cause to the Chancery Court to reinvest that Court with jurisdiction to again fix a reasonable time within which Cate must comply with the decree, otherwise the Chancery Court will order a resale of the property on such terms and conditions as it sees fit. Costs of this appeal shall be paid by appellee.

       Ark. Stat. Ann. § 83-301 et seq. (Repl. 1960) are the statutes concerning county poor houses.

       The minutes of that meeting are before us, and the testimony of some of the Board members. We are impressed with the high type public service the members were attempting to render. That they acted in good faith, is readily apparent.

       This option to purchase and the right to receive the proceeds of the eminent domain matters constitute problems later to be discussed.

       It is claimed by appellants that the spirit of the law was entirely flouted in that the publication was in a little known newspaper; that the assessor signed his appraisal of the property without seeing it; and that various other matters occurred which showed that the spirit of the Act was not fulfilled; but all of these go to the matter of good faith and not to the “letter of the law” compliance.

       Cate had received $4,000.00 from the State Highway Commission for 4.85 acres taken for highway purposes, and personal judgment against Cate was prayed for that amount. Cate had sold one small tract for $500.00 to Joe Smith, who had executed a mortgage on the tract and built a home; and a return of that tract, free of the mortgage, was prayed. Cate had mortgaged the property for funds used to make improvements, and a cancellation of all such mortgaged was prayed.

       The Cates prayed that if the complaint of the plaintiffs be not dismissed, then the Cates “recover judgment for all improvements and taxes paid by them . . . and for all other just and equitable relief.” The prayers of the other defendants were couched in somewhat similar language.

       This was the only bid received.

       On stifling of bidding see: Am. Jur. Vol. 30 A. p. 957, “Judicial Sales” § 98; 50 C.J.S. p. 674, “Judicial Sales” § 54; 5 Am. Jur. p. 463, “Auctions” § 26; 7 C.J.S. p. 1255, “Auctions and Auctioneers” § 7. See also Preske v. Carroll (Md.), 16 A. 2d 291. In Dumas v. Owen, 210 Ark. 505, 196 S. W. 2d 987, we had occasion to consider stifling of bidding in judicial sales. See also generally Mulkey v. White, 219 Ark. 441, 242 S. W. 2d 836.

       There is authority for requiring the purchaser to increase his bid as a condition for obtaining a confirmation of the sale. See State Nat’l Bank v. Neel, 53 Ark. 110, 13 S. W. 700, and annotation in 105 A.L.R. 366 entitled: “Power of court as condition of confirmation of judicial sale to require successful bidder to increase his bid.”

       The Chancery decree gave the defendants (appellees here) sixty days from October 25,1962 to pay the additional $2,500.00 and interest. Since such time expired during this appeal, the Chancery Court may fix a new period.


source: Caselaw Access Project

author: Sam Eobinson, Associate Justice.

license: Public Domain

text:
    Stevenson v. State.
    5075
    370 S. W. 2d 445
    Opinion delivered September 9, 1963.
    [Rehearing denied October 7, 1963.]

      Virgil B. Moncrief and John W. Moncrief, for appellant.

      Bruce Bennett, Atty. General, By Leslie Evitts, Chief Asst. Atty. Gen., for appellee.
   Sam Eobinson, Associate Justice.

Appellant, B. C. Stevenson, Jr., was charged in the Monroe Circuit Court with murder in the first degree in the killing of Curtis Diamond. Defendant was convicted of murder in the second degree and sentenced to 21 years in the penitentiary. He has appealed.

There is no question about the killing, and there is no doubt about the evidence being sufficient to sustain the verdict. The appellant relied on the theory of self defense as justification for the killing, but by its verdict the jury found that he was not acting in self defense at the time of the killing.

Kissiee Diamond, widow of the deceased, is the sister of appellant, Stevenson. By a former marriage she has a son, Marshall Johnson, age about 14. Curtis Diamond was, therefore, Marshall Johnson’s stepfather. Diamond, contending that his stepson had wrongfully gone into a neighbor’s watermelon patch, gave the boy a severe whipping with a belt, breaking the skin and causing bleeding in more than one place on the boy’s body.

Sometime after the whipping, appellant, Stevenson, age about 24, heard about it. Later, a day or so after the whipping took place, appellant, along with his nephew, Marshall Johnson, and some others, went on a fish fry at an isolated lake. Appellant, Stevenson, carried a pistol, a .38 special. When he returned home about 3:30 in the afternoon, his brother-in-law, Diamond, was sitting on the front porch. Appellant pulled his pistol and shot him down, hitting Diamond once in the chest, and twice in the back, killing him then and there.

On appeal appellant contends first that the court erred in not allowing the introduction in evidence of pictures of Marshall Johnson’s body, taken a year after the whipping, showing scars alleged to have been caused by the punishment. The pictures were taken about six months before the trial. Johnson was a witness for the State, and exhibited his body to the jury. There is no showing that the scars in question were not visible at the time of the trial. The fact that his body was exhibited to the jury would indicate that the scars were visible; otherwise there would have been no point in letting the jury view his body. Whether the introduction in evidence of pictures of a given situation is allowed is largely in the discretion of the trial court. Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621; McGeorge Contracting Co. v. Mizell, 216 Ark. 509; 226 S. W. 2d 556. Here, we do not find that there was an abuse of discretion by the trial court in not permitting in evidence pictures taken a year after the whipping was administered.

In his argument to the jury, the Prosecuting Attorney said: “B. C. Stevenson, Jr. and Will Stewart, Jr. were the only ones who actually witnessed this killing, besides the deceased, Curtis Diamond, and he is not here to testify.” Appellant argues that the court erred in permitting the Prosecuting Attorney to call the jury’s attention to the fact that the deceased could not be there to testify. We fail to see how the argument was in any way erroneous. Prosecuting Attorneys make this same argument in almost every case where only the defendant and the victim were witnesses. The statement that the deceased was not present to testify is merely calling the jury’s attention to an obvious and uncontrovertible fact.

After deceased was shot, he ran into the house and fell dead in the kitchen floor. When officers arrived they found a knife near the body and another knife in the pocket of the deceased. The Sheriff had possession of the knives and also the pistol used by the defendant in the slaying. When he was testifying, he placed these articles, which were in a bag, on the counsel table. In his motion for new trial the defendant alleged newly-discovered evidence stating that he and his counsel first learned about the knives subsequent to the trial.

No diligence is alleged or shown; there is no indication whatever that the officers who found the knives attempted to keep that fact a secret, and there is no indication that they would not have freely discussed the facts with anyone. Moreover, the circumstances of the killing were such that evidence of the knives would not likely change the result in a new trial. It will be recalled that the deceased was shot once in the chest and twice in the back while he was on the front porch.

The court said in St. Louis Southwestern Ry. Co. v. Goodwin, 73 Ark. 528, 84 S. W. 728: “Motions for new trial on the ground of newly discovered evidence are addressed to the sound legal discretion of the trial court. They should show that reasonable diligence was used to discover the evidence. In this case affidavits were filed with the motion to the effect that appellant had used due diligence and done all in its power to discover the evidence, but do not state the acts done which affiants denominate reasonable diligence, . . .”

The court said in Runnels v. State, 28 Ark. 121; “Applications for new trials on the ground of newly discovered evidence are to be received with caution, and this in proportion to the magnitude of the offense. The application should be corroborated by the affidavits of other persons than the accused, and if possible, those of the newly discovered witnesses themselves, and it is not sufficient for the applicant to state that he did not know of the existence of the testimony in time to have brought it forward on the trial, but it must appear that he could not have ascertained it by reasonable diligence.” See also Campbell v. State, 38 Ark. 498; Robinson v. State, 33 Ark. 180.

Finding no error, the judgment is affirmed.


author: Jim Johnson, Associate Justice.

text:
    Dement v. State.
    5077
    370 S. W. 2d 191
    Opinion delivered September 9, 1963.

      John C. Watkins, for appellant.

      Bruce Bennett, Atty. General, By Jerry L. Patterson, Asst. Atty. Gen., for appellee.
   Jim Johnson, Associate Justice.

This appeal involves a petition for writ of error coram nobis. Appellant Joe Dement was charged on two counts with the crimes of burglary and grand larceny. On November 27, 1962, he was arrested, information was filed against him, and he signed a confession of commission of the crimes. Appellant was arraigned December 3, 1962 and entered pleas of guilty as charged. On December 7th appellant was sentenced by the Greene County Circuit Court to two ten-year concurrent sentences in the penitentiary. On December 14th appellant’s father caused to be filed a petition for writ of habeas corpus, alleging that appellant “entered a plea of guilty to criminal charges without benefit of advise of council [sic] prior to entering his plea to said charges.” The writ of habeas corpus was granted that day, and on January 5, 1963, hearing was held on the petition for the writ of habeas corpus. At the request of appellant and with the assent of the State, the petition for writ of habeas corpus was treated by the court as a petition for writ of error coram nobis, which was denied. Thereafter on January 7th appellant filed a petition for writ of error corara nobis and motion to vacate. On January 12th the trial court sustained the State’s motion to dismiss the second petition and on that day entered the order of January 5th finding that the allegations of the petition were not sustained and the prayer of the petition was accordingly denied.

From such order appellant prosecutes this appeal.

It is well settled that under the Fourteenth Amendment of the United States Constitution and Article 2, Section 10 of the Constitution of Arkansas acceptance of a plea of guilty without first giving or offering the accused benefit of counsel constitutes a denial of due process of law. Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204.

The trial court’s order recites that the State admitted that appellant did not have counsel at the time he entered his plea of guilty.

On appeal, appellee argues that “ [t]he State admits only to the fact that the appellant had no attorney at the time he entered a plea of guilty, not to allegations that he was denied or hot informed of rights to be advised by counsel at any stage prior to his plea of guilty to the charges of burglary and grand larceny. Such allegations remain unsupported.”

The record is silent as a tomb on the question of whether appellant was offered counsel and, if so, whether he in fact waived such counsel. In the recent decision of Carnley v. Cochran, 369 U. S. 506, 82 S. Ct. 884, the United States Supreme Court, in a non-capital felony ease, set out this criterion:

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.”

In the absence of such an affirmative showing, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.


author: Frank Holt, Associate Justice.

text:
    Rollie v. State.
    5085
    370 S. W. 2d 188
    Opinion delivered September 9, 1963.

      A. M. Coates, for appellant.

      Bruce Bennett, Atty. General, By Jerry L. Patterson, Asst. Atty. Gen., for appellee.
   Frank Holt, Associate Justice.

The appellant was accused of the crimes of forgery and uttering in two separate informations which were consolidated for trial. The jury acquitted her in one case and convicted her in the other in which they assessed her punishment at two years in the State Penitentiary for forgery and another two years for uttering. From this jury verdict and the judgment of the Court the appellant brings this appeal.

The appellant alleges five assignments of error in her motion for a new trial. We group the first three assignments inasmuch as they question the sufficiency of the evidence. On appeal all the evidence submitted at the trial must be viewed in the light most favorable to a jury verdict and if there is any substantial evidence to support the verdict it is our duty to sustain it. Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374; Smith v. State, 222 Ark. 650, 262 S. W. 2d 272.

The witness to whom it is alleged the defendant presented the questioned check testified that she had seen the defendant before and that she observed the appellant, Alma Eollie, endorse the name “Vera Mae Wilson” on the check when the appellant made a purchase, receiving therefor certain articles and the balance in cash; that the appellant was in the store some fifteen to twenty minutes; that approximately fifteen minutes after the appellant left the store and after it was learned that possibly the crime of forgery and uttering had been committed she went out on the street and discovered the appellant and brought her back in the store, the appellant still having in her possession the purchased articles and some cash. The individual whose name was signed as the drawer of the cheek testified that it was not her signature and she had issued no such check. Vera Mae Wilson, whose name appeared on the check as the drawee, testified that she had received no such check, was due no such check and that she did not endorse it. The State also offered other evidence which is unnecessary to detail here. The appellant denied the accusations and contended that she knew nothing about it, thus presenting a question of fact for the determination of the jury. The evidence adduced in this case is not only sufficient but more than ample to support the verdict.

The appellant contends that the Court committed error in refusing to permit John Moye, Jr., a witness for the defendant, to testify that based upon his twenty-eight years experience in the banking business and being familiar with comparison of signatures, that in his opinion, after studying the endorsement and appellant’s known handwriting, the appellant did not endorse the cheek in question. The general rule is well stated in 20 Am. Jur., Evidence, § 842, p. 706 as follows:

“There is no test by which one can determine with precision how much experience or knowledge of handwriting a witness must have in order to qualify as an expert for comparison. This problem is, generally speaking, left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.
It is not essential to qualify one as an expert to testify to comparisons of handwritings that he have professional knowledge or that he has made such work a specialty. It is enough that he has been engaged in some business which calls for frequent comparisons of hand-writings and that he has in fact been in the habit for a length of time of making such comparisons. Bank tellers and other bank officers and employees whose daily business and duties compel them to scrutinize and examine writings are competent experts respecting handwriting. * * *>> [Emphasis added.]

In view of Mr. Moye’s twenty-eight years of experience in the field of banking, during which time it appears he made frequent comparison of signatures, we perceive no reason why he would not be qualified to express his opinion on the subject of handwriting. However, in this case the appellant never offered sufficient proof to the Court that indicates she was prejudiced by the ruling of the Court. In answer to a question by appellant’s counsel and the Court if he was ‘ ‘ able to tell whether the endorsement “Vera Mae Wilson” on the check was in the same handwriting as the known handwriting of the appellant, Mr. Moye replied that he could not do so. Therefore, we think there was no abuse of discretion by the Trial Court in the ruling on this point.

The most serious question presented to us is the alleged error of the Court in not declaring a mistrial based upon the following occurrence which we must consider to be prejudicial and reversible error. After the jury retired to consider its verdict, one of the jurors left the jury room and came into the court room alone, the other eleven members of the panel remaining in the jury room. The Bill of Exceptions contains the following statement by the Court:

“In the first place, Mr. Ladd asked the Court about the form of the verdict and said if they voted to find her guilty on two counts and not guilty on two counts would that mean the same as one four year sentence and the Court advised him that it would. Whereupon, said juror returned to the jury room and soon thereafter the jury returned its verdict. The motion is overruled.”

Ark. Stat. Ann. § 43-2139 (1947) provides:

“After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.” [Emphasis added.]

This statute requires in unambiguous language that the entire jury and no less a number thereof must be present before the Court and counsel for the parties, or notice given to counsel, upon any proceeding affecting the rights of the defendant or the State as defined in this statute. Its provisions are mandatory. In the instant case it is undisputed that the entire membership of the jury was not in the presence of the Court nor the defendant or her counsel when this juror sought the advice of the Court in the manner so stated by the Trial Judge in his characteristic fairness.

In Aydelotte v. State, 177 Ark. 595, 281 S. W. 369, we said:

“The most serious question in this ease is whether or not the court erred in telling the foreman of the jury in the hall of the courthouse, apart from his fellows, in answer to a question propounded to the judge' by the foreman, that the jury could give less than one year for the lowest degree of homicide according to the instruction twice given to the jury. If this were all the record showed, it would undoubtedly be reversible error because contrary to § 3192, C. & M. Digest [Ark. Stat. 43-2139] * * *. The provisions of the above statute are mandatory, and where the facts call for an application of its provisions, unless the rulings of the court comply with the statute, they will constitute prejudicial error.” [Emphasis added.]

However, in this case it was held that the manifest error was corrected by the Court when it repeated the communication in the presence of the entire jury and counsel in the court room before the verdict was received and after the Court ascertained if the occurrence had exerted anv influence on their verdict. Bell v. State, 223 Ark. 304, 265 S. W. 2d 709; Hopkins v. State, 174 Ark. 391, 295 S. W. 36; Hinson v. State, 133 Ark. 149, 201 S. W. 811; Wacaster v. State, 172 Ark. 983, 291 S. W. 85.

The State contends the record or Bill of Exceptions does not disclose that any objection and exception was made by appellant to this procedure until after the jury was discharged and sentence was pronounced and, therefore, appellant is precluded from raising this point in her motion for a new trial. This is the general rule, however, there are exceptions. This point was specifically and thoroughly considered in the more recent case of Bell v. State, supra. In that case we held that the defendant did not waive an alleged error similar to the one in this case and, therefore, could properly raise it for the first time in a motion for a new trial.

Reversed and remanded.


author: Per curiam.

text:
    Aden v. State.
    5078
    370 S. W. 2d 187
    Per Curiam Opinion delivered September 9, 1963

      E. L. Hollaiuay, for appellant.

      Bruce Bennett, Attorney General, for appellee.
   Per curiam.

The appellant, Joseph Franklin Aden, was convicted of a felony in the Randolph Circuit Court and on February 6, 1963, was sentenced to four years in the penitentiary. On April 8, 1963, a partial record was filed in this Court and an appeal granted and certiorari was issued to bring up the entire record.

The appellant has filed in this Court a motion that he be allowed to proceed in forma pauperis. The motion is duly verified and appellant’s counsel certifies that he is serving without compensation. The appellant has complied with the requirements of the law so as to be allowed to proceed in forma pauperis. See Thornsberry v. State, 192 Ark. 435, 92 S. W. 2d 203; and, McCulloch v. Ballentine, 199 Ark. 654, 135 S. W. 2d 673; and see also Sec. 22-357 Ark. Stats., and Act No. 148 of 1953.

The Clerk of this Court is hereby ordered to forthwith direct a writ to the Clerk of the Randolph Circuit Court and to the Court Reporter of the Randolph Circuit Court who took down the testimony. The Reporter is directed to without delay transcribe and file the testimony with the Clerk of the Randolph Circuit Court; and the Clerk of the Randolph Circuit Court to complete without delay the entire transcript under the writ of certiorari issued to him in this case. The transcribing and filing of the testimony by the Court Reporter and the preparation of the transcript by the Clerk of the Court are to be furnished without expense; but this Court retains the right to hear resistance that may be made by any persons desiring to resist the pauper affidavit of the appellant.


author: Carleton Harris, Chief Justice.

text:
    Adams v. Bryant.
    5-2920

      370 S. W. 2d 432
    Opinion delivered September 16, 1963.

      D. B. Bartlett, Edward Patterson and Marie E. Woolsey, for appellant.

      A. F. House and Harry E. Meele, for appellee.
   Carleton Harris, Chief Justice.

Appellants, plaintiffs below, brought a taxpayers’ suit in which they sought injunctive relief against appellees, Light and Water Commissioners in the City of Clarksville. Appellants urged that City Ordinance No. 387, under which appellees were acting, was invalid; that certain expenditures made by appellees from surplus funds acquired in the utility operations, were unlawful; an accounting was sought from appellees, as well as a judgment against them, for particular payments hereinafter set out that had already been made, and the court was asked to enjoin and restrain the commissioners from making such further expenditures. After the filing of an answer and various amendments to the pleadings, the case proceeded to trial before the chancellor, who, after taking the cause under advisement, rendered his opinion. The court found that “the Clarksville Light and Water Company” was an agency of the City of Clarksville, empowered to perform those duties specifically outlined in the ordinance, and further found that the commission had performed its duties in accordance with the expressed desire of the City Council. The court refused to grant a judgment or issue an injunction, as prayed, but did direct that in the future “the agency do and perform only those acts which are necessary to operate the utilities, pay the debts, and to build up a sound business operating reserve from the profits of the organization and when that reserve has been established that all profits of the organization be paid in to the City Treasurer as a part of the General Revenue.” Except for the directive, all relief sought by appellants was denied. A decree was entered in accordance with the opinion, and from such decree, appellants bring this appeal. For reversal, three points are relied upon as follows:

I. Ordinance No. 387 is invalid and does not create a valid utility commission or constitute appellees a valid commission or agency of the city of Clarksville.

II. Purchase of corporate stock was illegal; and appellees should be required to place the money back into the treasury with interest.

III. Appellees should be required to pay back into the city treasury with interest the $1,000 placed by them in the Dairy Expansion Fund.

— I —

In 1949, the city of Clarksville, which operated its own light and power plant, and water works system (originally acquired through municipal improvement districts), enacted Ordinance No. 387, creating a commission to be known as the “Clarksville Light and Water Commission of the City of Clarksville, Arkansas.” In brief, the ordinance sets forth that the commission shall be composed of three qualified resident electors of the city of Clarksville, and provides that the commissioners shall be appointed by the City Council. Section 2 places the commission in full charge and authority of the light and water plants “with the power to operate and maintain them and to exercise all power necessary or incident to the management, operation and control of the properties for the furnishing of water and electricity to the inhabitants of the City of Clarksville.” Section 3 authorizes the commission to enlarge the plants and extend such services as may become necessary in order to serve the residents of the city, but further provides that the commission shall not have the power to increase the rates, nor power to issue revenue bonds or notes, without the approval of the City Council. Section 4 sets out that “out of any surplus in revenue after making provision for the payment of bonds and interest and operation, the Commission shall set aside a reasonable sum for the maintenance of the plant and the depreciation account. Any sums remaining after providing for the funds herein defined shall be declared to be ‘net revenue’ and the Commission at its discretion may use such part of the net revenue as may be necessary or proper for the extension or enlargement of the two plants or their distribution systems, and any funds not so used shall he held hy the Commission as reserve fund, to he used hy the Commission as it deems best.”

The italicized portion, in large measure, was the basis for the disbursements that gave rise to this litigation. Section 5 states that the commissioners shall have “wide discretion in the exercise of the powers conferred upon them, it being the purpose of this ordinance to grant such commission the powers ordinarily exercised by the board of directors of a corporation, * * *” and the section further provides the manner of removal of a commissioner for improper exercise of authority. Section 6 sets out that members of the commission shall not receive any compensation for services but shall be reimbursed for expenses incurred in the performance of duties.

The commission is presently composed of Leslie E. Bryant, Earl K. Johnston, and Wilson Jones.

Appellants contend that the Chancellor erred in holding the ordinance valid, and they stoutly maintain that Act 95 of 1939 [Ark. Stat. Ann. §§ 19-4001 through 19-4033 (Repl. 1956) ] should control. This act authorized the creation, in cities of the second class and incorporated towns, of a board to be known as “The Board of Public Utilities,” and the statute provided that this board should have the sole and exclusive control of the maintenance, enlargement, and operations of electric light and water plants and sewerage systems owned by improvement districts, or where such districts had paid out and were under control of the city or town council. Appellants point out certain conflicts between provisions of this act and Ordinance 387, including the fact that the “Board of Public Utilities” requires 5 members and, further, that a Board of Public Utilities cannot be created until the plan is first approved by a majority of the voters in an election. Other differences are cited, but we do not consider a discussion of this phase of appellants’ argument to be necessary since Act 95 does not make compulsory the operation of utility plants by this board. Section 19-4001 simply provides that such a board may be created. Here, the citizens of Clarksville apparently did not desire to create the Board of Public Utilities, and the authority to operate the utilities, therefore remained in the City Council. We agree with the Chancellor, that in passing Ordinance 387, the city created an agency to operate the utilities heretofore mentioned. The city had the express statutory power to own and operate these utilities [Ark. Stat. Ann. § 20-316 (Repl. 1956)], and we have held that a City Council may designate agents to act, within the scope of their agency, on behalf of the city. Jonesboro v. Montague, 113 Ark. 13, 219 S. W. 309, Gladson v. Wilson, 196 Ark. 996, 120 S. W. 2d 732.

The Clarksville Light and Water Commission was not delegated power of a legislative nature, (which would have been unlawful) as shown by the fact that the ordinance provides that the commission shall not have power to increase rates, nor to issue revenue bonds or notes; the commission was only given executive and administrative functions in carrying out the provisions of the law which authorized the city to own and operate the utilities. In other words, the commission was simply acting for the City Council. As was stated in City of Mayfield v. Phipps, 263 S. W. (Ky.) 37:

“The electric light and water committee named under the ordinance passed by the council of the city of Mayfield was merely the arm of the city government acting in an administrative capacity. The acts and doings of the committee were in legal contemplation, at least the acts and doing of the council, when concurred in and approved by the council. It is generally conceded that powers of a purely ministerial, administrative, or executive nature may be delegated by a municipal council to a committee or to some appropriate officer, although it cannot delegate to such committee the power to decide upon legislative matters properly resting in the judgment and discretion of the council.”

We hold that the commission is but an agency of the •City Council, and City Ordinance No. 387 is valid.

— II —

The record indicates that the management of the municipal utilities (light, water, and sewer) by the three commissioners has been quite successful. The systems have increased greatly in value, and the growth in electric sales has shown a substantial increase even though the municipal population actually decreased. The record reflects that various projects have received financial support from the commission, said financial contributions being made from the surplus acquired from the utility operations. For instance, the commissioners subscribed to a $1,000.00 interest in a Dairy Expansion Fund; the commissioners paid part of the cost of constructing a municipal swimming pool sponsored by the City Council, and, inter alia, made contributions to the following: The College of the Ozarks, the Clarksville Chamber of Commerce, the Poultry Association, the purchase of municipal fire trucks, Christmas lighting of the streets of Clarksville, and lights for the high school football field. A $5,000.00 expenditure was made by the commissioners for the purchase of stock in Johnson County Frozen Foods, Inc., and several thousand dollars were expended for engineering fees for a city airport, a road to a new shoe factory and construction of a sea wall.

While, obviously, most of these expenditures have no direct connection with the operation of a utility plant, the fact remains that practically all were for the general benefit of the Clarksville area, and all apparently received public approval. Such expenditures had been made for a long period of years; all of the larger disbursements were approved by the city council, and tacit approval was given to the rest; some of the projects were approved at public elections.

Only two specific expenditures are challenged on this appeal. One relates to the purchase of $5,000.00 worth of stock in Johnson County Frozen Foods, Inc. This corporation was created in an effort to stimulate the industrial development of the Clarksville community through aiding the local peach industry, which had suffered serious reverses, and the commissioners were approached by a committee, heading the industrial drive, and requested ta, purchase the aforementioned amount of stock. After being advised by the commissioners that the purchase would have to be approved by the City Council, the committee returned and delivered to the commission a written authorization signed by the Mayor and all members of the City Council, approving and authorizing the expenditures. The stock purchase was thereupon consummated and the stock was acquired as the property of the city. Appellants point out that the Arkansas Constitution, Article 12, Section 5, prohibits any county, city, town or other municipal corporation from becoming a stockholder in any company, association, or corporation, nor can money be appropriated to any corporation, association or institution. Appellants are correct in this contention, but it must be borne in mind that the relief sought under this point is not prospective; in such event, appellants would likely prevail. Rather, this is a suit to compel appellees to repay to the city of Clarksville, from their own personal resources, the $5,000.00 of utility earnings already expended by the commissioners in the purchase of stock. In Hendrix v. Morris, 134 Ark. 358, 203 S. W. 1008, the school directors purchased a school bus, though at that time (1918) school districts had no authority to buy school buses. Suit was instituted to obtain a judgment against the directors for the amount of the purchase. In holding that the school directors were not liable, this court said:

“In Hendrix v. Morris, 127 Ark. 222, 225, we held that the directors of this district and the treasurer had no authority to expend the money of the district for such purposes, but it does not follow that the directors are individually liable for the money thus expended. While it is alleged and admitted that the directors had no authority to issue the warrants for the purpose mentioned, there is no allegation that they acted willfully or maliciously. This is essential in order to make the directors personally liable. Where school directors act in good faith, believing at that time that they have authority under the statute to expend the money for the purposes for which they issue warrants, they will not be held individually liable to the district for moneys so expended, even though they have no such authority.
“ ‘The general rule,’ says 35 Cyc. p. 910, ‘is that the officers of a school district cannot be held personally liable on a contract made on their part as such officers and solely for the benefits of the district, unless guilty of fraud and misrepresentation, or unless they expressly contract to assume personal liability.’
“As is said by the Supreme Court of Minnesota, ‘Were the rule otherwise, few persons of responsibility would be found willing to serve the public in that large capacity of offices, which requires a sacrifice of time and perhaps money, but affords neither honor nor profit to the incumbent.’ ”

In the instant litigation, there is neither allegation nor proof that the directors acted willfully or maliciously. Unquestionably, the record discloses that they acted in good faith. They were of the opinion that they had the authority under the ordinance to expend the money for the purpose mentioned, and though this particular expenditure was not approved by ordinance, the same men who held the offices of Mayor and Councilmen respectively, in writing, approved this action of the commissioners. It would be manifestly unjust, and utterly foreign to equitable principles, to render a personal judgment against these commissioners who are not accused of fraud or sharp dealing, and apparently acted sincerely for the best interests of their home town. Appellees have undoubtedly spent considerable time in serving on the commission, without pay, and solely in the line of civic duty. In fact, to hold these men personally liable for the stock purchased would simply be to require an agent to repay to the principal a sum of money which the principal ordered the agent to spend.

It might also be mentioned that the abstract reveals no evidence to the effect that the company is insolvent or that it has been placed in bankruptcy, and accordingly there is no evidence to measure the damage which the city of Clarksville might have sustained because of the purchase of this stock. In the Arizona case of Henderson v. McCormick, 215 Pac. 2d 608, the Supreme Court stated:

“The authorities universally uphold the rule that a taxpayer may maintain an action only when such taxpayer and taxpayers as a class have sustained or will sustain pecuniary loss.”

"While appellants cite the constitutional provision prohibiting a city from becoming a stockholder in a company, they have not called upon the city to dispose of such stock.

In accordance with the reasoning herein set forth, we are of the view that the commissioners only acted as agents for the city, and no personal liability attaches.

— Ill —

The Clarksville Chamber of Commerce instituted a plan for a Dairy Expansion Fund for the purpose of promoting the Dairy Industry in the community, and the commission made a $1,000.00 investment in the fund, for which it received a certificate. The reasoning employed under the preceding discussion is likewise applicable here, though it is not clear that this item was specifically approved by the members of the Council. Here, again, no effort has been made to compel the city to dispose of or ‘£ cash in ’ ’ the certificate received.

As heretofore stated, the Chancellor, in interpreting the ordinance, issued a directive relating to future operations of the commission. This directive was as follows:

“All surplus funds derived from the operation of such utility systems which may remain, after making the disbursements therefrom and establishing reserves as hereinabove authorized, shall be paid by defendants into the general treasury of the City of Clarksville; all funds thus paid into the general treasury to be subject to the exclusive control of the municipal council.
“It is the intent of this directive that defendants shall not apply any of the public utility revenues toward any charitable or quasi-eharitable purposes or toward any program designed to promote the industrial development of the City of Clarksville.”

This action of the court was entirely proper and will result in future expenditures (not connected with the operation of the utilities) being made by the proper authority, the actual principal, vis., the City of Clarksville, through its City Council. Of course, if the citizens of that city desire to create a commission as set forth in the applicable legislative act, Act 115 of 1957 [Ark. Stat. Ann. §§ 19-4061 through 19-4082 (Supp. 1961)], there is nothing to prevent such action.

Affirmed.

       This is a trade name adopted by the members of the agency created by Ordinance No. 387 of the City of Clarksville.

       The commission also operates the sewer system.

       Emphasis supplied.

       Bryant was one of the original commissioners, named in the ordinance, and has been continually reappointed.

       Clarksville has now been a city of the first class for a number of years.


text:
    Looney v. Sears Roebuck.
    5-3035
    371 S. W. 2d 6
    Opinion delivered September 16, 1963.
    [Rehearing denied October 28, 1963.]

      Lester E. Dole, Jr., for appellant.

      Gaughan £ Laney, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a workmen’s compensation case. The appellant, Mrs. Looney, was an employee of appellee, Sears Roebuck and Company, at Camden, and received an injury which arose out of and in the course of her employment. Compensation was awarded by the Commission; but on this appeal Mrs. Looney presents two issues; (a) that she was entitled to a greater percentage of disability than was awarded; and (b) that the Commission should not have allowed Sears to take credit for certain wage payments.

I. The Percentage Of Disability. On May 4, 1957 Mrs. Looney received an injury which ultimately resulted in phlebitis in her left leg. A number of physicians testified, and from such testimony the Commission concluded that Mrs. Looney had suffered permanent partial disability of 30% to the body as a whole. Mrs. Looney insists that the preponderance of the evidence shows that her disability is at least 50% to the body as a whole. On appeal to this Court in a case like this one we are not concerned with the preponderance of the evidence: rather, we are concerned with whether there Avas substantial evidence to support the award made by the Workmen’s Compensation Commission. See Ark. Workmen’s Comm. v. Sandy, infra. A review of the evidence shows that there is substantial evidence to support the finding of the Commission. Dr. H. Reichard Kahle, an expert of New Orleans, Louisiana, stated that Mrs. Looney had a disability of 30% to the body as a whole; and such testimony is substantial evidence.

It is true that other physicians stated that Mrs. Looney had a greater percentage of disability than that stated by Dr. Kahle; but his testimony was substantial and the Commission had the right to follow his testimony, rather than that of some of the other experts. In Ark. Workmen’s Compensation Comm. v. Sandy, 217 Ark. 821, 233 S. W. 2d 382, we said:

“This court has held that the degree of disability suffered by an injured employee is a factual question to be determined from the evidence in the case. Caddo Quicksilver Corporation v. Barber, 204 Ark. 985, 166 S. W. 2d 1; Bookout v. Reynolds Mining Company, 213 Ark. 198, 209 S. W. 2d 881. In the instant case, the medical testimony as to the extent of claimant’s disability was conflicting, and the Commission evidently chose to accept the report of Dr. Cheairs. The courts are without authority to reverse the conclusion of the Commission in this regard. Mechanics Lumber Company v. Roark, 216 Ark. 242, 224 S. W. 2d 806. On the whole case, there is substantial evidence to support the Commission’s finding of fact, and the Circuit Court erred in setting aside the order of the Commission.”

We find no merit in the first point urged by Mrs. Looney.

II. Deductions Alloived Sears For Excess Of Wages Over Compensation. This point has given us serious concern. Mrs. Looney received her original injury on May 4, 1957. She was absent from work until July 29,1957, when she resumed work. During said absence, Sears paid her full wages, which amounted to $601.73 more than her workmen’s compensation payments would have been. This excess of $601.73 is here involved. Mrs. Looney resumed work in July, 1957, and worked until December 10, 1958, when her illness necessitated further rest. Sears paid her full wages from December 10, 1958 until March 1, 1959, which wages were $690.22 more than her workmen’s compensation payments would have been; and this excess of $690.22 is also here involved.

When Mrs. Looney wrote Sears in February 1959, offering to return to work, Sears advised her that her place had been filled, and that she was no longer employed. Thereafter, she received only workmen’s compensation payments of $35.00 per week instead of wages. When the Workmen’s Compensation Commission made the award to Mrs. Looney, the Commission allowed Sears to take credit against such award for the said $601.73 and the said $690.22 previously mentioned, and making a total credit of $1,291.95. Mrs. Looney insists that Sears is not entitled to deduct the said $1,291.95 from the amount of the workmen’s compensation award due her; and we agree with Mrs. Looney on this point.

In allowing Sears to take credit for the $1,291.95, the Workmen’s Compensation Commission was proceeding under the authority of Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S. W. 2d 450. But the facts in the case at bar do not bring this case within the holding in Lion Oil Co. v. Reeves. In that case, Lion paid Reeves during his injury period certain amounts ‘ ‘ aggregating full wages ’ ’; and Lion was allowed to receive credit for the excess of the amount paid over what the workmen’s compensation payments would have been for the period. The reason this Court allowed Lion such credit is found in this sentence in the opinion: “It is highly improbable that Reeves thought the excess payments he received were gratuities, and certainly the oil company was endeavoring to provide for the worker’s current needs.” In the case at bar, the excess of wages paid over workmen’s compensation payments for the same period was specifically intended by Sears as a gratuity. Here is the testimony of Sears’ witness and manager on this point:

“Q. Do you know why these overages were paid?
“A. Under company policy we normally, when someone is injured, pay them full salary for a period to see how they get along, in excess of the statutory requirements as we would in an illness case.
“Q. Then, if the person comes back to work, what disposition is made of the overage?
“A. None.
“Q. In other words, it is just a gratuity to them?
“A. Yes.”

Since the excess of wages over compensation as received by Mrs. Looney, was intended by Sears as a gratuity, Sears cannot now be heard to claim otherwise in the teeth of the quoted testimony. It was not until Mrs. Looney offered to return to work in February 1959 that Sears ceased paying wages and started workmen’s compensation payments of $35.00 per week, effective March 1, 1959. To allow Sears to now claim credit for the said excess of $1,291.95 would, in effect, be to allow Sears to recover payments it voluntarily made. The quoted testimony above clearly distinguishes the case at bar from that of Lion Oil Co. v. Reeves.

And for future guidance in such cases, we think it wise to now limit the holding of Lion Oil Company v. Reeves to its own particular facts. We hold that under-Ark. Stat. Ann. §81-1319 (m) (Repl. 1960), it is only “advance payments of compensation” for which the employer is entitled to reimbursement; and we make a clear distinction between “payment of wages” and “advance payments of compensation.” When an employer continues to pay salary or wages to an injured employee during any time of injury, and such payments are in excess of workmen’s compensation benefits, then when a workmen’s compensation award is subsequently made, the excess of the wages paid over the weekly compensation award cannot be deducted from the award. The policy of employers to pay an injured employee the prevailing wage scale while inactive during an injury period is in line with the modern concepts of employer-employee relation and is to be encouraged, but the employer cannot make such payments and later claim credit for the excess as against an award made.

It follows, therefore, that the Commission was in error in allowing Sears to deduct $1,291.95 from the disability payments to be made to Mrs. Looney; and for such error the judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court with directions to remand to the Commission to correct such error in the award and in the attorneys ’ fees calculated on it.


author: George Rose Smith, J. Jim Johnson, Associate Justice

text:
    Griffin v. Southland Racing Corp.
    5-3135
    370 S. W. 2d 429
    Opinion delivered September 16, 1963.

      Nance & Nance and A. J. Thomas, Jr., for appellant.

      Hale & Fogleman, for appellee.
   George Rose Smith, J.

The appellee Southland owns a greyhound race track near West Memphis. The appellant Griffin buys, breeds, and sells racing dogs. The management of Southland decided that Griffin was not a desirable spectator at the track and refused to admit him to the premises. Griffin brought this suit to restrain Southland from denying him admittance to the track. This appeal is from an order sustaining a demurrer to Griffin’s evidence and dismissing his complaint. In reviewing such an order we give the plaintiff’s proof its strongest probative force. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225.

Griffin owns a half interest in 120 shares of stock in the Southland corporation. He seeks admission to the track, however, not in the exercise of his rights as a stockholder but in the pursuit of his vocation, for he must observe dog races at firsthand to select the best animals for breeding.

In his complaint Griffin based his cause of action upon the fact that he held two free passes to the South-land track. One was a stockholder’s pass issued by Southland, the other a tax-free season pass issued by the Arkansas Racing Commission. Each pass recites that it may be revoked by the issuer. Griffin’s stockholder’s pass was revoked by Southland before the trial beloAv, but his tax-free pass has not been revoked by the Racing Commission.

The chancellor’s decision was correct. If Griffin had based his complaint upon his willingness to pay the price of admission to the track rather than upon his possession of the two passes it is clear that he could not have stated a cause of action. Apart from any possible issue of civil rights, which are not involved here, the controlling rules of law are firmly settled by many decisions in many jurisdictions. The proprietor of a privately owned place of amusement, such as a race track or a theater, is not under a common carrier’s duty to render service to everyone who seeks it. It is uniformly held that the proprietor may refuse to admit, or may eject from his premises, persons he thinks to be undesirable. If the prospective patron has already bought his ticket he may be able to maintain an action for breach of contract, or if he is ejected with unnecessary force he may be able to maintain an action in tort. But, owing to the management’s right to exclude anyone it pleases, the patron cannot obtain the aid of the courts in seeking to compel his admission to the premises. Many of the cases are reviewed in Garifine v. Monmouth Park Jockey Club, 29 N. J. 47, 148 A. 2d 1, and Madden v. Queens County Jockey Club, 296 N. Y. 249, 72 N. E. 2d 697, annotated in 1 A. L. R. 2d 1160.

Griffin’s position is not strengthened by his possession of the unrevoked tax-free pass. The statute permits the Racing Commission to regulate the issuance of such courtesy passes, Ark. Stat. Ann. § 84-2835 (Repl. 1960), but in fact no regulations have been issued. Even though the passes are in form issued by the Commission the testimony shows that in reality the Commission leaves the whole matter to Southland, which distributes passes as it chooses. Griffin’s pass was not actually issued to him in the first instance; he received it as a gift from someone else.

It is quite apparent that these passes are intended to serve no purpose except that of providing free admission to the track, as an inducement to public attendance at the races. There is no indication that any effort is made to keep the passes from coming into the hands of bookmakers, touts, pickpockets, and others unwelcome at the track. Thus the pass does not represent in any degree whatever an expressed desire on the part of the Commission that a certain person is to be admitted to the track. The pass is simply a substitute for the price of admission—nothing more. It follows that since a prospective patron may be excluded by management even though he offers to pay the price of admission, he may be similarly excluded when he seeks entrance as the holder of a pass.

Affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority view. This is an appeal from an order sustaining a demurrer to appellant’s evidence. In such cases we are bound by the rule laid down in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 295. That case requires the trial court to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.

The issue in determining whether a prima facie case has been established in this case, as I see it, is the issue of the right of Southland Racing Corporation to revoke the season pass held by appellant and not the issue of whether a proprietor of a privately owned place of amusement is under a duty to render services to everyone who seeks it. If that was the issue I would unhesitatingly agree with the majority opinion and the authorities therein cited to sustain their position. A careful reading of these authorities reveals, however, that they do not touch top, side or bottom the question of a pass or the revocation of a pass.

The operations of a greyhound race track in this state is a highly controlled and regulated privilege granted by the State of Arkansas and the Rules and Regulation of the Arkansas State Racing Commission. Arkansas Statutes Annotated, §84-2827(A) (Repl. 1960), reads:

“The Commission shall have full, complete and sole power and authority to promulgate rules, regulations and orders, and prescribe conditions, under which Greyhound Racing shall be conducted by a franchise holder, but the power and authority so granted shall be exercised by the Commission in a reasonable manner, and the holder of any franchise, or any taxpayer, shall have redress to the Pulaski County Circuit Court for any wrong committed by the Commission in the exercise of the power and authority granted herein. ’ ’

The law also gives the State Racing Commission the control and regulation of the issuance of all tax-free passes. Ark. Stat. Ann. §84-2835(B) (Repl. 1960).

“The issuance of all tax free passes shall be under the regulations or orders of the Commission.”

A season pass contains the following language:

“1963 Season Pass Southland Greyhound Park, West Memphis, Ark.
Under the auspices and with the compliments of the Arkansas State Racing Commission.
/s/ J. Orville Cheney Issued to :
Secretary -
Form 5. ’ ’

' The reverse side of a season pass reads as follows:

“This ticket entitles person to whom issued admission to the track any night during 1963 season. It is not good for admission to the Kennel Club. Arkansas State Racing Commission reserves the right to revoke this courtesy without notice when deemed necessary.”

The rules and regulations of the Arkansas State Racing Commission, of which we take judicial notice, Kansas City Southern R. Co. v. State, 90 Ark. 343, 119 S. W. 288, expressly state for what causes a franchise holder such as appellees can remove a patron from its premises.

Rules Governing Greyhound Racing, §125-F:

“Employees or patrons who are careless of the safety of themselves and others., negligent, insubordinate, dishonest, immoral, quarrelsome or otherwise vicious, or who do not conduct themselves in such manner and handle their personal matters while on the premises of said Greyhound Track in such a way that the franchise holder or Commission will not be subject to criticism or loss of good will, will be prohibited or removed from the premises of any Greyhound Track and denied wagering privileges.”

Appellant introduced evidence showing that he possessed a season pass which was issued by the State Racing Commission; that the pass had not been revoked by the Commission; that Southland Racing Corporation summarily refused without cause to admit appellant to their premises; and continues to deny this privilege to appellant ; that he is a breeder, buyer and seller of greyhound dogs, that in pursuit of his vocation he must observe dog races; that he is being irreparably injured by the denial of his admission to the track to carry on-his lawful business. All of which considered together in the light of the law and the rules governing passes as set out above, in my view clearly makes a prima facie case under the rule of Werbe v. Holt, supra.

For the reasons stated, I respectfully dissent.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice Sam Robinson, Associate Justice

text:
    Ward v. State.
    5073
    370 S. W. 2d 425
    Opinion delivered September 16, 1963.

      Lee Ward, for appellant.

      Bruce Bennett, Attorney General, by Bussell J. Wools, Assistant Attorney General, for appellee.
   Paul Ward, Associate Justice.

Appellant, William B. Ward, was sentenced to a term of three years in the state penitentiary for the crime of fondling a male child under the age of 14 years in violation of Ark. Stat. Ann. §41-1128 (Supp. 1961). On appeal appellant contends the case should be reversed because of three alleged errors. One, the jury was invited to let the court fix the punishment. Ttvo, the argument of the prosecuting attorney was prejudicial. Three, the court should not have permitted the introduction of testimony pertaining to prior and unrelated incidents. These alleged errors will be discussed in the order above mentioned.

One. Instruction No. 5 given, along with other instructions, when the case was submitted to the jury, reads:

“You are further instructed that if you find the defendant guilty as charged but are unable to agree upon the punishment to be imposed, you may return a verdict of guilty and leave the punishment to be fixed by the court.”

Arle. Stat. Ann. §43-2306 (1947), in pertinent part and in substance provides, that when “a jury finds a verdict of guilty, and fails to agree on the punishment to be inflicted . . . the court shall assess and declare the punishment. ...” The question then arises: When should the jurors be told they can leave to the court the responsibility of fixing the punishment—before they retire or after they find they cannot agree Í The giving of a similar instruction as it was given here has been approved by us previously. See: Knighton v. State, 210 Ark. 248, 195 S. W. 2d 47; Keese and Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542; Downs v. State, 231 Ark. 466, 330 S. W. 2d 281. In the case of Underwood v. State, 205 Ark. 864, 874, 171 S. W. 2d 304, the court seemingly indicated a preference for the procedure followed in the ease under consideration—before the jury retired.

Appellant, obviously aware of the above decisions, contends however that the statute clearly indicates it is the province of the jury to first honestly endeavor to fix the punishment before they are informed they can leave the responsibility to the court. The reason given by appellant for his position is that it is human nature for a person to avoid making difficult decisions when he knows it is not necessary to do so. This line of reasoning seems to find some support in the recent case of Edens v. State, (January 14, 1963), 235 Ark. 996, 363 S. W. 2d 923, where, in commenting on the decision in the Underwood case, we said:

“Even so, we did not intend to state that the instruction should routinely be given in every case, and if the Underwood case has been so interpreted we take this opportunity to point out that ordinarily there is no occasion for the jury to be supplied with this information.”

Thus, it appears, we have not previously announced any required rule in this regard to guide the trial courts. So, after careful consideration, we now hold that the jury should not be told initially they can let the court impose the punishment but should be told only after they report they have reached a verdict of guilty but are unable to agree on the punishment to be imposed. We do not reverse the trial court for failing to follow this procedure in this instance because it was not aware of what we later said in the Edens case, supra.

Two. Appellant strenuously insists the jury was prejudiced by the allegedly heated argument of the prosecuting attorney, which argument we have carefully read although it is not fully abstracted. Since we have concluded that the case must be reversed and remanded because of the error later discussed, we deem it unnecessary to comment on all the objections raised by appellant to the argument.

As stated in Hall v. State, 161 Ark. 453, 257 S. W. 61, and in many other decisions of this Court, we, recognizing that jurors are men of good sense and sound judgment, have always held that a wide range must be given to the argument of counsel and much discretion must be left to the trial court. In particular, appellant here refers to certain remarks of the prosecuting attorney to the effect that he and his deputy would receive no extra pay if appellant were convicted, and that appellant’s attorney (once a deputy prosecuting attorney) would have prosecuted the appellant had the same facts been presented to him. We think the jurors were capable of assessing such arguments for what they were worth—that they had no bearing on the guilt or innocence of appellant. Consequently no reversible error has been shown.

Three. Finally it is contended the case must be reversed because the jury was allowed to consider evidence intended to prove appellant had engaged in similar unnatural sex activities with other young boys on former occasions.

The statute under which appellant was convicted provides, in all pertinent parts, that it shall be unlawful for any person with lascivious intent to place his hands on the sexual part of a male under the age of 14 years. The succeeding section fixes the punishment for violation at one to five years in the penitentiary.

Appellant, age 36, went to the Beasley home at about 9:30 a.m. to install telephones. Mrs. Beasley, who was out temporarily, had left her son Tommy, age 11 (together with his brother Terry, age 8), at the house to point out the locations for the phones. Tommy stated positively that appellant fondled him two or three times on that occasion. He was corroborated in part by Terry. Appellant denied emphatically and categorically that he in any way mistreated Tommy. There was no other direct testimony to show appellant’s guilt or innocence of the offense for which he was being tried. This situation obviously presented a clear-cut issue of credibility to the jury.

On behalf of appellant it Avas shown that he had a good reputation; that he had been post commander of the American Legion, and was now its service officer; that he belonged to the Masonic Lodge; and, that he had once served as Chapter Dad of the local DeMolay organization. On the other hand the state, evidently hoping to convince the jury that Tommy and Terry Beasley (and not appellant) had told the truth, offered testimony tending to convince the jury that appellant had, on two former occasions, indulged in similar unnatural sex relations Avith other boys.

We have concluded that the testimony relative to one of the incidents was clearly inadmissible and prejudicial, and calls for a reversal. Over appellant’s objections and exceptions a witness was permitted to testify that some four or five years previously, during a conclave of the DeMolay organization in á gymnasium at Piggott, he saw appellant engage in some acts which he thought were unbecoming; that appellant had one of the smaller boys kinda armed up, had his arm around him nudging him toward the south door, and he presumed he was loving the boy up a little bit—this didn’t continue very long— the boy’s father was present. Regarding the same occasion, another witness gave similar testimony, but neither witness saw anything approaching a violation of the statute.

We think the above testimony was most prejudicial, and we have no way of knowing to what extent it influenced the jury. It is reasonable to suppose the jury gave considerable weight to the testimony because it was given by two witnesses who, apparently, stood high in the community. One was with the Weights Division of the State Police and lived in Piggott all his life; the other was a grain broker and a member of the International Supreme Council of the Order of DeMolay, and he was also an Executive Officer of this State.

It is difficult to think of a more dangerous precedent than to sanction the type of testimony above described. It would tend to establish guilt based on suspicion alone. The jury may have attached the most lascivious motives to what could have been perfectly innocent and meaningless acts of appellant.

In respect to the other incident a different situation obtains. There, the testimony was definite and left nothing to the imagination. However, since the case may be retried, we deem it advisable to discuss a contention made by appellant here and which may be made at another trial.

In substance, appellant contends that testimony of other similar offenses is admissible only to show intent, and, that since no question of intent is presented in this case, all the testimony (regarding the previous incidents) was inadmissible. We agree that the issue of intent (on the part of appellant) is not an issue here. To sustain his point appellant relies almost entirely on what we said and held in the case of Alford v. State, 223 Ark. 330, 266 S. W. 2d 804. We said there that “our cases very plainly support the common-sense conclusion that proof of other offenses is competent when it actually sheds light on the defendant’s intent; otherwise it must be excluded.” The statement was correct as applied to the particular facts of that case, and the opinion shows it was to be so limited. It appears, however, in the Alford case and in other decisions of this Court that a different rule applies to unnatural sex cases such as in the case under consideration. In the Alford case we recognized this distinction in using the following language:

< < * íí * where the charge involves unnatural sexual acts, proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594; Roach v. State, 222 Ark. 738, 262 S. W. 2d 647. Such evidence shows not that the accused is a criminal, but that he has (a depraved sexual instinct’ . . .” (Emphasis added.)

In the Hummel case, supra, where the Court was concerned with an unnatural sex crime, testimony, relative to similar previous acts, was introduced over defendant’s objection. There, on appeal, Ave approved the following instruction:

“You are instructed that evidence introduced by the state in this case, of a similar offense occurring prior to the offense charged in the indictment, was admitted solely for the purpose of shoAving the defendant’s intent, motive, habits and practices, and you may consider it for this purpose and this purpose only. * * * ” (Emphasis added.)

In our opinion the distinction above pointed out is based on sound reasoning. If it can be shown that a person has a depraved sexual instinct or that he has the habit of indulging in unnatural sex activities such fact would tend to corroborate other testimony that he committed the unnatural offense for which he is being tried.

Likewise, Ave believe such testimony should not be excluded solely on the ground that it is too remote in this particular case. The question of remoteness of the incidents has not been raised by appellant on this appeal, but it could be raised on a second trial. The general rule is that such testimony must not be too remote. However, as pointed out above, a case of this kind is not, in all respects, governed by the general rule. So, once it is established that a mature person has developed the proclivity to indulge in unnatural sex acts, we are not prepared or willing to say it would be erased by the lapse of 4 or 5 years.

For reasons above set out the judgment is reversed, and the cause is remanded.

Reversed and remanded.

McFaddin, J., concurs; Robinson, J., dissents.

Ed. F. McFaddin, Associate Justice

(concurring). I concur in the reversal. Not only was the evidence as to the gymnasium incident inadmissible, as the Majority holds; but I am of the opinion that the evidence as to the other incident (as referred to in the final paragraph of the Majority Opinion) was also inadmissible. That incident occurred more than five years before the offense for which the appellant was here being tried; and I think testimony of an incident more than five years away is too remote, and is inadmissible.

Sam Robinson, Associate Justice

(dissenting). Of course we all make errors, and in my humble opinion the majority is making a most serious error in reversing this case. Those committing crimes through the commission of unnatural sex acts are perhaps the most dangerous of criminals. It frequently happens that such persons commit the more serious crime of murder to avoid disclosure of their sexual proclivities. One can hardly read the daily papers on any day without seeing the account of a murder committed in connection with a sex crime. Such cases have been before this court several times. Smith v. State, 205 Ark. 1075, 172 S. W. 2d 248; Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59. But frequently the killer is never apprehended. He has evaded detection by killing the victim of his lust—the only witness who could identify him.

The majority concedes that evidence of other unnatural sex offenses committed by the defendant is admissible in a case of this kind, but the majority then proceeds to reverse the judgment because the State introduced evidence of what could be considered an unnatural sexual act committed by the defendant. If the defendant put his arms around the little boy and “hugged him up” in an improper manner, this would be an unnatural sexual act, and according to the rule of evidence recognized as valid by the majority, evidence of such act could be properly introduced. On the other hand, if the placing of his arms around the child was merely a friendly gesture, certainly evidence of such act would in no way be prejudicial to the defendant. It would be just like proving that he shook hands with the little boy. In these circumstances the trial court thought the evidence was admissible for what it was worth.

If the defendant’s act was improper, it was admissible. If, on the other hand, it was not improper, there could be no prejudice to him. Whether the defendant’s conduct indicated depraved sexual desires or merely a friendly gesture was to be argued by the lawyers in the case, but in any event, the evidence was admissible to show the jury what happened.

For the reasons set out herein, I respectfully dissent.


author: Sam Robinson, Associate Justice.

text:
    Williamson v. Rainwater.
    5-3039
    370 S. W. 2d 443
    Opinion delivered September 16, 1963.

      McDaniel, Ward S Mooney, for appellant.

      Ponder & Lingo, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Mrs. Willie B. Williamson, filed this suit alleging that she owns lands in Section 5, Township 15 North, Range 1 East, in Lawrence County; that appellee, R. S. Rainwater, owns adjoining lands in Section 4; that Rainwater intended to dig a drainage ditch on appellant’s property and asked that he be enjoined. The Chancellor held that appellant failed to meet the burden of proving by a preponderance of the evidence that the ditch, when dug, would be on her property. The complaint was, therefore, dismissed.

In his answer, appellee alleged, among other things, that Mrs. Williamson’s husband, now deceased, an owner by the entirety, had built a fence on the line appellee maintains is the correct one, and that all parties recognized such fence as being the dividing line. The ditch is located east of the fence—on Rainwater’s side of the fence.

Appellant argues that the preponderance of the evidence shows that the true section line is about 50 feet east of the location of the fence. But even so, if the fence was recognized for a long time by the parties in interest as the dividing line between the properties, according to many decisions of this court, the fence will be recognized by the courts as the dividing line. Deidrich v. Simmons, 75 Ark. 400, 87 S. W. 649; Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18; Batson v. Harlow, 215 Ark. 476, 221 S. W. 2d 17; Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490; Weston v. Hilliard, 232 Ark. 535; 338 S. W. 2d 926; Stewart v. Bittle, Law Reporter, May 27, 1963.

Mr. Williamson built the fence about 1946. It was constructed on or only a few feet from a line, marked by blazed trees, established by appellee, Rainwater, several years previously when he purchased Section 4. There is no doubt that both Mr. Williamson and Mr. Rainwater acquiesced in the theory that the fence was on the true line. In the first place, Mr. Williamson built the fence. It is not likely that he would have left 50 feet of his land outside his fence. He may have built the fence a few feet from what he considered the section line in order to give him control of the fence, but surely he would not have intentionally left 50 feet of his land outside the fence.,. There does not appear to be any topographical reason for putting the fence at one place rather than the other.

In 1953 Mr. Rainwater started clearing his land with a bulldozer and cleared right up to the fence. Mr. Williamson was present and made no complaint. In fact, in the absence of Mr. Rainwater, he pointed out the fence as being the line to the operator of the bulldozer. Later, Mr. Williamson and Mr. Rainwater walked over the property and the only suggestion made by Mr. Williamson was that a tree that had fallen on the fence should be removed to preserve the fence. Subsequently, Mr. Williamson had some of his land cleared right up to the fence and no further.

It cannot be said that the preponderance of the evidence shows that appellant has ever at any time had possession of any of the land east of the fence. In the circumstances we think the fence was established as the dividing line by the acquiescence of the parties.

Affirmed.