author: George Rose Smith, Justice.

text:
    LOWELL PERKINS AGENCY, INC v. Billy DECKER
    73-246
    506 S.W. 2d 559
    Opinion delivered March 18, 1974

      Lightle, Tedder & Hannah, for appellant.

      Leroy Froman, for appellee.
   George Rose Smith, Justice.

This is an action brought by the appellee, Billy Decker, for an accounting of partnership profits. In December, 1968, Decker and the appellant corporation entered into an oral agreement for the operation of a garage owned by the appellant at Searcy. The appellant is an accounting and insurance agency owned by Lowell Perkins, a public accountant. Decker was to contribute his labor and skill to the operation of the garage. In the following May the parties orally agreed to add to the venture an automobile parts business, also owned by the appellant.

The partnership was terminated by agreement in September, 1969. Perkins, whose agency had been keeping the partnership books, submitted an accounting of the profits, which were to have been divided equally. Decker questioned the accuracy of Perkins’ accounting and brought this suit for $8,781.37 as Decker’s asserted share of the undistributed profits. The circuit judge, hearing the case without a jury, awarded Decker a judgment for $1,981.94. The appellant’s only argument for reversal is that there is no substantial evidence to support a judgment for Decker in any amount.

It is possible that we might, upon the same record, agree with the appellant if this were an appeal from a court of chancery and we were reviewing a chancellor’s findings de novo.. In a law case, however, the scope of our review is comparatively limited. Absent special findings of fact, which were not made in the court below, the circuit judge’s conclusions have the force of a jury’s general verdict. Nowell v. James, 217 Ark. 932, 234 S.W. 2d 378 (1950). Moreover, under the holding in the leading case of Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49 (1928), if the testimony in the case would have supported an even larger amount, the verdict will be sustained although it is not consistent with either party’s theory of the case.

The Fulbright rule controls here. The conflicting testimony of Decker and Perkins, who were the only witnesses, presented a clear-cut issue of credibility for the circuit judge’s determination. Decker asserted in his pleadings, and repeated on the witness stand, that there were many specified errors in the accounting submitted by Perkins. The total discrepancies greatly exceeded the amount of the court’s judgment; so under the Fulbright case we cannot say that the judgment is without substantial evidentiary support.

A fair summary of the appellant’s argument appears in its brief: “The only proof submitted by Appellee was his statement and accusations which were not verified in any manner. The Appellant’s proof was all verified and documented by the joint venture books and cancelled checks.” Even so, the partnership records were kept by the appellant itself and therefore are not to be considered as undisputed. Moreover, Perkins’ accounting and its supporting exhibits have not been abstracted, which leaves us without adequate information about the facts underlying the appellant’s basic contention.

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Isiah RUSS v. CITY OF CAMDEN
    CR 73-167
    506 S.W. 2d 529
    Opinion delivered March 18, 1974

      Lester E. Dole, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Isiah Russ was convicted by a jury of possessing intoxicating liquor for the purpose of sale without a license. The only point for reversal which we deem necessary to discuss — and in fact the only point considered to have merit — is the allegation that error was committed by the State in not producing an alleged search warrant at the trial.

For their search of the home and premises of appellant, the officers said they relied on a search warrant. The officers testified that the original warrant was handed to appellant, that he read it and handed it back to the officers. Appellant and his wife testified that they never were served with such a warrant; in fact, that one was never shown them. Be that as it may, the important fact is that in the trial of this case in circuit ‘ court, the officers were questioned concerning the whereabouts of the search warrant. The reply was to the effect that it was introduced in evidence in the trial in municipal court. Documents purporting to be a transcript of the municipal court proceedings were filed in the circuit court. No search warrant, nor affidavit for search warrant, appears among those papers.

The United States Constitution, Amend. 4, and the Arkansas Constitution, Art. 2 § 15, are the cornerstones of our security against unreasonable search and seizure. Those constitutional requirements, together with our most recent statute, Ark. Stat. Ann. § 43-205 (Supp. 1973), rigidly protect the issuance of a search warrant without support of an accompanying affidavit for the search warrant. In Mapp v. Ohio, 367 U.S. 643 (1961) there was this situation which that court thought worthy of comment: “At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for”. When the State relies on a search warrant as justification for its search the burden is on it to show compliance with the statute, both as to the affidavit and the warrant itself. The responsibility is on the State to produce those documents at trial; otherwise, the accused has no opportunity to assail their validity. If the State cannot produce either of the instruments then it should follow approved procedure for establishing the contents thereof.

In view of the possibility of a retrial we should comment on one other argument advanced here. Appellant contends it was the duty of the State to produce for cross-examination the informer who purportedly made a purchase of intoxicants from appellant. The privilege of a police officer in refusing to divulge the identity of an informer depends upon the circumstances of a given case. Davis v. Circuit Court of Pulaski County, 244 Ark. 142, 424 S.W. 2d 149 (1968). In Bennett v. State 252 Ark. 128, 477 S.W. 2d 497 (1972), we said: “Generally, whether the privilege of nondisclosure of an informer’s identity applies depends upon whether the informer was present and participated in the alleged illegal transaction with which the defendant is charged, or whether the informer was ‘merely’ one who supplied only a ‘lead’ to law enforcement officers to assist them in the investigation of a crime. The identity of an informer is required in certain instances, particularly where he was present as a participant”.

Reversed and remanded.

Harris, C.J., dissents.

Fogleman.J., dissents.

John A. Fogleman, Justice,

dissenting. I cannot agree to the reversal of this case. To do so, the court must say that the finding of the trial judge as to the authority for the search had insufficient evidentiary support. Although it seems to me the substantial evidence rule should apply, I would affirm regardless of the test applied on review here — be it “substantial evidence,” “preponderance of the evidence” or “clearly erroneous.”

There was never any motion to suppress the evidence obtained by means of the search. A pretrial hearing was had upon a renewal of a motion to dismiss filed by appellant in the municipal court, where the case was first tried. The ground stated in that motion was that appellant was not presented with a search warrant or given a copy of it before he had been taken to the police station, which was subsequent to the search and the confiscation of a quantity of liquor, wine and beer. When the case was called for trial, appellant’s attorney characterized the motion as one to dismiss the case for lack of jurisdiction. He never contended that it was anything else. The attorney expressly stated that the motion was not one to suppress evidence. Just before the beginning of the hearing appellant’s attorney merely stated that no search warrant was in the file, without further comment.

In his testimony on the motion, Isiah Russ, while denying that the officers read or showed him a search warrant at the time of the search, admitted that they gave him a copy of the warrant about two and one-half hours after the officers had brought him to the police station. He also testified that the officers told him they had “somethihg in our pocket” saying they could search. Lieutenant Jack Dews of the Camden Police Department testified that he obtained the search warrant from Judge Plunkett and that, when he, Officer Greenlee and Mr. Biagraves knocked on appellant’s door, he told appellant they had a search warrant to search for alcoholic beverages, read it to him and saw Russ read it. Dews confirmed Russ’ testimony that a copy of the warrant was given Russ at the police station. Dews, in response to an inquiry by the trial judge, stated that the warrant had been introduced at the trial in municipal court. James Biagraves, an investigator for the Alcoholic Beverage Control unit, who accompanied Dews on the search, testified Dews had a search warrant, advised Russ of it, read and handed it to Russ, who handed it back to Dews. This testimony was corroborated by Patrolman Greenlee of the Camden Police Department. The court’s inquiry of Officer Greenlee whether the city had the warrant drew the response that it had been misplaced.

No objection was made to any of the testimony recited hereinabove, but after all of it had been heard, appellant’s attorney moved that polygraph tests be administered to appellant and the officers. When this motion was denied, this objection and response ensued:

MR. DOLE: Save our exceptions. They haven’t got the warrant in it. If the warrant is not introduced, then this is nebulous evidence.
THE COURT: That’s the first time that’s been brought up. In view of this, do you have the warrants?

The circuit judge then denied the motion to dismiss, finding that the warrant had been read to Russ at the time of the search and took under advisement the belated motion to dismiss because the prosecution had failed to produce the search warrant. This was denied after the trial, upon the basis of the court’s finding that there was substantial evidence that the search warrant was issued and that the defendant was given a copy of the same.

During the trial Police Chief Billy J. Allison testified that he saw the search warrant, that he had taken it to municipal court where he had seen it introduced into evidence, but that he had been unable to-locate it at the time of the trial in circuit court. He also stated that normally two copies are made of search warrants, one of which is turned over to the court and the other to the defendant.

Appellant’s point for reversal is stated thus:

Conviction should be reversed because no search warrant was ever issued to appellant at time of arrest and none produced at the trial.

He argues that a warrant had to be served by giving the defendant a copy at the time of the arrest or seizure, and complains that without introduction of the warrant itself, there is no evidence to support the search. He states the question thus:

The question before this honorable Court is was this in compliance with our existing search and seizure laws. Appellant states it is not and that the trial Court lacked jurisdiction to proceed.

In order to find that the search was unreasonable, the circuit judge would have had to hold that the testimony of each of the officers was not credible, and that their testimony was outweighed by an inference drawn from the testimony of Russ that the search warrant was drawn after he arrived at the police station. I submit that such an inference is unwarranted and that some presumption of verity should arise from the testimony of four police officers who, presumptively, were only performing a routine duty. No attack was made on the credibility of any of the officers.

Even though it might be the better practice for searching officers to do as these said Lt. Dews did, i.e., at least read the warrant authorizing the search to the occupant of the premises searched or deliver him a copy, this is not required. We laid such a contention to rest in Easley v. State, 249 Ark. 405, 459 S.W.2d 410, saying:

A search warrant serves as the officer’s authority to make the search and seizure as well as his directions as to where to search and what to seize. We have no statute in Arkansas requiring the officer to exhibit or reveal the search warrant at the time of the search but, as a matter of course, he must reveal his identity and his authority when requested to do so by the owner, occupant or one in rightful possession of the property to be searched or the thing to be seized.
We are of the opinion, and so hold, that the description of the property as set out in the search warrant was sufficient, and that it was not necessary for the officers to notify Easley of the impending search or to serve the search warrant on him.

Nothing whatever is said by appellant about the absence of an affidavit for the search warrant, so I will not dwell on that subject, except to say that the burden was upon the defendant to show a lack of probable cause for a search warrant that was issued. Moore, Frazier & Davidson v. State, 244 Ark. 1197, 429 S.W.2d 122.

Assuming that the best evidence rule applies when the state relies upon a search warrant to establish reasonableness of a search, I submit that the parol evidence established the issuance of a search warrant. This court treated the matter as early as 1860. In Gracie v. Morris, 22 Ark. 415, Gracie was sued upon allegations that he had broken into the dwelling of the plaintiff and taken personal property therefrom. Gracie defended upon allegations that he acted in obedience to the command of one Blakely, a lawful officer who had a warrant issued by a justice of the peace. The trial court rejected secondary evidence to establish the existence and content of the process under which Gracie sought to justify his actions, consisting of testimony to prove that a search warrant was issued, executed and returned, but thereafter lost or mislaid. Although this court held that production of the record of the warrant was indispensable, so long as it is supposed to be in existence, we reversed the judgment because of the refusal to permit this testimony, saying:

The defendant, Gracie, exhausted every means in his power to obtain the proof under which he justified, but all to no purpose, and though there was no direct proof as to the manner of its loss, yet it is perfectly clear to our minds that it was not within his reach. If a party in the situation of the defendant could not be permitted to introduce parol evidence of the authority under which he acted, nothing could be more perilous than to yield obedience to an officer in the execution of the law. He has no right to the possession or control of the paper, and it would be productive of the greatest hardship and injustice, if he were left remediless in the event of the negligence, misfortune or corruption of the officers who are entrusted by the law with its safe keeping. We are clearly of the opinion, that if the defendant could prove the existence and contents of a paper, which, if produced, would have been a legal warrant for the part that he performed in the premises, he ought to have been permitted to do so. He offered the best evidence of which the case was susceptible, as the justice who issued, and the constable who executed it, necessarily must have been more conversant with the facts sought to be established, than any other persons.

Even though Gracie was not an officer responsible for the return of the warrant, the principle stated has been applied in other cases. In Gracie, we relied upon Fowler v. More, 4 Ark. 570, a civil action in which the court sustained the establishment of a summons and its return by parol evidence. In Gates v. Bennett, 33 Ark. 475, we said it was competent for the appellants to prove by parol evidence that a complaint and affidavit were filed in a replevin suit, a writ issued, bond executed and return made upon the writ, all in regular form, and had been lost or destroyed, even though the transcript of the justice of the peace court in which the proceedings were had, certified as a complete and perfect transcript of the docket entries in that court, revealed none of them.

Although a warrant for arrest, rather than a search warrant, was involved in Calhoun v. State, 180 Ark. 397, 21 S.W.2d 606, I do not perceive any material difference in the rules of evidence applied there and those we should apply where a search warrant is involved. Objection to parol testimony in regard to the issuance and execution of a warrant of arrest, which was material to a charge of escape, was held admissible when loss of the writings had been shown.

It is difficult for me to perceive how it can be said that the evidence was insufficient to support a finding that the original search warrant had been lost and that its existence, nature and content had not been satisfactorily shown by parol evidence.

I would affirm the judgment.

I am authorized to state that the Chief Justice joins in this dissent.


author: John A. Fogleman, Justice.

text:
    MARYLAND CASUALTY COMPANY v. L. C. ROWE and Myra ROWE
    73-241
    506 S.W. 2d 569
    Opinion delivered March 18, 1974

      Jones, Gilbreath & Jones, for appellant.

      Booth & Wade, for appellees.
   John A. Fogleman, Justice.

Appellant contends the circuit court erred in denying it, as a workman’s compensation insurance carrier, a lien on the proceeds of a settlement paid to appellees by James D. Mickle in settlement of an action brought by appellees against Mickle, alleging that the death of their minor son, Danny Alan Rowe, resulted from negligence of Mickle and a codefendant. We agree with the circuit judge that appellant was not entitled to a lien under the particular circumstances prevailing in this case.

Appellant Maryland Casualty Company paid $2,132.60 for medical, hospital and funeral expenses of Danny Alan Rowe, whose death resulted from injuries received while working as a laborer employed by Donald Ray Rowe in the performance of a subcontract with Druyvesteyn Construction Company, the prime contractor, on a sewer line job on which Mickle was the engineer. Since Donald Ray Rowe had no workman’s compensation insurance, appellant became liable on the resulting claim as the carrier for the prime contractor. See Rowe v. Druyvesteyn Construction Company, 253 Ark. 67, 484 S.W.2d 512. As such, appellant was required by the Workmen’s Compensation Commission, not only to pay funeral expenses, but to pay $500 into the second injury fund. See Rowe v. Druyvesteyn Construction Company, 253 Ark. 63, 484 S.W.2d 513.

Appellees, as parents, filed suit against Mickle and his codefendant to recover their loss of the minor’s earnings and contributions, for mental anguish and for medical, hospital and funeral expenses. Appellant intervened, claiming a lien under Ark. Stat. Ann. § 81-1340(b) (Repl. 1960). When this case came to trial, and after a jury had been empaneled, but prior to opening statements, a hearing in chambers was held at the request of appellant’s attorney. This attorney advised the circuit judge he had just been informed that a settlement had been entered into between the parents of young Rowe and Mickle. The agreement was introduced. According to its terms. Mickle agreed to pay $10,300 in full settlement of all rights and causes of action L. C. and Myra Rowe might have against Mickle as a result of the death of their son. The Rowes agreed to indemnify Mickle against any liability to Maryland Casualty Company for subrogation rights on payments made on account of the death of Danny Rowe. The stated purpose of the settlement was to reduce the maximum exposure of Mickle to $10,300 while allowing the Rowes to continue the lawsuit with the same parties, including Westark U-Rents, Inc., Mickle’s codefendant.

Appellant objected to the settlement, and asked that it be allowed recovery of its claim for subrogation out of the proceeds of the settlement. The circuit judge overruled the objections, stating he had previously held that the parents of young Rowe were not entitled to any recovery for medical or funeral expenses and that their cause of action was only for mental anguish and possible contributions by the minor to his parents. At the same time, the judge specifically recognized that appellant had a right to pursue its cause of action in the pending suit. When appellant’s attorney inquired whether the court was approving the settlement under Ark. Stat. Ann. § 81-1340(c) (Repl. 1960), the judge stated his belief that there was no requirement that the court approve a settlement of the parents’ cause of action for their own mental anguish and possible loss of contributions. The judge then held that appellant would not waive its right to claim a lien by reason of being compelled by the court to proceed with the trial in an effort to recover medical and funeral expenses.

Appellees then moved for a non-suit against Mickle. The court dismissed Mickle from the suit, in spite of appellant’s refusal to non-suit its claim because of its contention that it was entitled to pursue the claim against him in that action. Appellant does not contend, on this appeal, that the judgment should be reversed on this account. It states that the issue for determination here is whether appellees, who had filed a suit in which they had sought recovery for medical and funeral expenses, may settle with a third party tortfeasor after the carrier had intervened and, by labeling the settlement proceeds as recovery for mental anguish and loss of contributions, defeat the carrier’s lien. It only asks that this court direct that the portion of the proceeds of the settlement ($2,-632.60) ordered held in the registry of the circuit court pending this appeal be paid to it.

After judgment was entered, appellant filed its “Petition for Reconsideration,” by which it again asked judgment fixing a lien on the settlement proceeds for the $2,632.60 in medical and funeral expenses paid by it. This petition was denied and the settlement agreement between the Rowes and Mickle was approved by the circuit court. As its sole point for reversal appellant states: “The Circuit Court of Crawford County erred in denying the appellant’s statutory workmen’s compensation lien.”

Appellant relies upon Ark. Stat. Ann. § 81-1340 (Repl. 1960). It must be noted, however, that this statute, covering the subject of third-party liability, recognizes the right of an employee, or his dependents, to recover from a third party subject to a lien of the employer or carrier. It also recognizes the right of the carrier or employer to sue the third party subject to the right of a compensation beneficiary to share in any recovery.

The action brought in this case does not come within the ambit of this statute. It, of course, was not brought by the deceased employee. Neither was it brought by his personal representative, as it must have been had there been one. Ark. Stat. Ann. § 27-907 (Repl. 1962); Dukes v. Dukes, 233 Ark. 850, 349 S.W,2d 339. In the absence of a personal representative, the parents as his heirs at law had a right to bring their own action under Ark. Stat. Ann. §§ 27-906, 907 (Repl. 1962). Ark. Stat. Ann. § 61-149(c) (Repl. 1971). They clearly had a cause of action for mental anguish as their son’s next of kin. Ark. Stat. Ann. § 27-909 (Repl. 1962). They also had the right to recover for loss of probable future contributions. St. Louis, I. M. & S. Ry. Co. v. Jacks, 105 Ark. 347, 151 S.W. 706. See also, Memphis D. & G. Ry. Co. v. Buckley, 99 Ark. 422, 138 S.W. 965. They were not entitled to recover medical or funeral expenses unless those expenses were paid by them. Little Rock & Ft. Smith Ry. Co. v. Barker, 33 Ark. 350; Morel v. Lee, 182 Ark. 985, 33 S.W. 2d 1110. They were obviously not dependents of their deceased minor son and were not workman’s compensation beneficiaries. See Rowe v. Druyvesteyn Construction Company, 253 Ark. 67, 484 S.W. 2d 512. Under the Workmen’s Compensation Act, the parents must have been either wholly or partially dependent upon the minor in order to be compensation beneficiaries at the time of the injury. Ark. Stat. Ann. §§ 81-1302(i), 81-1315 (Repl. 1960); Kimpel v. Garland Anthony Lbr. Co., 216 Ark. 788, 227 S.W.2d 932; Sherwin-Williams Co. v. Yeager, 219 Ark. 20, 239 S.W.2d 1019; Rowe v. Druyvesteyn Construction Company, 253 Ark. 67, 484 S.W.2d 512. Consequently, the suit of appellees was not as dependents, to which § 81-1340(a) would apply, nor were they compensation beneficiaries within the purview of § 81-1340(b). It is quite clear that they did not pay their son’s medical and funeral expenses and the trial court correctly held that they were entitled to no recovery on that score.

We readily agree with appellant that appellees could not split their cause of action, either by failing to sue for an element of damage they were entitled to recover or by making a settlement excluding such an element, and thereby defeat an employer’s or carrier’s lien. This rule simply has no application here, because the settlement encompassed only those items for which the parents had a cause of action, and the parents, in this case, simply did not come into the category of persons on whose recovery appellant had a lien. Furthermore, we cannot see how the failure of the parents to apply for the appointment of an administrator has any bearing whatever on the matter. They probably had no interest to be served through an administration on the estate of the minor. There was nothing whatever to have prevented appellant from instituting suit under § 81-1340(b). As previously mentioned, appellant does not seek reversal because of the court’s dismissal of Mickle from the suit.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    E. E. TERRY, Inc. v. CITIES of HELENA and WEST HELENA, Arkansas, Acting Through Helena-West Helena Airport Commission
    73-239
    506 S.W. 2d 573
    Opinion delivered March 18, 1974
    IT. G. Dinning Jr., for appellant.

      David Solomon, for appellee.
   J. Fred Jones, Justice.

The Cities of Helena and West Helena, acting through their Airport Commission, leased their airport land and facilities to E. E. Terry, Inc., hereafter referred to as “Terry.” The cities sued Terry for back rent and Terry counterclaimed for damages. A jury was waived and the trial judge sitting as a jury rendered judgment in favor of the cities for $3,522.48 in back rent and dismissed Terry’s counterclaim. Terry has appealed to this court under assignments of error as follows:

“The lower court erred in overruling appellant’s motion to dismiss the complaint on the grounds that the new Helena-West Helena Airport Commission had no legal entity or authority to maintain the action under the lease.
The court as a trier of fact disregarded the undisputed testimony and dismissed appellant’s cross-complaint.
(A) Appellee had no right to reenter and take possession of leased property to the damage of the appellant.
(B) The appellee had no right to withhold the making of repairs customarily made by the appellee’s predecessor in office over a period of more than 20 years.”

The background for this litigation began in 1940 when the Cities of Helena and West Helena, by municipal ordinances, jointly created the Helena-West Helena Airport Commission with authority to acquire, develop, maintain and operate a public airport for the two cities. The ordinances provided that the Commission should consist of six members, including the mayor and two citizens of each of the municipalities. The commissioners under authority of these ordinances acquired a section of land and established airport facilities thereon. It appears that soon after the establishment of the airport, it was used by the federal government as a training facility for pilots during World War II and in connection with such use, several frame and metal buildings, including a mess hall, recreation building, and barracks buildings were erected in addition to the hangars for airplanes. It appears that after the war the government returned the property to the two cities and the facilities were used for a time as a training school under the authority and management of the Airport Commission as originally composed.

For a number of years prior to 1966 the entire section of land, including the airport with its building and facilities, was leased to Terry who operated the airport, used and sublet the buildings as well as the farmland outside the airport area. The final lease to Terry, and the only one involved in this case, was dated May 26, 1966, and was for a future two year term beginning on January 1, 1968, and ending on December 31, 1971. Under the terms of this lease Terry agreed to pay $15,000 per year in quarterly installments of $3,750 to be paid in advance on the first days of January, April, July and October of each year. As to the property included in the lease, it was described as follows:

“A) All buildings, barracks, hangars and storage facilities used in the operation of the Thompson-Robbins Field situated in Section 27, Township 1 South, Range 4 East, Phillips County, Arkansas, as per description and list attached hereto and designated as Schedule ‘A.’
B) Agricultural lands not presently used for airport facilities and being described as all the remaining lands situated in said Section 27, Township 1 South, Range 4 East, Phillips County, Arkansas.”

Schedule A, above referred to, specifically described several buildings as to size and use including a “Mess and Recreation Building 97’ x 133’ ” used as a “Woodwork Shop.”

The lease contained 13 separately numbered paragraphs, but the only ones pertinent to the case before us are paragraphs 9 and 11, which read as follows:

“9) It is mutually agreed that Lessee shall have the right to make original structural changes in the buildings located on the leased premises, so long as the same shall be beneficial to the structures, and shall not decrease the value thereof.
11) It is mutually agreed that should the improvements on said property or any of them be rendered unfit for occupancy for the purposes for which they are hereby let, by fire, windstorm, or other unavoidable casualty, the rental hereinabove stipulated to be paid by the Lessee, or such proportion thereof as may be in the circumstances just, shall be by said Lessor remitted and abated until such time as the same shall have been repaired and again put in condition for such occupancy by the Lessor.”

Under a supplement to the lease Terry was appointed “manager” and was charged with the responsibility of managing the airport facilities in regard to its operation for the members of the public who would have occasion to use the airport. The lease was completely silent as to repairs and maintenance of the buildings and improvements except as above set out.

On March 7, 1968, the two cities passed new ordinances reorganizing their airport commission under the authority of the ‘Airport Commission Act,” Act 53 of 1949, Ark. Stat. Ann. § 74-501 et seq. (Repl. 1957). The 1968 ordinances provided a five member commission and eliminated the mayors of the two cities from membership on the commission, as required under the Act, .§ 74-503. The new Commission took over the active management and operation of the airport facilities upon passage of the new ordinances and was so acting when the present litigation was instituted. No separate ordinances were passed by the two cities abolishing the Commission as constituted under the 1940 ordinances, but the 1968 ordinances repealed all ordinances in conflict with them.

Beginning with the installment due on January 1, 1969, Terry reduced the quarterly payments to S3,500 and upon termination of the lease, the cities, through the Airport Commission, filed suit for the remainder of the agreed rent in the amount of S3,000, together with interest and costs. On October 19, 1971, Terry filed answer admitting the execution of the lease agreement but denying that the court had jurisdiction because the Airport Commission lacked capacity to sue. As a counterclaim, Terry alleged that in October, 1968, the Commission entered on the leased premises and removed the mess and recreation building used as a woodwork shop; that from, and after, January 1, 1969, the Commission refused to make ordinary repairs to the buildings on the leased premises and because of such lack of repairs, the buildings deteriorated and became worthless, all to Terry’s damage in the amount of $7,200 for which Terry prayed judgment. Answer was filed to Terry’s counterclaim on November 3, 1971, and on May 3, 1972, Terry filed what was designated “Motion to Dismiss’’ alleging that the lease dated May 26, 1966, was one of a series of leases over a period of about 25 years; that the 1966 lease was entered into by the Commission created under the 1940 ordinances; that the 1940 ordinances were not repealed prior to the passage of the 1968 ordinances, and that the Commissioners selected under the 1968 ordinances had no legal authority to maintain suit in connection with the lease described in the complaint. The trial court overruled Terry's motion to dismiss and following trial on the merits, rendered judgment against Terry for past due rent, together with interest as already stated, and dismissed Terry’s counterclaim.

We now consider Terry’s assignments of error in the order they are designated. The objection that plaintiff did not have legal capacity to sue must be made in a manner provided in the statute. Gaither Coal Co. v. LeClerch, 182 Ark. 466, 31 S.W. 2d 750. Ark. Stat. Ann. § 27-1115 (Repl. 1962) provides that where it appears on the face of the complaint that a plaintiff has no legal capacity to sue, the defendant may demur to the complaint; but, where incapacity to sue does not appear on the face of the complaint, the objection may be taken by answer (§ 27-1119). Terry first raised the objection in the answer to the complaint and if the later motion to dismiss was to be treated as a demurrer, it was filed long after the answer and counterclaim was filed. We find no merit to Terry’s first assignment. Terry seems to recognize that this was a suit by the city through its agency, the Airport Commission. See I. C. Eddy, Inc. v. City of Arkadelphia, 303 F. 2d 473. The new Commission was at least a de facto commission insofar as Terry was concerned and Terry was in no position to question its existence or authority to sue as an agency of the cities under the ordinances creating it. In Pennington v. Oliver, 245 Ark. 251, 431 S.W. 2d 843, we cited the earlier case of Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279, where this court said:

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

The trial court did not err in overruling Terry’s motion to dismiss the complaint.

As to Terry’s second point, Mr. Loyall Barr testified that he had been serving as a member of the Airport Commission since his appointment in April, 1968. After testifying as to the amount of arrears in rent owed by Terry in the amount of $3,-000, he said that when he assumed his duties as commissioner, the airport facilities included the hangars and some temporary buildings formerly used by the old flying school and so far as he knows they were all habitable. He said the mess hall became unusable because of general deterioration and the Commission, under authority from the city council, authorized its removal because of its unsightly appearance and hazard to the property. He said that according to the minutes of Commission meeting for July 29, 1968, one of the commissioners was directed to get someone to tear the old mess hall building down at no cost; that Mr. Terry was present at that meeting and made no objections to the proposal and the building was actually torn down and removed within the next three months following that meeting. He said that when he first became a commissioner the building was occupied by Mid-South Wood Craft as a tenant of Terry, but he does not know how long the building remained occupied. He said that some repairs were made on the hangars, and that a few repairs were originally made on some of the other buildings but that the Commission decided that it was a waste of taxpayers’ money to repair them.

Mr. Buron Griffin testified that he was appointed chairman of the new Airport Commission in April, 1968, and has served in that capacity since then. He said that when he took office as a commissioner, the old prefabricated barracks buildings were all in a bad state of repairs. He said the mess hall in question had been occupied by Mid-South Wood Craft but it moved out of the building sometime prior to April, 1968, and when the decision was made to tear the building down, the roof had fallen in simply from deterioration, leaks, etc. He said there had previously been a fire in the boiler room and shed attached to the building. He said that when he took office in April, 1968, some of the buildings were being used for the storage of farm machinery and hay and some of them were propped up. He said Terry never did make any demand on him or the Commission to make repairs on the buildings, and made no objections to tearing the mess hall down and removing it from the premises after its roof had failed in. He said that all of the old buildings had been torn down during 1971 and 1972, and the old chapel building was the only one of the original buildings, besides the hangars, that was left. He said the old chapel building had been repaired by the OES at no expense to the Commission or Terry; that OES paid rent to Terry on that building in the amount of $75 per month. He said that so far as he knows the Commission never did make any repairs on the old barracks buildings but did make repairs on the hangars. He said that when he assumed his place on the Commission, a boiler house was originally attached to the mess hall building but that it had completely burned down before he assumed his duties on the Commission. He said the boiler room fire had nothing to do with the roof caving in on the mess hall. He said that when the mess hall building was removed, one-fourth of its entire roof near the middle of the building had fallen in and the building was vacant when this occurred. He said it would have been economically unfeasible to attempt to repair the mess hall building.

Mr. E. E. Terry testified that he has operated E. E. Terry, Inc. since 1945 and was previously engaged in air student training, airplane sales and service, agriculture and flying. He said at one time he operated 200 planes all over the United States but that he only owns three now which he uses for pleasure. He said that between 1968 and 1971 he operated 75 or 80 planes out of the West Helena Airport. He said that he had been leasing the airport facilities since 1945 and that some of the barracks buildings were converted to apartments which he rented. He said that his leases had run for five year periods until 1966 when he leased the premises for a period of four years, ai ! the 196 lease was to take effect on the expiration of the one he was then operating under. He said he had possession of the mess hall building during the entire term of his lease until it was torn down in 1968 or 1969, by the new Commission soon after its members took office. He said that the Commission members did not discuss with him their intention of tearing the building down. He said that they did discuss such plans and intentions at a meeting he attended but he “had no say-so as to what they were going to do.” He said he was “not asked.” Mr. Terry then testified as follows:

“Q. What was the rental value that you collected on this particular building for the last tenant?
A. $75 a month.
Q. And approximately when did he move out?
A. Sometime after this new Commission came on.
Q. And how long had it been vacant?
A. It had been vacant, I reckon, a couple months.
Q. Did you know anything about a fire in the boiler room?
A. It was not a boiler room. It was a sawdust room out from the main building where they blew their sawdust, and there was a pump in there. It was not connected with this building at all. The temporary building had been put up by the sawmill man to pump his sawdust in.
Q. Do you know anything about the roof falling in on this mess hall?
A. Not at that time, no, sir.
Q. After the man had moved out of this building, did you have it for rent?
A. It would have been up for rent, yes, sir.
Q. And for how much?
A. $75 a month.
Q. Mr. Terry, talking about the barracks, what were the conditions of the barracks during this period of this new lease?
A. Well, they got in such shape that I couldn’t rent them, finally. They were in fair shape at the beginning of the lease, but then they just deteriorated down to where they were no good.
Q,. Were people moving out?
A. Yes, sir.
Q. Were you able to rent them?
A. No, sir.
Q. Did you request from any member of the Commission, or anv Commission meeting, or anyone, for repairs ot some kind to make on these barracks buildings?
A. I did, but I was given the understanding that they were not going to make any repairs on the buildings. That was out of the question.”

Mr. Terry then testified as to his income from rents on the buildings. He said that because of the deterioration of the buildings a tenant would move out and another one would move in until finally he was unable to rent them at all. He said that he made no repairs on the buildings during the period of his last lease.

On cross-examination Mr. Terry admitted there was nothing in his lease indicating who should make repairs on the buildings and he then testified as follows:

“Q. ... At these meetings that you attended, did you ever express your opinion about anything?
A. Yes, sir.
Q. You weren’t just a vegetable sitting there listening to what these profound commissioners said, were you? You expressed yourself, did you not?
A. Sometimes I did, yes, sir.
Q. Did you express yourself about these buildings?
A. I asked to have them repaired.
Q. And that’s all you did?
A. Yes, sir.
Q. And did you discuss whether it was economically feasible to repair them?
A. No, I don't know as I went into that detail about it or not.
Q. Now, these buildings had been there since 1941, or thereabouts, had they not?
A. That’s right.
Q. And they were temporary buildings at that time, were they not?
A. I suppose you would call them temporary.
Q. Now, these buildings were just a small part of what we rented to you, that is the wooden buildings, is that right, under the lease?
A. What do you mean?
Q. Well, you got 500-odd acres of agricultural land you were renting?
A. Yes, sir.”

Mr. Terry then testified that he ceased operating the airport facilities in 1970 because in July, 1970, he subleased the airport facilities to Alder-McCarty Flying Service who took over the operation and that he believes he was receiving from the sublessee the same amount ($14,000) he was paying on his lease.

It is clear from the testimony of the commissioners that the prefabricated buildings including the mess hall in this case were hastily placed on the property in the early 1940’s and had deteriorated to the point that some of them had been propped up and the roof had failed in on the mess hall building at the time it was torn down. According to all the testimony, meetings were held by the Commission for discussion and determination of what was to be done with the buildings and although Mr. Terry admits he was present at at least one such meeting, he said that his opinion was not asked for and he had no “say-so” and did not agree to the removal of the building and was not asked concerning its removal. According to Mr. Terry’s testimony, however, he did at several of these meetings insist that the buildings be repaired. Of course, a trial judge’s decision, when sitting as a trier of facts, has the same binding effect and verity as a jury verdict and on appeal to this court we are only concerned with whether or not there was any substantial evidence to support the judgment. Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S.W. 2d 188.

It is clear that the 1966 lease agreement in the case at bar made no mention of the lessor's duty to make repairs. It is well settled in Arkansas that unless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of statute, be compelled to do so or be held liable for repairs. Delaney v. Jackson, 95 Ark. 131, 128 S.W. 859; Rundell v. Rogers, 144 Ark. 293, 222 S.W. 19. The evidence is clear that the damage to buildings was occasioned by deterioration over the years and there is no substantial evidence that they were damaged by fire, windstorm or other unavoidable casualty within the meaning of paragraph 11 of the lease, supra. We conclude that there was substantial evidence to sustain the judgment of the trial court and that the judgment must be affirmed.

The judgment is affirmed.


text:
    L. C. WILLIAMS d/b/a WESTSIDE MOTORS v. George CURTIS
    73-242
    506 S.W. 2d 563
    Opinion delivered March 18, 1974

      Davis, Plegge & Lowe, for appellant.

      Dodds, Kidd, Hendricks & Ryan, for appellee.
   J. Fred Jones, Justice.

On October 4, 1971, the appellee George Curtis was struck by an automobile and injured as he was crossing a street in North Little Rock. The automobile belonged to L. C. Williams, d/b/a Westside Motors, and was being driven at the time by Gerald Hall, a full-time employee of Dalton L. Sims, d/b/a Sims Upholstering. Curtis filed a damage suit for personal injuries against Williams, Hall and Sims and obtained a joint and several judgment against all three on a jury verdict for $10,000.

At the close of the plaintiff’s case, Williams moved for a directed verdict as to him and the motion was denied by the trial court. Williams renewed his motion after he also testified as a witness called by the plaintiff-appellee. He did not renew his motion for a directed verdict at the close of all the testimony but he did move for judgment notwithstanding the verdict. The motions were denied by the trial court and judgment was entered as already stated. On appeal to this court Williams states the points he relies on as follows:

“1. The trial court erred in failing to direct a verdict for the appellant at the conclusion of the plaintiff’s testimony.
2. The trial court abused its discretion when it allowed appellee to present further testimony from appellant purporting to establish agency between Sims’ driver and appellant.
3. The trial court erred in failing to direct a judgment notwithstanding the verdict.
4. The trial court erred in failing to admonish the jury to disregard the improper references to insurance when the court specifically advised appellant’s counsel that he would do so when denying a motion for mistrial.”

On the date here involved, the appellant Williams operated a used car lot where he was engaged in the business of selling used automobiles. Sims operated an upholstery shop some distance from Williams’ car lot where he was engaged in the business of installing and repairing automobile upholstery. Hall was employed full time by Sims and was assigned the duty of picking up automobiles from Sims' customers and returning them to the customers after Sims had finished with the upholstery work involved. Williams was one of Sims’ customers and on October 4, 1971, Sims had done some upholstery work on an automobile belonging to Williams and while Hall was in the process of driving the automobile back to Williams’ car lot, the automobile struck and injured the appellee Curtis.

Johnny Foster, a police officer who investigated the accident, was First called as a witness by the plaintiff-appellee Curtis. He testified as to his investigation of the accident but his testimony contributed nothing to the points here involved. Mr. Curtis next testified in his own behalf but he only gave his version of how the accident occurred and described his injuries. Mr. Roy Spann was next called as a witness by the appellee-plaintiff. He said he was driving his automobile immediately behind the automobile that struck Mr. Curtis and that he saw the automobile strike Curtis. He then testified as to his version of what occurred. The deposition of Dr. Thomas Rooney was next read into evidence, having to do only with the nature and extent of Mr. Curtis’ injuries.

The defendant Hall was then called as a witness by the plaintiff-appellee Curtis. He testified that he was employed by Sims Upholstering in the capacity of delivering cars. He said that on the day in question he was driving an automobile owned by Westside Motors and was on his way to deliver the automobile back to Westside Motors when the automobile struck Mr. Curtis. He testified that he had previously picked up automobiles and returned them to Mr. Williams’ car lot. He said Mr. Williams would merely point out the automobile to be worked on by Sims and he would drive it to Sims’ shop and then return it. He said Mr. Williams did not give him any directions at all regarding the speed or routes over which he was to drive the automobile. He said that if Mr. Williams had given him such directions, he would have attempted to carry them out because he knew the automobiles belonged to Williams.

On cross-examination Mr. Hall testified that he had been working for Sims Upholstery for about four or five months and restated that on previous occasions he had picked up and delivered automobiles to Westside Motors for Mr. Sims. He said that Mr. Williams had never given him any instructions in regard to driving the automobiles. He said that he would have to see Mr. Williams to find out which automobile he was to pick up and deliver to Sims Upholstery. He said that on some occasions Sims Upholstery would have one of Williams’ automobiles working on it and that when he would deliver that automobile back to Williams, he would pick up another one. He said he was on his way returning the automobile from Sims Upholstery shop to Williams’ used car lot when the accident occurred, and that one of the other upholstery shop employees was to have picked him up at Williams’ lot and returned him to his place of employment after the automobile was delivered to Williams’ lot. He said that after he was involved in the accident with Mr. Williams’ automobile, he did not report the accident to Mr. Williams because he did not see him. He said he had never reported the accident to Mr. Williams and up until the date of trial, he had never had occasion to discuss the accident with him. He testified on cross-examination that he was driving west on Washington Avenue and had stopped at an intersection traffic light. He said when the light changed, he started forward and Mr. Curtis jumped out in front of him and he could not avoid striking him. The remainder of Mr. Hall’s testimony had to do with the occurrences at the scene of the accident and the manner in which it happened.

At the conclusion of Mr. Hall’s testimony, Mr. Curtis rested his case, whereupon the trial judge and the attorneys retired to chambers where, out of the presence of the jury, Williams presented his motion for a directed verdict and the motion was denied as set out in the record as follows:

“MR. CEARLEY: Defendant L. C. Williams, d/b/a West Side Motors moves for a directed verdict as to him on the ground that no genuine issue of fdct has been presented which would establish that Gerald Hall was an agent, servant or employee of L. C. Williams, d/b/a West Side Motors at the time the accident occurred.
THE COURT: For the present time I will deny the motion with some degree of uncertainty and reluctance. Bob has been assured that if the question does not become moot he has the right to file any type motion that he desires to file and it will be given very serious consideration. Now, in the light of my observations and ruling, counsel for plaintiff requested the right to offer additional proof even though prior to the hearing in Chambers counsel for plaintiff had indicated that plaintiff’s case was closed.
MR. CEARLEY: To this action all counsel for the defendants specifically object. Counsel for defendant L. C. Williams, d/b/a West Side Motors further objects to the Court overruling its motion for directed verdict on the ground that the only testimony before the Court as to the issue of agency is not properly admissible for that purpose.”

The attorney for the plaintiff-appellee Mr. Curtis then submitted medical bills and period of life expectancy previously agreed to by stipulation and then stated: “At this time we call Mr. Williams to the stand.”

Under direct examination by Mr. Curtis’ counsel, the appellant Williams testified that he together with his wife were owners of Westside Motors. He testified that from time to time he had the upholstery in his automobile^ repaired by Sims Upholstery shop and that Sims came, or sent an employee, to his lot to pick up the automobiles. He said that his agreement with Sims was that Sims was to come and get the cars. He said the automobiles in which he had the upholstery repaired by Sims were used automobiles he kept on his lot for resale, and that his purpose in having the upholstery replaced or repaired was to put the automobiles in better salable condition. He said he had been using Sims Upholstery service for approximately 18 months and had been doing business with Sims for some time. He said he had seen Mr. Hall previously but did not know him personally. He said he assumed that Hall was employed by Sims Upholstery because he had come to his lot with Sims when he came for an automobile. He said that he was aware that Hall was driving one of his automobiles when the accident occurred, and that he assumed he was an employee of Sims. He said that he did not feel he had the right to give instructions to Mr. Sims’ employee. He said that he felt that he would have a right to instruct Mr. Sims what he wanted done with his automobiles, and that if he knew his automobiles were being driven in a manner that was not satisfactory to him, he felt he would have a right to change the people that were doing work on his automobiles.

Mr. Williams was examined at some length as to what rights he felt he would have in directing Mr. Hall in the operation of an automobile he was delivering to or from the Sims Upholstery shop, and the substance of his answers was that he assumed that a man he was doing business with, such as Mr. Sims,would handle a customer’s automobile with care and in a satisfactory manner and that if he felt otherwise, he would take his business elsewhere. He said he did not feel he had the right to give another man’s employee orders on how to do something.

Following Mr. Williams’ testimony, the plaintiff-appellee again rested, whereupon outside the hearing of the jury Williams renewed his motion for a directed verdict appearing in the record as follows:

“MR. CEARLEY: The defendant Williams, d/b/a West Side Motors moves again for a directed verdict as to him on the ground that no geniune issue has been presented as to an agency relationship existing between defendant Williams and defendant Hall and that the only testimony in support of the existence of any such relationship was not properly admissible for that purpose.”

Mr. Sims was next called by his own attorney and testified that he is the owner of the Sims Upholstery shop and had been doing upholstery work for Westside Motors for approximately 18 months. He said that as a courtesy to his customers, and as a business policy, it was his custom to pick up the automobiles he was doing work on and to return them to the owner. He said that when he finishes an upholstery job on an automobile, he delivers the automobile to the owner if it is not picked up by the owner.

On cross-examination by the appellee Curtis’ attorney Mr. Sims testified that when Mr. Williams would'call him to do upholstery work on an automobile, he would go to Williams’ car lot and pick up the automobile and then would return it after he had completed work on it. He said that his employee Mr. Hall picked up automobiles and delivered them back to Mr. Williams’ lot and he considered that Mr. Hall was to do whatever Mr. Williams told him to do with the automobile.

Under cross-examination by Mr. Williams’ attorney, Mr. Sims said that sometimes when Mr. Williams would call him about an upholstery job on an automobile, he would go look at the automobile before he would send a driver for it. He said on many occasions he never did go to the Williams automobile lot at all. He said that on some occasions when he had completed the work on one of Williams’ automobiles, he would send it back to Williams’ lot and pick up another one to work on. He said on other occasions he would have another employee follow the driver of the Williams car in order to bring the driver back after the repaired automobile was delivered. He said that if Mr. Williams had directed him to operate an automobile in a certain manner, he supposes he would have complied and would have instructed his employees to do so. He said that when the accident happened in this case, Hall was on his payroll and had been for two or three months. He said that Hall should have known how to drive an automobile according to law, and that he was doing so when the accident occurred. He said he recognized that the automobile Hall was driving belonged to Mr. Williams and in one sense Mr. Williams would have had more right that he had to give instructions on how to handle the automobile, because the automobile belonged to Williams.

Mr. Sims was again cross-examined by the plaintiff-appellee’s attorney, after which the plaintiff-appellee again rested and so did Sims and Hall. At this point in the proceedings the attorney for Williams stated: “We have no testimony, Your Honor.”

Officer Foster was again called by the attorney for Mr. Curtis and was examined and cross-examined by the attorneys for Curtis, Hall and Sims pertaining to matters not pertinent to this opinion. Mr. Spann was also re-examined by the attorney for Mr. Curtis and cross-examined by the attorney for Sims and Hall, and on cross-examination he mentioned that Sims had requested him not to testify because he had no insurance. Whereupon the attorney for Williams objected to the issue of insurance being brought into the matter and moved for a mistrial. The motion for mistrial was overruled and Williams’ attorney then asked that the jury be admonished to strike any remarks pertaining to insurance and the trial court did so.

Following the jury verdict, as above set out, Williams filed a motion for judgment non obstante veredicto as follows:

“Comes the defendant, L. C. Williams d/b/a West Side Motors, having previously moved the court to direct a verdict in his favor at the close of the testimony at the trial hereof, which motion was denied, and thereafter the jury having returned a verdict in favor of the plaintiff against the defendant, L. C. Williams d/b/a West Side Motors, among others, and moves the court to enter judgment in his favor notwithstanding the verdict on the ground that the defendant’s motion for directed verdict should have been granted as there is no substantial evidence creating a question of fact for the jury regarding defendant L. C. Williams d/b/a West Side Motors.
In the event this defendant’s motion for judgment Mon Obstante Veredicto is denied, defendant hereby reserves the right to move for a new trial.”

In the case of Smith v. McEachin, 186 Ark. 1132, 57 S.W. 2d 1043, we stated the rule pertaining to directing verdicts in language as follows:

“It is a rule of universal application that, where the testimony is undisputed and from it all reasonable minds must draw the same conclusion of fact, it is the duty of the court to declare as a matter of law the conclusion to be reached; but, where there is any substantial evidence to support the verdict, the question must be submitted to the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.”

See also Members Mutual Ins. Co. v. Blissett, 254 Ark. 211, 492 S.W. 2d 429.

The primary question in the case at bar is whether the issue of agency should have been submitted to the jury as a question of fact or decided by the court as a matter of law. The same question was presented in the case of Campbell v. Bastian, 236 Ark. 205, 365 S.W. 2d 249, and in that case we said:

“. . . Campbell claims that the question of agency should have been submitted to the jury rather than declared as a matin oj law. It is true that, ordinarily, agency is a question of fact to be determined by thejury; but agency becomes a question of law for the court when the material facts concerning it are not disputed and only one reasonable conclusion can be drawn therefrom. 3 C.J.S. p. 325, ‘Agency’ § 330. As the Court of Appeals of Kentucky said in Wolford v. Scott, 257 S.W. 2d 594:
‘Where the facts are in dispute and the evidence is contradictory or conflicting the question of agency, like other questions of fact, is to be determined by a jury. However, where the facts are undisputed, the question becomes one of law for the court. Horne v. Hall (Ky.), 246 S.W. 2d 441.’”

It is clear from the evidence in. the record before us, that Hall was at all times an employee and agent of Sims and was at no time, pertinent to this case, an employee, servant or agent of Williams. The facts as made clear from the evidence in the record, place this case squarely within the purview of Home Ins. Co. v. Williams, 254 Ark. 396, 494 S.W. 2d 110. Our decision in Williams, and in the other cases therein cited, is controlling here. In Williams an automobile owner had left her automobile with her garageman with instructions to mount some new tires and to deliver the automobile to her place of employment. A garage employee was returning the automobile to the owner when the plaintiff was struck and injured. In affirming a directed verdict in favor of the owner, we quoted with approval from 35 ALR 2d 804 as follows:

‘“In the great majority of cases involving negligent operation of a car by service personnel in connection with the work for which it has been placed in their custody, the courts have held that the owner is not liable.
This result is generally reached on the theory that the service establishment becomes the bailee of the car as an independent contractor, since the owner is concerned only with the results of the work and not with the detailed manner in which it is carried out.”1

It is rather difficult to determine from the record in the case at bar whether Williams renewed his motion for a directed verdict at the close of all the evidence, because it is difficult to determine when all the evidence closed. It is true that in Granite Mt. Rest Home v. Schwartz, Adm'r, 236 Ark. 46, 364 S.W. 2d 306, we said:

“Amotion for directed verdict was made by appellant at the conclusion of plaintiff’s (appellee’s) testimony, and was denied by the court. Whether this action by the trial court was correct is of no moment, for upon the motion being overruled, appellant proceeded to offer its evidence. We have held that when one proceeds, after the denial of such a motion, to introduce proof, he waives the error of the court in failing to grant same. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S.W. 135, Ft. Smith Cotton Oil Co. v. Swift and Co., 197 Ark. 594, 124 S.W. 2d 1. * * * As stated in Wigmore on Evidence, Volume 9, Third Edition, one ‘cannot take advantage of the judge’s original erroneous refusal to direct a verdict for insufficiency at the time of the first motion if he does not renew the motion at the close of all the evidence.’ The reasoning employed, is, of course, apparent, for if one has waived his original motion, and does not renew same, there is nothing to be passed upon by the court at the conclusion of the evidence. No error could have been committed by the court at this point — for nothing was presented.”

In the case at bar the only evidence offered by Williams after his motion for a directed verdict was denied, consisted of Williams’ own testimony when he was called as a witness by the plaintiff-appellee. We see no point in belaboring the ques.tion of whether Williams renewed his motion for a directed verdict at the close of all the evidence, for we are of the opinion that the trial court should have granted Williams’ motion for a judgment n.o.v. and the same rules apply.

In the case of Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 485 S.W. 2d 192, we set out the test for granting a motion for judgment n.o.v. and in that case we said:

“The statutory authority for judgment notwithstanding a verdict is found in Ark. Stat. Ann. § 29-211 (Repl. 1962) which is as follows:
‘Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict had been found against such party.’
It is now well settled in Arkansas that the test for granting a motion for judgment n.o.v. is the same as the test for granting a motion for a directed verdict, and that a trial court may enter a judgment n.o.v. the same as he may grant a motion for direct verdict, if there is no substantial evidence to support the verdict. Baucom v. City of North Little Rock, 249 Ark. 848, 462 S.W. 2d 229; Edwards v. Epperson, 246 Ark. 194, 437 S.W. 2d 480.”

Since we agree with the appellant that there was no substantial evidence to support the verdict of the jury, and that the trial court should have granted Williams’ motion for a judgment notwithstanding the verdict of the jury, we shall not discuss the other points designated by Williams.

The judgment is reversed and dismissed.

Byrd, J., disqualified.


text:
    Charles Edward DOLPHUS v. STATE of Arkansas
    CR 73-163
    506 S.W. 2d 538
    Opinion delivered March 18, 1974

      Harold L. Hall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant was convicted by the trial judge sitting as a jury on two counts of forgery and two counts of uttering and was sentenced, as a habitual criminal, to imprisonment for 15 years on each count with the sentences to run concurrently. The trial court ordered one-third of the sentence to be served before the appellant would be eligible for parole. On appeal to this court appellant contends that the trial court erred in permitting the state to amend the information to conform to the proof.

The information in count one charged appellant with the crime of forgery on or about the 28th day of August, 1972, and count four charged the appellant with the crime of uttering a forged check on or about the 21st day of August, 1972. The state's proof, however, showed that the correct dates should have been the 25th day of August, 1972, for both counts. Over appellant’s objections, the trial court permitted the information to be amended to conform to the proof. As authority for his contention that the proof must correspond with the allegations of the indictment, and that the indictment cannot be amended to correspond with the proof, appellant cites Henderson v. State, 91 Ark. 224, 120 S.W. 966.

We cannot agree with this contention. It is true that prior to Initiated Act No. 3 of 1936 (Acts 1937 p. 1384) we had held that an indictment could not be amended to correspond with the proof. State v. Springer, 43 Ark. 91; Henderson v. State, supra. As was pointed out in Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304, Initiated Act No. 3 was adopted for the purpose of simplifying criminal procedure and to eliminate some of the technical defenses used by criminals to escape punishment for their crimes. Section 24 of said Act, now Ark. Stat. Ann. § 43-1024 (Repl. 1964), provides for amendments to indictments and reads as follows:

“The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record.”

Under the provision of this section this court has held that the prosecution is entitled to amend the information where such amendment would not change the nature of the crime or its degree. Underwood v. State, supra; see also Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108.

The amendment to the information in the case before us did not change the nature of the crime or its degree and, therefore, we conclude, that the trial court did not err in permitting the amendment.

Judgment affirmed.


author: Conley Byrd, Justice.

text:
    ARKANSAS LOUISIANA GAS COMPANY and Mickey GARRETT v. Carlous H. MORGAN and Geraldine G. Morgan
    73-244
    506 S.W. 2d 560
    Opinion delivered March 18, 1974

      Bridges, Young, Matthews & Davis, for appellants.

      Elrod and Beshear; Brown, Compton & Prewelt, by: Robert C. Compton, for appellees.
   Conley Byrd, Justice.

This litigation arises out of a rear-end automobile collision. The jury verdict, signed by nine jurors, awarded damages to appellee Carious H. Morgan in the amount of $50,000 and in favor of appellee Geraldine G. Morgan in the amount of $5,000 for loss of consortium. For reversal appellants, Arkansas Louisiana Gas Company and Mickey Garrett contend:

“I. The court should have granted a mistrial because one of the nine jurors could not read and write, and
II. The verdict of the jury is excessive.”

POINT I. The record shows that Archie Lee McGehee, one of the nine jurors who signed the verdict, signed with an “X”. Appellants then questioned Mr. McGehee and found he could not read and write. Appellants’ counsel then ascertained that the trial court in another previous trial had determined that the juror could not read and write. Other questions showed that Mr. McGehee was a qualified voter and that he held a regular job with the Arkansas State Highway Commission. In overruling the appellants’ motion for a mistrial, the trial court found that Mr. McGehee was a good juror and stated that he would be used on the next case unless one of the parties struck him.

Appellants admit that they did not voir dire Mr. McGehee on the subject of his ability to read and write, but argue that the trial court should have given the attorneys the benefit of the knowledge he had from the prior selection of juries by informing them that one member of the jury panel was incapable of making mathematical calculations. We find no merit in appellant’s position for two reasons — i.e., (1) the showing that the juror could not read and write does not necessarily mean that the juror could not do mathematical calculations, and (2) the matter is controlled by Ark. Stat. Ann. §§ 39-102(d) and 39-106 (Supp. 1973).

Ark. Stat. Ann. § 39402(d) provides:

“The following are disqualified to act as grand or petit jurors: . . . (d) Persons who are unable to read or write the English language, except that the Circuit Judge may, in the exercise of his discretion, waive these requirements when said persons are otherwise found to be capable of performing the duties of jurors.”

Ark. Stat. Ann. § 39-106 provides:

“No verdict or indictment shall be void or voidable because any juror shall fail to possess any of the qualifications required in this Act [ § § 39-101 — 39-108, 39-201 — 39-220] unless a juror shall knowingly answer falsely any question on voir dire relating to his qualifications propounded by the court or counsel in any cause. A juror who shall knowingly fail to respond audibly or otherwise as is required by the circumstances to make his position known to the court or counsel in response to any question propounded by the court or counsel, the answer to which would reveal a disqualification on the part of such juror, shall be deemed to have answered falsely.”

Since the law permits a trial judge to waive the disqualification arising from the inability to read and write, we fail to see why counsel should be entitled to rely upon the trial court to disqualify such persons from the jury panel.

POINT II. The record shows that Carious H. Morgan was 51 years of age at the time of the collision in.December of 1971. He was a trained welder and automobile mechanic who at the time of the collision had been employed on an insurance debit for Life & Casualty Insurance Company of Nashville, Tennessee, for 11 1 /2 years. His income in that occupation came both from collections and sales. His income dropped from some $10;800 in 1971 to approximately $8,800 in 1972. As a result of the injuries received his wife quit her employment and at the time of trial was doing the driving for him. According to the wife’s testimony her income was supplemental to her husband’s to begin with so she quit her job to help out with his earnings.

Following the collision Mr. Morgan went to Dr. Don E. Howard’s office. Dr. Howard caused some X-rays to be made and told him to return in three or four days. When Mr. Morgan returned, Dr. Howard referred him to Dr. Shuffield in Little Rock.

Dr. Elvin Shuffield testified that he examined the X-rays and found that Mr. Morgan had a rather marked degeneration and narrowing of the interspaces between the fifth cervical and sixth cervical vertebra and also between the seventh cervical and first thoracic vertebra. The lower half of Mr. Morgan’s neck demonstrated that there was degeneration taking place. Dr. Shuffield was of the opinion that Mr. Morgan had had previous trouble in his neck and the recent injury had caused a hypertension strain on his cervical spine which had aggravated the previous existing condition. He also found evidence of nerve root pressure to the left ulnar nerve. Dr. Shuffield told Mr. Morgan that he would probably continue to have aches and pains, particularly if he worked in awkward positions. He also stated that weather changes would cause more aches and pains. Dr. Shuffield concluded that Mr. Morgan had some permanent partial disability which he placed at 10 per cent to the body as a whole. On redirect he stated that the nerve root pressure on the left ulnar nerve had reached its maximum improvement.

The testimony of Mr. and Mrs. Morgan shows that prior to the collision Mr. Morgan, in addition to his insurance debit, repaired the family automobiles, mowed the yard, kept up the fences on their 75 acre farm and did some hunting. After the accident he was unable to do any of those things. Prior to the collision Mr. Morgan often worked until 8:00 or 9:00 p.m. in making insurance collections and sales. After the collision he had a definite personality change and often came home at 1:00 to 2:00 p.m. to take medication for pain.

Mr. Morgan testified that he had not been free of pain since the collision. He described the pain as being about as bad as an earache. His left little finger is numb and he has very little feeling in part of his hand on up his left arm.

In arguing that the verdict is excessive appellants emphasize the facts that Mr. Morgan only had $325 of medical expenses and a $2,000 per year loss in earnings. They then show that the $50,000 verdict invested at 6 per cent would produce an income of $5,648.01 per year until Mr. Morgan reaches age 65. Such an argument, however, omits to give a monetary value to the repairs of the family automobiles and the farm fences — not to say anything about the compensation that would be due for the pain suffered.

Upon the whole record we cannot say that the $50,000 verdict for Mr. Morgan is excessive. The $5,000 verdict in favor of Mrs. Morgan is certainly not excessive in view of the many obligations that fell upon her shoulders as a result of the injuries.

Affirmed.


author: Frank Hoi.t. Justice.

text:
    CITY of FORT SMITH, Arkansas v. HOUSING AUTHORITY of the CITY of FORT SMITH, Arkansas
    73-222
    506 S.W. 2d 534
    Opinion delivered March 18, 1974

      Daily, West, Core & Coffman, for appellant.

      Hardin, Jesson & Dawson, for appellee.
    Amicus curiae for Arkansas Municipal League by: Glenn G. Timmerman and William G. Fleming.

    Amicus curiae for Ark. Chapter, National Association Housing & Redevelopment Officials by: Laser, Sharp, Haley, Young & Boswell, P.A., by: David B. Bogard.

   Frank Hoi.t. Justice.

By a declaratory judgment action, the appellant city sought to establish that it was empowered by Ark. Stat. Ann. § 19-1042 et. seq. (Supp. 1973), Act 266 of 1971, to adopt an ordinance to amend the procedure, Ark. Stat. Ann. § 19-3006 (Repl. 1968), Act 77 of 1943, for the filling of vacancies on the local Housing Authority Board of Commissioners as well as the right to increase the size of the Board. Further, appellant averred that the action of the Housing Authority in filling the vacancy after the adoption of the ordinance was void. The trial court held that the ordinance enacted by the city, pursuant to the provisions of § 19-1042 et. seq., known as the Home Rule Act, was void since it did not repeal § 19-3006. Appellant first contends for reversal that the “trial court incorrectly construed Act 266 of the 1971 Acts of Arkansas as not delegating the authority to the city to establish a procedure for filling vacancies on the Board of Commissioners of the Housing Authority.” We agree with the trial court although we first resolve the issue on a constitutional basis which was presented by the briefs and in oral argument. We do so, even though the issue was not raised at trial, because of the manifest public interest. Rainwater v. Haynes, 244 Ark. 1191, 428 S.W. 2d 254. Furthermore, we recently considered the constitutional issue in Nahlen v. Woods, 255 Ark. 974. 504 S.W. 2d 749 (1974). Our recognition of the impact of our decision in Nahlen is consistent with our approach to such a matter in Commissioner of Labor v. Danco Construction Co., 226 Ark. 797, 294 S.W. 2d 336 (1956).

§ 19-3006 provides that when a vacancy occurs on the Board of Commissioners of a municipal Housing Authority, the Commissioners shall designate a successor to fill the vacancy subject to confirmation by the municipal governing body. Further, upon the expiration of a Commissioner’s appointment, he shall hold office until his successor is selected bv the Board and approved by the city. Appellant, in the belief that it was acting within the enabling authority of the Home Rule Act, enacted an ordinance in which appellant’s governing body found that the affairs of the Housing Authority were so interrelated with the affairs of the appellant city as to require that vacancies on the Housing Authority Board should be filled in the same manner as are other municipal board and departmental vacancies. The ordinance, accordingly, provided that the vacancies would be filled by appointment by the City Administrator with the approval of the governing body. Despite the ordinance, the term of one of the Commissioners having expired, the Housing Authority Board reappointed the Commissioner to a new term in accordance with the procedure prescribed in § 19-3006. The appellant’s governing body would not approve the appointment and named another individual pursuant to the ordinance which it had enacted in accordance with its asserted authority to do so by the 1971 Home Rule Act. § 1 of that Act, codified as § 19-1042, provides:

Any city of the first class is hereby authorized to perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs including but not limited to the power to tax.

§ 7 (uncodified) of that Act is:

Any existing state statute which now limits or prohibits the exercise of a function or a legislative power of a city of the first class pertaining to its municipal affairs is hereby repealed upon the passage of an ordinance or a resolution by a city of the first class which provides for, regulates, controls or otherwise affects its municipal affairs now limited by that state statute. . . .

The appellant city does not dispute, and correctly so, that the original Housing Authority Act (298 of 1937), as amended, creating the various local Housing Authorities, is a general law. However, appellant relies on § 7, supra, of the Home Rule Act, as clearly expressing the intention of the legislature to repeal all statutes which pertain to municipal affairs whenever the city governing body activates the process by the enactment of an appropriate city ordinance. In other words, appellant says the 1971 Act, being a general law, repealed previous legislation by empowering cities of the first class with the authority, when they so desire, to legislate with reference to the appointment procedure of Housing Authority Board members. Consequently, when the city adopted its ordinance, it was not enacting any legislation contrary to the general law on the subject.

Admittedly, as indicated, the Housing Authority Act is a general law. Any delegation of authority to legislate upon that subject to appellant city is patently prohibited by Ark. Const., Art. 12, § 4, (1874), which provides, inter alia:

No municipal corporation shall be authorized to pass any law contrary to the general laws of the state. . . .

Most recently we had occasion to consider the subject of the legislature delegating its plenary powers to municipal authorities. In Nahlen v. Woods, supra, we held that our state is a legislative rather than a constitutional home rule state and, therefore, our legislature possesses plenary power over municipalities. There it was contended on appeal that a city governing body, pursuant to the Home Rule Act, could properly repeal by ordinance two 1971 acts of the general assembly. These acts provided for the imposition of court costs to support a county law library and a law library building. The ordinance attempted to divert the collection of these court costs into the municipal law library book fund which would be administered by a municipal law library board. In nullifying the city ordinance, we said:

In the first place, the legislature is prohibited by our constitution from delegating such authority of repeal. ‘No municipal corporation shall be authorized to pass any law contrary to the general laws of the State. . . . (citing Art. 12, § 4, supra, and cases)

Therefore, in the case at bar, it is constitutionally impermissible to interpret the Home Rule Act to confer upon a city the authority to repeal by an implementing ordinance a general law and substitute its own method of filling vacancies on the Housing Authority Board.

Further, even if the ordinance was not constitutionally defective, the Housing Authority is not a matter pertaining to “municipal affairs” within the Home Rule Act. The definition ol “municipal affairs,” for the purpose of the Act, is found in § 19-1043. It specifically excludes “ . . . matters coming within the police power of the state including minimum public health, pollution and safety standards.”

A Housing Authority is an agent of the state dealing with public health standards and falls squarely within the traditional police powers of the state. A city Housing Authority does not operate within the scope of “municipal affairs” (i.e., those affecting, germane to or concerning the municipality and its government) as distinguished from those state affairs excepted in the Home Rule Act. § 19-3002 sets forth the declaration of the necessity of the Housing Authority Act and clearly manifests a statewide rather than a municipal concern:

That there exists in the State insanitary or unsafe dwelling accommodations . . . that within the Slate there is a shortage of safe or sanitary dwelling accommodations . . that the aforesaid conditions cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the Slate and impair economic values. (Emphasis added.)

Although a Housing Authority is authorized in a municipality (as well as in a county or by combinations), the benefit of its existence obviously spreads past the city (or county). In Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W. 2d 49 (1940), we held the Housing Authority Act constitutionally valid. In doing so, we quoted with approval from Los Angeles v. Dockweiler, 14 Cal. 2d 437, 94 Pac. 2d 794 (1939), where that court found:

Both reason and authorities support us that the proposed elimination of slums and the erection of safe and sanitary low rent dwelling units for persons of the prescribed income will do much to advance the general welfare and to protect the public safety and morals and are in fact and in law public purposes.

Powers of the Authority are vested in its Commissioners. No Commissioner of a city Authority may be an officer or employee of the city. §§ 19-3005, 19-3007. A city Housing Authority constitutes a public body corporate and politic exercising essential governmental functions, having perpetual succession, the power to sue and be sued, to enter into contracts in exercise of its powers, to exercise the power of eminent domain, “to cooperate with the city, the county, the State or any political subdivision thereof in action taken” within the scope of its primary functions. It is in essence a separate Authority created to cooperate with the city or county as the case may be.

Even when the power of appointment of Housing Authority members is vested in city officials (here the city is given the veto power as to each appointment), it has been held that however intimate the connection between the city and the authority may be, the latter is created for the performance of a state function, separate and apart from the municipality in which it exists. Schlobohm v. Municipal Housing Authority, 188 Misc. 318, 62 N.Y. S. 2d 71 (1946).

For the foregoing reasons, we hold that a Housing Authority is not a municipal affair. Therefore, we must also consider the Fort Smith ordinance as being unauthorized by the Home Rule Act.

Affirmed.