text:
    Hill v. Surratt
    5-3725
    398 S. W. 2d 225
    Opinion delivered January 24, 1966

      U. A. Gentry, for appellant.

      Alonzo D. Camp, for appellee.
   Frank Holt, Justice.

The appellees brought this action to establish title by adverse possession to a tract of land consisting of 4.33 acres. The appellant, as owner of record, resisted their claim. The chancellor quieted title in appellees and on appeal appellant seeks reversal of the decree contending that it is against the preponderance of the evidence. We agree with the appellant.

In support of their claim the appellees presented a tax deed purchased from the state in 1954 and which included only the east half of the 4.33 acre tract. This instrument was issued in lieu of a redemption deed. A redemption deed confers no color of title.

In the case of Rouse v. Teeter, 214 Ark. 488, 216 S. W. 2d 869, the court said:

“The quit claim deed which appellant obtained in 1932 and did not record until 1943, conferred no color of title as it was a mere redemption. The case of Galloway v. Battaglia, 133 Ark. 441, 202 S. W. 836, and Inman v. Quirey, 128 Ark. 605, 194 S. W. 858, are to the effect that a tax purchase which was treated as a redemption did not operate as color of title under which title could be acquired. ’ ’

See, also, Rinke v. Weedman, 232 Ark. 900, 341 S. W. 2d 44.

Appellees, however, primarily contend that they have acquired title to the property in question by the payment of taxes and actual occupancy adverse to the appellant. The general taxes were paid continuously by the appellees beginning in 1958 to 1963 inclusive. Appellees paid the taxes for 1955 in 1956 and only the first installment of the 1956 taxes. “* * * the payment of taxes is only a circumstance to be considered along with other circumstances.” Wood v. McCoy, 228 Ark. 880, 311 S. W. 2d 755.

The quantum of proof necessary for a trespasser to establish title to a tract of land by adverse occupancy is greater where he has no color of title. It is well settled that where one is holding without color of title, as in the case at bar, the trespassing claimant must show pedal or actual possession to the extent of the claimed boundaries for the required seven years. Ark. Stat. Ann. § 37-101 et seq. (Repl. 1962); Culver v. Gillian, 160 Ark. 397, 254 S. W. 2d 681; Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236; Griffin v. Isgrig, 227 Ark. 931, 302 S. W. 2d 777. In Coons v. Lawler, 237 Ark. 350, 372 S. W. 2d 826, we said: “ * * * To prevail on a claim of adverse possession not under color of title (and Coons does not claim color of title), one must show actual or pedal possession to the extent of the claimed boundaries.”

We further review the evidence to determine whether appellees’ acts of possession were sufficient to meet this test of actual occupancy. The appellees are the heirs at law of Henry Surratt, Sr., who purchased the tax deed in 1954. Charles Gupton testified that his fater-in-law, Mr. Surratt, began using the land adversely in 1954 by raising gardens or truck patches thereon and that this use continued until he died in 1956; that Surratt never lived on it; that upon Surratt’s death he took over the use of the property and since then has raised vegetables on it; that the land is poor and only good for truck patches; that he built a hog pen approximately twelve feet square and raised three to six hogs on this land for about three years; that no repairs were made on any fences after 1956 resulting in the tract now being unenclosed; that the house on the property was destroyed by fire in 1947; that in 1961 he cleared the undergrowth and briars from a corner site of the property on which he later completed the construction of a house which he now occupies. Gupton’s wife, and others, corroborated her husband’s testimony. She admitted that only a part of the tract was cultivated and that her husband had worked “in the low place on the far side and he worked on the high place right below my house on back. ’ ’

Appellees contend that their intent to hold the lands in question adversely to appellant is sufficiently demonstrated by payment of taxes and using patches for truck gardening to which the land is best suited. We cannot agree that the facts in this case meet the requirements of our decisions. The seasonable cultivation of patches on these unenclosed and undefined lands, without color of title, is insufficient to constitute the continuous, pedal, and actual possession to the extent of the claimed boundaries for the seven years that the law requires of an adverse possessor. Nicklace v. Dickerson, 65 Ark. 422, 46 S. W. 945; Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82; Coslin v. The Crossett Co., 233 Ark. 13, 342 S. W. 2d 303; Teer v. Plant, 238 Ark. 92, 378 S. W. 2d 663.

The decree is reversed and the cause remanded to said chancery court for further proceedings consistent with this opinion.

Cobb, J., not participating.


source: Caselaw Access Project

author: Osro Cobb, Justice.

license: Public Domain

text:
    Knowles v. Vick Chemical Co.
    5-3753
    398 S. W. 2d 204
    Opinion delivered January 24, 1966

      Max M. Smith, Switzer & Griffin, for appellant.

      Brown, Compton & Prewett, for appellee.
   Osro Cobb, Justice.

Appellant filed a suit on the 16th day of February, 1965, against appellees alleging that between the dates of October 27, 1961 and March or April, 1962, she took a certain prescription drug (MER/29 triparanol) which caused her to suffer many adverse and damaging effects, and further alleging that she had taken said drug upon the express and implied warranties of appellees, the manufacturers and distributors of same, that said drug had been adequately tested and was fit for the purpose of which it was intended and fit for human use and consumption. The complaint sought damages for her injuries resulting from her alleged use of said drug.

Appellees responded to the complaint by filing a demurrer seeking dismissal of the action for lack of privity between the parties litigant. The demurrer admitted the truth of all well pleaded allegations of the complaint. Oliver & Oliver v. Western Clay Drainage Dist., 187 Ark. 539, 61 S. W. 2d 442.

The trial court sustained the demurrer and dismissed the complaint. The case is now before us on the pleadings presenting solely questions of law.

We quote from appellant’s able brief as follows:

“As this Court is well aware, Arkansas had followed the ‘strict privity’ rule since 1905 when Nelson v. Armour Packing Company, 76 Ark. 352, 90 S. W. 288 (1905), was decided, although there have been some Arkansas Supreme Court judges who have recognized the ‘unsoundness’ of the rule laid down in the Armour case. See Justice Hart’s dissent with Justice Humphreys concurring, Drury v. Armour & Co., 140 Ark. 371, at 379, 216 S. W. 40 (1919). The first official dent in the ‘strict privity’ rule in Arkansas was made by this Court in 1964 in Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S. W. 2d 885 (1964).
“The ‘unsoundness’ of this rule was also recognized by the 1965 Arkansas Legislature when on February 8, 1965, they passed Act No. 35 which struck down lack of privity as a defense in an action such as the one at bar.”

Act 35 of the 1965 Legislature is short, and we quote all of its three sections in full.

‘ ‘ SECTION 1. The lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence, although the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods.
“SECTION 2. The provisions of this Act shall not apply to litigation pending on the date it becomes effective. (Emphasis added.)
“SECTION 3. All laws and parts of laws in conflict with this Act are hereby repealed.”

Act 35 was approved on February 8, 1965. It contained no emergency clause. "We take notice that the 1965 Legislature adjourned on March 10,1965. Absent an emergency clause, Legislative acts do not become effective until 90 days after final adjournment of the Legislature, which, in this case, would be the 8th day of June, 1965. Thompson v. State, 151 Ark. 369, 236 S. W. 608.

While it is true that this court has been moving toward a reexamination of its position as to the necessity of privity in cases of this character (Delta Oxygen Co. v. Scott, supra) we now conclude that as to the real dispositive question in this case that we are bound by the clear and unambiguous provisions of said Act 35. It squarely states that lack of privity shall not be a defense only in such actions filed after its effective date which obviously is not the case as to the instant suit. Since the whole question was before the Legislature we are not inclined, nor do we feel at liberty to enlarge upon the relief spelled out in the Act.

The action of the trial court in sustaining the demurrer and dismissing the complaint is, therefore, affirmed.

George Rose Smith, J., not participating.


author: ■Carretón Harris, Chief Justice.

text:
    American Life & Annuity Ins. Co. v. Dancer
    5-3744
    398 S. W. 2d 529
    Opinion delivered January 31, 1966

      James R. Hoivard and Moses, McClellan, Arnold, Owen & McDermott, for appellant.

      Loftin, Herrocl & Cole, for appellee.
   ■Carretón Harris, Chief Justice.

Appellant, American Life & Annuity Insurance Company, issued its group accident policy to J. C. Tucker & Sons, providing, inter alia, that appellant would pay to any employee of the Tucker Company, who was injured by reason of accident, $100.00 per month, so long as the insured employee was wholly disabled from performing any and every duty pertaining to his occupation, not however, to exceed twelve months. On August 14, 1963, Joe P. Dancer, appellee herein, and an employee of the Tucker Company, suffered an accidental back injury during the course of his employment, and was hospitalized for a period of two weeks. Thereafter, according to Dancer’s testimony, he was under the care of a physician until February, 1964. On November 18, 1964, Dancer instituted suit against American Life and Annuity Insurance Company, seeking to recover the sum of $1,082.00, together with costs, interest, penalty, and attorneys’ fee. The complaint recited that appellant company had made partial payment prior to the filing of the complaint, and had tendered the additional amount of $56.66 in full settlement of the claim, but appellee had refused to accept this amount. Appellant company filed its answer, being a general denial, asking that the complaint be dismissed. On trial, the court, sitting as a jury, found that Dancer was entitled, under the policy, to the sum of $1,200.00, but that American Life and Annuity Insurance Company had already made partial payment, and the balance due to Dancer was $1,082.00. The judgment recites:

“The court further finds from the evidence submitted by the defendant that Subparagraph (1) under ‘Exceptions and Reductions’ is in conflict with the absolute assurance to pay as provided in ‘Part B—Total Disability’ and that the agreement to pay must be given preference. ’ ’

Judgment was also rendered for an attorneys’ fee in the amount of $216.40, penalty of 12% in the sum of $129.84, and interest at the rate of 6% per annum, together with all costs. From this judgment, appellant brings this appeal. Only one point is relied upon for reversal, vis, “There is no evidence in the record to support a judgment against the appellant in excess of Five Hundred Eighteen Dollars and Twenty-Four Cents ($518.24).”

The pertinent portion of the insuring clause, relied upon by appellee, reads as follows:

PART R

TOTAL DISABILITY

“If injuries as described in this Policy are sustained by the Insured Employee and within twenty (20) days from date of accident independently of all other causes, wholly and continuously disable the Insured Employee from engaging in any occupation or employment for wage or profit, the Company will pay for the period of such loss of time, but not exceeding twelve consecutive months, monthly indemnity at the rate of One Hundred ($100.00) Dollars.* * *”

Part C deals with first aid benefits for medical or surgical treatment, and Part D relates to additional benefits, if the injured employee is confined to a hospital. Following these three sections, there is a clause entitled “Exceptions and Reductions,” which excepts coverage in certain instances, Provision (1) being the only one relating to this litigation. This exception reads as follows :

“The insurance under this Policy shall not cover death or other loss caused or contributed to (1) any period of disability for which the Insured Employee is not under the professional care and regular attendance of a licensed physician, surgeon or osteopath other than himself;* * *”

The company admits liability for payments from the time of the accident (August 14, 1963) to February, 1964, but denies that it is liable under the policy for any payments after that date. This assertion is biased upon the provision under “Exceptions and Reductions,” mentioned above.

Under our cases, appellant company cannot avail itself of this defense, for we have held on numerous occasions that exceptions or exemption clauses must be specifically pleaded as a defense. Missouri State Life Insurance Co. v. Barron, 186 Ark. 46, 52 S. W. 2d 733. In that case, appellant company had issued a certificate of accident insurance under a group policy carried by the Missouri Pacific Railway Company to protect its employees from death resulting from accidental bodily injury, “effected through external, violent and aceidental means independent from all other causes* * *.” There, the company presented the same argument that is being urged in the instant litigation. This court said:

“* * * Appellant argues, however, that the group policy in the instant case contains an exception or exemption clause which brings the ease within the rule that there can be no recovery if a disease of the insured cooperated with the accident to produce death. The exception or exemption clause relied upon * * * is as follows :

“ ‘This insurance shall not cover accidental injuries, death or loss caused directly or indirectly, Avholly or partly by bodily or mental infirmity or by any kind of disease.’

“The testimony is in conflict as to whether death resulted to the insured from heat prostration, from an abscess or tumor found in one cell of his brain Avhen the autopsy was made, or from both causes co-operating together. Under instruction No. 3, requested by appellees and given by the court, before the jury could return a verdict for appellees they must find that heat prostration was the proximate cause of the insured’s death. As stated above, this was a correct declaration of law as applied to the liability clause pleaded as a basis for the recovery. Liability under said clause was denied, and this-was the only issue joined by the pleadings. The exemption or exception clause was not pleaded as a defense. It should have been pleaded specifically, and the failure to do so was a waiver by appellant,

Several cases are then cited in support of this holding. See also Stucker v. Hartford Accident and Indemnity Company, 220 Ark. 475, 248 S. W. 2d 383, and cases cited therein. Here, appellant company only filed a general denial, and, in so doing, waived any possible defense created by the exception clause.

Affirmed.

Cobb, J., not participating.

      Emphasis supplied.


author: Ed. P. MoPaddin, Justice.

text:
    Southwestern Bell Tel. Co. v. Siegler
    5-3761
    398 S. W. 2d 531
    Opinion delivered January 31, 1966

      Donald King and Bill R. Holland, Herschel H. Friday, for appellant.

      McMath, Leatherman, Woods & Youngdahl, By: John P. Sizemore, for appellee.
   Ed. P. MoPaddin, Justice.

This is a workmen’s compensation ease; and the question to be decided is whether the appellant Company has made advance payment of compensation to the employee, Siegler, within the purview of Ark. Stat. Ann. § 81-1319(m) [Repl. I960]. The Referee ruled for the Company; the Full Commission likewise ruled for the Company; but the Circuit Court reversed the Commission’s ruling; and the Company prosecutes this appeal.

The appellant Company insists that the ruling by the Commission was a finding of fact, and, as such, is binding on the Circuit Court and also on this Court under our rule that the findings of fact of the Workmen’s Compensation Commission have the force and effect of a jury verdict. Wren v. Jones, 210 Ark. 40, 194 S. W. 2d 896. But we reach the conclusion that the ruling of the Commission in this case was a finding of law and not one of fact. This is true since the Commission’s ruling was because of the wording of a written instrument called “The Plan,” as hereinafter discussed, under which Plan all payments were made to the employee, Siegler. The interpretation of that plan is, therefore, a question of law.

W. 0. Siegler, an employee of appellant, Southwestern Bell Telephone Company (hereinafter called “Company”), received an injury to his knee while in the course of his employment. He was totally disabled from September 5, 1963 through October 27, 1963, a period in excess of seven weeks. His rate of pay before his injury was $128.00 per week; and the Company continued to pay him that amount each week until October 27, 1963, said payments, totalling $972.80, having been made under the said “Plan” hereinafter mentioned.

Siegler suffered a residual permanent partial disability of 10% to his leg, for which he filed claim with the Workmen’s Compensation Commission. For this permanent disability he claimed $612.50.

The Company resisted the claim of $612.50, urging that the payment of the $128.00 per week for more than seven weeks had totalled $972.80, which was a greater amount than Siegler would have been entitled to receive under the workmen’s compensation law, not only for loss of time but also for the residual disability. Siegler claimed that the $972.80 was for benefits and not for compensation, and that these benefits had been paid to him because of the “Plan for Employees’ Pensions, Disability Benefits, and Death Benefits,” which was a plan put into effect by the Southwestern Bell Telephone Company many years ago; and Siegler claimed that the amount he received from this Plan had nothing to do with what was due him for compensation for his partial disability. The Company claimed that these payments were an advance payment of compensation for disability.

Our Workmen’s Compensation statute (Ark. Stat. Ann. § 81-1319(m) [Eepl. I960]) reads:

“Credit for compensation or wages paid. If the employer has made advance payments of compensation he shall be entitled to be reimbursed out of any unpaid instalment or instalments of compensation due. If the injured employee receives full wages during disability he shall not be entitled to compensation during such period.”

Under this statute, if the Company made advance payments of compensation to Siegler, then the present claim must be disallowed. If the payment made by the Company to Siegler was anything other than “advance payment of compensation,” then Siegler is entitled to recover. Such is the question here to be resolved.

Beginning in 1913 the Southwestern Bell Telephone Company put into effect a company plan whereby, under certain conditions, its employees would receive “pensions, disability benefits, and death benefits”; and from time to time the plan has been amended. This was a unilateral plan put into effect by Southwestern Bell Telephone Company; and the employees made no contribution 4whatsoever to the plan. The plan was administered entirely by a committee appointed by the Company, even though the plan had been recognized in the Collective Bargaining Agreement. It was under this Plan that Siegler received $128.00 a week from September 5, 1963 to October 27, 1963, which amount was exactly the same as his wages.

We reach the conclusion that the payments made under the Company Plan were “benefits” and were not advance payments of compensation. The Plan is contained in a 28-page printed booklet which is an exhibit in this case. Throughout the entire booklet the amount that a worker would receive is either a “pension” if he retires at the end of his service, or is a “benefit” if he is paid for loss of time or disability. It is never called “advance payment of compensation.” The burden was on the Company to establish that the payments which Siegler had received were advance payments for compensation for his permanent partial disability. The language of the Plan does not state that any of the weekly payments of benefits under the Plan would be considered as advance payments of compensation for a permanent disability that might or might not later arise. Our view on this is materially strengthened because throughout the language of the printed booklet containing the Plan, the amounts that the worker is to receive are called “benefits”; and there are a number of cases which hold that there is a material difference between money received as “benefits” and money received as “compensation.”

In Staley v. Ill. Central, 268 Ill. 356, 109 N. E. 342, L. R. A. 1916A 450 (1915), there is this sentence: “The words ‘insurance relief,’ ‘benefit,’ or ‘indemnity,’ would, none of them, in the connection in which they are used, seem to include the compensation to be paid under the Workmen’s Compensation Act.” In DiCicco v. Industrial Comm., 11 Ohio App. 271 (1919), there is this sentence: “In the Workmen’s Compensation Law a very clear distinction is made between ‘compensation’ and ‘benefits.’ ” And in Terry v. General Electric, 232 N. Y. 120, 133 N. E. 373 (1921) there is this sentence: “A distinction is made between compensation and benefits.”

The money which Siegler received might have been either (a) wages, (b) gratuities, (c) benefits, or (d) advance payment of compensation. Until the Company showed that under the Plan such payment could have been nothing except advance payment of compensation, the Company failed to establish its case. The Company relies on our case of Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S. W. 2d 450; and also relies on cases decided in other jurisdictions involving this or similar benefit plans; some of such cases being: Hurd v. Ill. Bell Tele. Co., 136 F. Supp. 125, affd. 234 F. 2d 942; Tyler v. N. Y. Tele. Co., 192 F. Supp. 52; American Fed. of Labor v. Western Union, 179 F. 2d 535; Potlatch Forest v. International Woodworkers, 108 F. Supp. 906, affd. 200 F. 2d 700; and Lewis v. Quality Coal Corp., 270 F. 2d 140.

Siegler relies on our holding in Looney v. Sears Roebuck, 236 Ark. 868, 371 S. W. 2d 6; and also cites to us many cases from other jurisdictions. We have limited the holding in Lion Oil Co. v. Reeves, supra, to its own particular facts: our holding in Looney v. Sears Roebuck so stated. The effect of the last mentioned ease was to hold that only where the company clearly established that the amount received was an advance payment of compensation could the company be entitled to any offset. In all other instances the employee could recover for his disability. We consider the case at bar to be ruled by Looney v. Sears Roebuck, and therefore affirm the judgment of the Circuit Court.

Affirmed.

Cobb, J., not participating.

      At the hearing before the Referee, claimant’s attorney stated: “The only question is whether or not the company has satisfied the requirement of the workmen’s compensation law for payment of permanent disability by reason of his disability.” Siegler’s claim for $612.50 for permanent partial disability was calculated by him in accordance with the Workmen’s Compensation Law at $35.00 per week for 17% weeks, which is 10% of the statutory allowance of 175 weeks.

      It was shown that under the Workmen’s Compensation Law Siegler would have been entitled to $265.00 for temporary total ■disability for the seven and a fraction weeks; and then would have been entitled to $612.50 for permanent partial disability to his leg. These amounts would total $877.50. The Company had already paid Siegler $972.80, and therefore insisted that this amount more than paid for Siegler’s loss of time and also partial disability of $612.50.

       Ark. Stat. Ann. § 81-1320 (b) (Repl. 1960) of our Workmen’s Compensation Law reads: “No agreement by an employee to pay any portion of the premium paid by his employer to a carrier or to contribute to a benefit fund or department maintained by such employer for the purpose of providing compensation or medical services and supplies, as required by this act [§§ 81-1301—81-1349] shall be valid, . . .” Under this section if the employee had made any contribution to the “Plan” no part of any payment made under the Plan could ever have been considered as an offset against workmen’s compensation benefits.

      In Section 8, paragraph 27 of the Plan for Employees’ Pensions, Disability Benefits, and Death Benefits, these words appear: “In case any benefit or pension, which the Committee shall determine to be of the same general character as a payment provided by the Plan, shall be payable under any law now in force or hereafter enacted to any employee of the Company, to his beneficiaries or to his annuitant under such law, the excess only, if any, of the amount prescribed in the Plan above the amount of such payment prescribed by law shall be payable under the Plan . . .”

      Some of these are: Montgomery County v. Kaponin (Md.), 205 A. 2d 292; Williams v. Dept. of Welfare (N. J.), 129 A. 2d 56; Leaver v. Midvale Co. (Pa.), 57 A. 2d 698; Creighton v. Continental Co. (Pa.), 38 A. 2d 337; Bobertz v. Hillside (N. J.), 14 A. 2d 495; DiMeglio v. Slonk Const. Co. (N. J.), 2 A. 2d 470; Zbirowski v. John T. Lewis (Pa.), 196 A. 606; Crane Co. v. Loome (Ill.), 165 N. E. 2d 728; Fabian v. Link Division, 253 N. Y. S. 2d 175; Gudmendsen v. Olin Mathieson, 223 N. Y. S. 2d 249; Stewart v. First National City Bank, 222 N. Y. S. 2d 374; Pilger v. Westchester County, 131 N. Y. S. 2d 795; City Council of Augusta v. Young (Ga.), 127 S. E. 2d 904; Butler v. Lee (Ga.), 102 S. E. 2d 498; City of Palo Alto v. Industrial Accident Commn. (Cal.), 345 P. 2d 586; Pope v. Coney (La.), 119 So. 2d 136; Anderson v. City of Miami (Fla.), 101 So. 2d 612; American Bridge Division v. McClung (Tenn.), 333 S. W. 2d 557; and Krupp v. J. C. Penney Co. (Ariz.), 75 P. 2d 692.


author: Ed. F. McFaddin, Justice.

text:
    Wirges v. Roberts, Judge
    5-3883
    398 S. W. 2d 518
    Opinion delivered January 31, 1966

      Tom Eisele, for petitioner.

      Bruce Bemiett, Attorney General, Jack Lessen-berry, Asst. Atty. Gen., for respondent.
   Ed. F. McFaddin, Justice.

This is an attack on the constitutionality of Act 96 of the 1965 Legislature, by which law there was created for a limited time the Second Division of the Circuit Court in the Fifth Judicial District. The same Act was before us in the recent case of Bean v. Roberts, 240 Ark. 9, 397 S. W. 2d 784.

The present case was filed in this Court by petitioners, Wirges et alas a petition for prohibition. Petitioners alleged: that they are defendants in certain criminal cases pending in the Circuit Court of Conway County; that Hon. Russell Roberts, acting as Judge of the Second Division of Circuit Court in Conway County, is about to call these petitioners to trial on the pending criminal charges; that in a hearing before Judge Roberts the petitioners challenged the existence and jurisdiction of the so-called Second Division of Circuit Court in Conway County; that said challenges were all denied and the cases set for trial; and that petitioners will be compelled to stand trial unless the Supreme Court should issue a writ of prohibition. The petition was filed in this Court on January 6, 1966, and was promptly heard. The filing of briefs was completed •on January 19, and on January 24 we announced our decision denying prohibition. This Opinion gives the reasons for such decision.

We bypass entirely any and all questions as to whether the proper way to challenge the validity of the Act 96 is by prohibition, quo warranto, or other proceeding. The question now presented is so important to the due administration of justice that we consider the issue on its merits, regardless of procedural vehicles. The question is: “Is Act 96 of 1965 valid?”

The principal point used for the attack on the Act 96 is because of the language found in Sections 2 and 7 of the Act, which read:

“Section 2. Hereafter there shall be an additional judge of the Fifth Judicial Circuit who shall be appointed by the Governor and shall hold office until December 31, 1966.
“Section 7. It is the intention of the General Assembly that the Second Division of the Fifth Judicial Circuit provided for herein, shall be temporary only and shall cease to exist on December 31, 1966.”

Petitioners say in their brief:

“Section 17 of Article VII [of the Arkansas Constitution] provides that judges of the Circuit Court shall be elected, and also provides that the term of office shall be four years. Act 96 establishes a Circuit Court which can in no event have a term in excess of one year, ten months, and five days.... A legislative act may not, under Article VII, Section 17 [of the Constitution] either create a condition whereby circuit judges can be chosen other than by election, or create circuit courts with terms of office which are other than four years .... Before discussing the law it is essential that we understand the effect which would result if Act 96 were held to. be. constitutional.' Clearly it could, for practical purposes, be used to do away with the election of all circuit judges. Elected circuit courts could be abolished by legislative act when existing terms expire. Thereafter, the Legislature could set up any number of ‘temporary’ courts or divisions which would be filled by gubernatorial appointment. The office would expire without the intervention of any election by the people.”

We are thus asked to hold the Act 96 to be void because the Second Division of the Fifth Judicial Circuit was created for only one year, ten months, and five days; and petitioners say that this creation of a temporary division might be used by the Legislature to entirely avoid the election of all circuit judges by the people. We see no merit in this argument. It is admitted that the Legislature could have created a permanent Second Division of the Fifth Judicial Circuit and that such legislation would have been valid. Certainly if a second division could be created permanently, it could be created temporarily. If the Legislature had created a permanent Second Division of the Fifth Judicial Circuit, then the Governor, acting under Amendment No. 29, could have filled the vacancy until the next General Election (Pope v. Pope, 213 Ark. 321, 210 S. W. 2d 319); and, in such event, the appointee would have served until December 31, 1966, just as the appointee of the Second Division of the Fifth Judicial Circuit is now doing under Act 96. If the Legislature had created a temporary division of the Fifth Judicial Circuit to exist for longer than December 31, 1966, then, of course, the office of Circuit Judge of the - Second Division would have been filled by election of the people at the General Election in 1966; but until December 31, 1966, the appointee of the Governor would, at all events, have held the office.

Petitioners cite State v. Green et al., 206 Ark. 361, 175 S. W. 2d 575, as being an instance wherein this Court held unconstitutional a legislative enactment attempting to create a judgeship. But that case affords the petitioners no support. In State v. Green this Court held Sections 1 and 2 of Act 290 of 1943 to be void. This Court held that the office of regular Circuit Judge was not vacant; that the regular Circuit Judge was merely absent; that Section 21 of Article VII of the Constitution prescribed the method of electing a special Judge when the regular Judge was absent; and that Sections 2 and 7 of Act 290 of 1943 attempting to create a special Judge were void because they violated the said Section 21 of Article VII of the Constitution. That case has no direct bearing on the issues in the case at bar. Here, the question is not the validity of the appointment of Judge Roberts, but the validity of the Act which created the Second Division of the Fifth Judicial Circuit; and, as we have previously shown, Second Divisions have been created in Circuit Courts and Chancery Courts in this State for many, many years.

In effect, what the petitioners are asking us to do is to presume that by Act 96 the Legislature was seeking to evade the constitutional right of people to elect circuit judges, as provided by Section 17 of Article VII; and the petitioners indulge the supposition that the 1967 Legislature will again create another temporary Second Division in the Fifth Judicial Circuit and thus the people will be denied the right of electing the Judge of the Second Division of the Fifth Judicial Circuit. We cannot presume that the Legislature has acted, or will act, other than in good faith. Certainly, until some such subsequent legislative enactment as presupposed by the petitioners, should be adopted,' no real case is px;esented. In short, suppositions as to future legislation cannot be used now to make suspect the legislative' enactment before us.

The petitioners also seek to attack the Act No. 96 insofar as concerns the two divisions of Circuit Court in Yell County. But the situation in Yell County does not concern these petitioners. They are to be tried ■ in Conway County.

We have carefully considered all the other arguments advanced by the petitioners and find none to possess merit. The petition for writ of prohibition is denied.

      Such, has been done in numerous instances. Act No. 7 of 1895 (Ark. Stat. Ann. § 22-326 [Repl. 1962]) provided for a second judge of the Sixth Circuit; and Act No. 64 of 1913 (Ark. Stat. Ann. § 22-326.1 [Repl. 1962]) provided for a third judge in the Sixth Circuit. Act No. 3 of 1927 provided for an additional judge in the Thirteenth Circuit (Ark. Stat. Ann. § 22-333 [Repl. 1962]); Act No. 42 of 1947 (Ark. Stat. Ann. § 22-412 [Repl. 1962]) provided for a second division in the Chancery Court in the First Chancery District; and the creation of such second division was held valid in Pope v. Pope, 213 Ark. 321, 210 S. W. 2d 319. See also Act No. 30 of 1949 (Ark. Stat. Ann. § 22-417.1 [Repl. 1962]).

      The case came before the Court on appeal by the State from an order allowing Green and Rock to have habeas corpus. It is self evident from the Opinion that the Supreme Court was not concerned with procedural questions, else it could easily have held that the court was de jure and the person presiding over the court was de facto, just as we held in Pope v. Pope, supra. Rather, the case was a vehicle to carry to the Court for determination the validity of Act 290 of 1943, which created the office of emergency Judge while the regularly elected Judge was in the military service.


author: George Bose Smith, Justice.

text:
    Norton v. Nat. Bank of Commerce of Pine Bluff
    5-3572
    398 S. W. 2d 538
    Opinion delivered January 31, 1966

      Carlton Currie, for appellant.

      Bridges, Young & Matthews, for appellee.
    Brief amicus curiae, Harry E. Meek and Joé E. Barrett,

   George Bose Smith, Justice.

This case presents a number of questions of first impression under the Uniform Commercial Code.

On September 4, 1963, the appellant Norton, an automobile dealer, sold a 1957 Oldsmobile sedan to Billy 'Goldsmith, who executed a promissory note and a conditional sales contract for the unpaid purchase price. On the same day Norton in turn sold the note and contract to the appellee bank. Norton endorsed the note and executed a written assignment of the contract, with a provision that if Goldsmith should default in his obligation Norton would repurchase the contract for the amount due thereon (with costs and expenses).

Goldsmith defaulted after having made only two monthly payments. On January 9 the bank repossessed the car, notifying Goldsmith by letter that it had done so. On January 24, without notice either to Goldsmith or to Norton, the bank sold the car to one of its customers, by private sale for $75.00. This left an unpaid balance of $277.88 on the debt. The bank demanded that sum from Norton, who refused to pay.

The bank sued Norton only. According to the undisputed evidence it had been the bank’s uniform custom in the past to give Norton and other dealers an opportunity to repurchase such contracts. Norton had never failed to repurchase when asked to do so. The manager of the bank’s personal loan department was unable to explain why in this instance the bank for the first time proceeded against the car without notice to the dealer. There is evidence that a 1957 Oldsmobile would sell for from $25.00 to $125.00. It is admitted that an automobile dealer is in a better position than a bank to obtain full value in the sale of a used car.

The circuit court, sitting without a jury, found that the bank had obtained a fair price for the car and entered judgment against Norton for the balance due on the debt. Norton contends that the bank should have given him notice of the proposed sale, so that he might protect himself by repurchasing the commercial paper and reselling the car himself. He insists that the bank’s failure to give him notice discharged his entire liability.

We requested amicus curiae briefs from Joe C. Barrett and from Harry E. Meek, for which we are grateful. Mr. Barrett states that the Permanent Editorial Board of the Uniform Commercial Code makes its services available to appellate courts when the interpretation of the Code is in issue. Members of the Permanent Board assisted Mr. Barrett in the preparation of his brief.

The two amicus briefs discuss the provisions of the Code in greater detail than counsel for the litigants have done. Both amici are of the view that Norton was not entitled to notice that a private sale was contemplated, for the reason that Norton was not a “debtor” within the pertinent section of the Code. Ark. Stat. Ann. § 85-9-504 (3) (Add. 1961). They seem, however, to reach the same result that would follow if Norton had been entitled to notice. That is, they concede that the bank acted improperly, that it should have given Norton an opportunity to repurchase the contract, and that it is liable to Norton for any damages he suffered as a result of the bank’s misconduct. (One of the amici would award Norton, in addition to his actual damages, the finance charge and penalty set out in § 85-9-507 [1] of the Code. The other would award the finance charge plus penalty, when the actual damages cannot be fixed with reasonable certainty.)

It is our conclusion that Norton was a debtor within the terms of the statute and was therefore entitled to notice that a private sale was impending. The statute requires notice to a “debtor,” with certain exceptions. Section 85-9-504 (3). We dismiss two possible exceptions to the requirement of notice 'before reaching the main issue. ■

First, the Code dispenses with notice when the collateral to be sold “is of a type customarily sold on a recognized market.” Section 85-9-504 (3). We cannot approve the bank’s contention that a used car falls in this category. Obviously the Code dispenses with notice in this situation only because the debtor would not be prejudiced by the want of notice. Thus a “recognized market” might well be a stock market or a commodity market, where sales involve many items so similar that individual differences are nonexistent or immaterial, where haggling and competitive bidding are not primary factors in each sale, and where the prices paid in actual sales of comparable property are currently available by quotation. We agree with the view taken in Pennsylvania, that there is no recognized market for used cars. Alliance Discount Corp. v. Shaw, 195 Pa. Superior Ct. 601, 171 A. 2d 548 (1961). What one 1957 Oldsmobile sells for does not fix the amount a different one may be expected to bring.

Secondly, “except in the case of consumer goods” Norton, if he was a person having a security interest known to the bank, would have been entitled to notice of the proposed sale. Section 85-9-504 (3). For the moment it is enough to say that all four briefs expressly or tacitly assume that the Oldsmobile was- “consumer goods,” because Goldsmith bought it as a pleasure vehicle. Hence Norton may not have been entitled to notice under this section of the Code.

We come to the main question: Was Norton a “debtor” to whom notice should have been given? The controlling definition appears in § 85-9-105 (d): “ ‘Debtor’ means the person who owes payment or other performance [our italics] of the obligation secured, whether or not he owns or has rights in the collateral, and includes the seller of accounts,- contract rights or chattel paper. Where the debtor and the owner of the collateral are not the same person, the term ‘debtor’ . . . may include both where the context so requires

Norton had promised to repurchase the contract for the amount due. He was a person who owed “other performance” of the obligation. In our judgment the following illustration in Paragraph 4 of the official Comment to $ 85-9-105 is conclusive of Norton’s status as a debtor:

“4. A dealer sells a tractor to a farmer on conditional sales contract. The conditional sales contract is a ‘security agreement,’ the farmer is the ‘debtor,’ the dealer is the ‘secured party’ and the tractor is thqtype of ‘collateral’ defined in Section 9-109 as ‘equipment.’ But now the dealer transfers the contract to his bank', either by outright sale [the situation now before us] or to secure a loan. Since the conditional sales contract is a security agreement relating to specific equipment the conditional sales contract is now the type of collateral called ‘chattel paper.’ In this transaction between the dealer and his bank, the bank is the ‘ secured party, ’ the dealer is the ‘debtor,’ and the farmer is the “account debtor.’ ”

For the benefit of those who do not have ready access to the briefs on file in this case, and to the end that the amici may know why we do not fully agree with their position, we think it best to explain the arguments presented upon the question of whether Norton was a debtor. As the discussion submitted by Mr. Barrett and the Permanent Editorial Board is more detailed than that in any other brief we will direct our remarks to it.

Mr. Barrett and the Board draw a distinction between the note and contract (“chattel paper”) on the one hand and the Oldsmobile on the other. It is their position that Goldsmith alone was the debtor with respect to the Oldsmobile; so Norton was not entitled to notice that it was to .be sold. Norton, however, was the debtor with respect to the chattel paper and would have been entitled to notice if the bank had decided to sell that paper. •

The distinction urged by the Barrett-Board brief is not, in onr opinion, clearly spelled out by the Code, whatever the intention of its draftsmen may have been. In many situations, including the one at bar, it might lead to injustice.

We attach significance to the fact that Mr. Barrett and the Board refer to the initial transaction between Norton and the bank as a “financing” of Norton by the bank. Yet that transaction was not a financing in the same sense that it would have been if Norton had pledged the Goldsmith chattel paper to secure Norton’s own note to the bank. In that event if the bank decided to sell the Goldsmith paper to a third person and apply the proceeds to Norton’s note, there would be a good reason for giving Norton notice of the proposed sale: to enable him to protect himself against a sale for an inadequate price.

B.ut Norton was not “financed” by the bank in the sense of having a direct personal obligation to pay money in any event. He sold the Goldsmith chattel paper outright, assuming only a secondary liability if Goldsmith should default. In that situation if the bank should decide to sell the.chattel paper to a third person, the terms of sale would be of no especial interest to Norton, for his secondary liability to the new holder would remain the same. Norton, however, was directly affected by the sale of the Oldsmobile; the amount obtained in that sale fixed his pecuniary liability. In simple fairness he should have had notice—a requirement entailing no real inconvenience or hardship to the.bank;

In resting our decision on the matter of notice we do not imply that we necessarily agree with counsel’s view that the Oldsmobile was “consumer goods” merely because Goldsmith bought it as a pleasure vehicle. No doubt the car was within the definition of consumer goods as far as Goldsmith himself was concerned. Section 85-9-109. Bnt, under § 85-9-504 (3), whether or not Norton, as a person having a pre-existing security interest in the car, was entitled to notice of sale might depend upon whether the car was consumer goods. Yet, as far as Norton was concerned in the matter of notice, it was completely immaterial that Goldsmith had originally bought the car for pleasure rather than for business. A principle should not be extended beyond its underlying reason. We reserve judgment upon this aspect of the case.

The bank also contends that Norton waived his right to notice of the sale by signing a printed assignment of the conditional sales contract (prepared by the bank) which recited that Norton waived all notices to which he might otherwise have been entitled. Under § 85-9-501 (3) the attempted waiver was ineffective.

Finally, what is Norton’s measure of damages? We do not agree with his contention that the bank’s failure to give him notice of the intended sale completely discharged his obligation. For the most part the Code follows the theory formerly applicable to mortgages, by which the debtor was entitled to any surplus realized upon foreclosure and was liable for any deficiency. Section 85-9-504 (2). The Code also provides that if the secured party has disposed of the collateral in a manner not in accordance with the Code “any person entitled to notification . . . has a right to recover from the secured party any loss caused by a failure to comply” with the provisions of the Code. Section 85-9-507 (i).

Upon the issue of Norton’s damages simple considerations of fair play cast the burden of proof upon the bank. It was the bank which wrongfully disposed of the ear without notice to the debtors. Thus it was the bank’s action that made it at least difficult, if not impossible, for Norton to prove the extent of his loss with reasonable certainty. A chattel such as a car may well be a thousand miles away before the debtor learns of its sale without notice. It would be manifestly unfair for the creditor to derive an advantage from its own misconduct. We think the just solution is to indulge the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law. The extent to which the penalty set out in § 85-9-507 (1) may be applicable in the case at bar is an issue that may depend upon the further development of the proof.

Since the case was not tried upon the principles of law that we deem to be controlling the judgment must be reversed and the cause remanded for a new trial.

Harris, C. J., not participating.


text:
    Truck Ins. Exchange v. Basham
    5-3677
    398 S. W. 2d 512
    Opinion delivered January 31, 1966

      Shaw, Jones & Shaw, for appellant.

      N. D. Edwards, for appellee.
   George Bose Smith, Justice.

The appellee’s International truck was badly damaged in 1963 when it left the highway near Fayetteville and turned over. The loss (with $100.00 deductible) was covered by an insurance policy issued by the appellant. The insurer elected to have the vehicle repaired instead of paying the net loss. A dispute arose about whether the repair work was being done in such a manner as to restore the truck to its former condition. Negotiations between the parties broke down. Basham eventually brought this action and recovered the full amount of his claim, $3,150.00, plus the statutory penalty and an attorney’s fee of $1,000.00.

The appellant argues seven points for reversal. Five of the points challenge the sufficiency of the evidence to establish (a) the inadequacy of the repairs and (h) the amount of the loss. Those contentions involve questions of fact that may be disposed of by a review of the testimony in the light most favorable to the verdict.

After the accident the insurance company obtained three bids for the repair work and awarded the job to an International dealer whose bid was $1,362.24. The dealer subcontracted a substantial part of the work to a small garage near Tontitown. After the work had been in progress for some time Basham and a qualified repairman visited the garage to inspect the work. Their testimony, which the jury evidently accepted, shows beyond doubt that the repair work was defective. The garage lacked the tools needed to straighten the frame of the truck. Essential welding was being done so poorly that it would have lasted for only a short time. The doors on the cab did not shut properly. Basham took the matter up with the insurer’s agent, who, at Basham’s request, suspended tlae repair work. The parties were unable to settle their dispute, and this litigation ensued.

Upon the second point, the amount of the loss, there is sufficient testimony to support the verdict of $3,-150.00. The witness Meadors, a qualified expert, estimated the value of the truck just before the accident to have been $3,500.00. He further stated that the salvage would be of no value. There was other supporting testimony, including the significant fact that the insurer finally sold the truck for only $500.00, although the Tontitown garage’s bill for its unfinished repairs was more than $600.00. Evidently the damaged vehicle had little or no salvage value.

The insurance company also insists that the court should have given its requested instruction on the measure of damages. There was no error, however, for the court did give an instruction which quoted the appropriate language in the insurance policy and submitted to the jury the issue of the plaintiff’s damages. There was no need to duplicate the charge upon this question.

In its remaining point the appellant contends that an attorney’s fee of $1,000 is excessive, in view of the amount of Basham’s recovery. No doubt the trial court took the contemplated appeal into account in fixing the fee. Upon that basis the fee is not unreasonable.

Affirmed.

Cobb, J., not participating.


author: Paul Ward, Justice.

text:
    Douthit v. Ark. Power & Light Co.
    5-3737
    398 S. W. 2d 521
    Opinion delivered January 31, 1966

      Donald Poe, for appellant.

      House, Holmes <fe Jewell, for appellee.
   Paul Ward, Justice.

Lloyd Douthit and his wife (appellants) instituted this litigation to recover the money paid to Arkansas Power and Light Company (appellee) to procure the installation of electricity for their farm residence.

Appellee filed a motion for summary judgment, and the matter was submitted thereon to the trial judge on exhibits, affidavits, and memorandum briefs. The trial court sustained the motion and dismissed the complaint. On appeal appellants contend, for a reversal; One, that they were entitled to electrical service free of charge, and; Two, that a genuine issue of fact was presented to the trial court.

One. We do not agree that appellee was legally obligated, under the admitted facts of this case, to erect an electrical power line to appellants’ farm without first demanding a reasonable charge therefor. Appellants lived on a farm—not within the corporate limits of any town or city. Appellee had no electrical power line in the immediate vicinity of appellants’ farm. To reach the farm it was necessary for appellee to acquire a right-of-way across two other properties, and appellants agreed (in writing) to pay, and did pay, $100 for the same. In like manner appellants agreed (in writing) to pay, and did pay, appellee the sum of $923.49, being the amount (or part of the amount) necessary to erect the power and light line to appellants’ property.

Since there is no contention here that the above mentioned charges were unreasonable, we hold that the action of the trial court (in sustaining the motion for a summary judgment) was proper under the rule approved in City of Malvern v. Young, 205 Ark. 886 (p. 894), 171 S. W. 2d 470, where this Court quoted with approval from Professor Pond in § 275 of' his work on Public Utilities, as follows:

“* * Where the location of the prospective customer is unusual and the conditions of furnishing him service are peculiar because of the distance he is removed from the center or thickly populated district of the municipality or because of the sparsely settled condition of his own neighborhood, it is only reasonable that the public service corporation, providing him with its service, be permitted to impose other and different conditions from those applicable to a customer centrally located in the thickly populated district of the municipality.”

To the same effect see Treadway v. Arkansas Louisiana Gas Co., 196 Ark. 874, 120 S. W. 2d 378 (1938) and Twin City Pipe Line Company v. Harding Glass Company, 283 U. S. 353 (1931).

Two. We agree with appellants that if any vital and material fact issue was presented the trial court should not have sustained appellees motion for a summary judgment. One of the grounds for granting a summary judgment is that there is no genuine issue as to a material fact. Ark. Stat. Ann. § 29-211 (Repl. 1962). We are unable to find where any such issue was presented in this case.

It is undisputed that appellants, on October 15, 1959, executed to appellee a Right-of-Way Permit over their land. A copy of such Permit was introduced in evidence as appellee’s Exhibit “A”. Also in the record is appellee’s Exhibit “B” which is a copy of an instrument designated as an “Agreement for Cash Contribution in Aid of Construction.” This instrument is also dated October 15, 1959 and is signed by both parties to this action—appellee being “first party” and appellant being ‘ ‘ second party. ’ ’ Excerpts in this instrument read:

“And the said party of the second part desiring the convenience of said service and in consideration of the investment to be made by the party of the first part which cannot be justified by the anticipated revenue does hereby agree to contribute to said party of the first part nine hundred twenty three . . 49/100 . . dollars before the construction of said line is begun as an inducement to said company to make such preparations for the supplying of electric service at such rates as may be in accordance with the Rules and Regulations of the Arkansas' Public Service Commission.”
# # * # * # #
“It is not intended that said party of the second part shall acquire any rights or interest in or to said electric line or other improvements or equipment the said party of the first part may construct under the provisions hereof, and the party of the first part reserves the right to use said line if constructed to serve other customers which may be connected to this proposed line.”

We find no testimony or valid contention in the record which amounts to a contradiction of the terms of the above mentioned instruments. In appellants’ complaint it is alleged that appellee “appropriated such right-of-way to their own use . . . and have extended the electric line and is now using said line of the plaintiffs without paying them . . . .” The prayer was that appellee repay them the sum of $1,023.49. The above allegations and contentions on the part of appellant are patently contrary to the written instruments above mentioned. If any testimony had been offered by appellant (which we do not find in the record) it would not have been admissible under the general rule announced by this Court, more than 120 years ago, in the case of Bertrand v. Byrd, 5 Ark. 651, where we said:

“The general rule upon both principle and policy is, that a written contract mutually adopted by the parties for the security of these rights, and as the highest evidence of their intentions, shall not be impaired or impeached by parol.”

In Mitchell v. Martindill, 209 Ark. 66 (p. 69), 189 S. W. 2d 662 there appears this statement:

“The written instrument must be considered as containing the true agreement between the parties, and as furnishing better evidence than any which can be supplied by parol. ...”

Accordingly the judgment of the trial court must be, and it is hereby, affirmed.

Cobb, J., not participating.


author: Jim Johnson, Justice. Paul Ward, Justice,

text:
    Williams v. Arthur J. Arney Co.
    5-3772
    398 S. W. 2d 515
    Opinion delivered January 31, 1966

      II. Clay Robinson, for appellant.

      Coleman, Gantt, Ramsay & Cox, for appellee.
   Jim Johnson, Justice.

This appeal arises from an injunction against picketing. On July 7, 1965 appellees Arthur J. Arney Company, Inc., an Arkansas corporation, and Arthur J. Arney, Jr., filed a complaint in Jefferson Chancery Court against appellants Jasper Williams, five other individuals and the Construction and G-eneral Laborers’ Local Union 858. Appellees alleged the.company had contracted to build a building at Arkansas A.M. & N. College and an addition to Simmons First National Bank and while engaged in this construction, the individual appellants, as representatives of the union, began to picket the two construction sites with signs saying that appellees were not paying the prevailing wages for laborers; that the picketing was for the sole purpose of coercing the company into discharging non-union employees and hiring only members of the laborers union; that the company used union labor entirely, with the exception of common laborers and paid its laborers the Pine Bluff prevailing wage; that the objective of the picketing was in violation of Ark. Stat. Ann. §§ 81-201-81-203 (Repl. 1960) and Amendment 34 of the Arkansas Constitution, the “right to work” law; that because of the picketing, union member employees of appellees and their subcontractors refused to work on the job sites, causing appellees irreparable damage; and prayed that appellants be enjoined from picketing the job sites and for judgment for damages caused by the picketing. A temporary injunction was issued the same day, July 7th, with hearing on a permanent injunction set for July 21st. On July 12th, this court issued its mandate to the trial court setting; aside the injunction which had been granted without reasonable notice to appellants, without prejudice to the right of appellees to apply to the chancery court for an injunction after first giving notice to appellants.

Appellants answered the complaints, alleging that the picketing was for the purpose of publicizing that appellees were not paying the wage scale established by a collective bargaining agreement between the local union and the Arkansas General Contractors for the Pine Bluff area, which wage scale is the prevailing wage scale as established by the U. S. Department of Labor for the Pine Bluff area, and for the further purpose that appellees have refused to hire union members and the Union does not believe that appellees have the right to refuse to hire laborers because of their affiliation with the local union. On July 21st, after a hearing, a temporary injunction was again granted, which was made permanent.

For reversal appellants contends that “the chancellor did not find that the purpose of the picketing by the union was to coerce the employer into hiring only union members, as alleged in the complaint, nor did the chancellor find a violation of the provisions of Ark. Stat. Ann. §§ 81-201—81-203; consequently the injunction was wrongfully issued.”

In its opinion the trial court did find, inter alia, that the primary purpose of the picket line was to induce or compel appellees to sign an employment agreement with the union. The court also found that the prevailing wage in the Pine Bluff area for common labor was $1.25 to $1.50 per hour (which is what appellees were paying).

The testimony leaves no doubt that one of the purposes of the picketing was to induce appellees to sign an employment agreement. The agreement is one between the Associated General Contractors, Arkansas Chapter, and appellant Local Union 858, which contains an hourly pay scale for various classes of employees including common labor. According to the agreement, the pay for common labor at the time of suit was $2.30 an hour. It is undisputed that this is the pay scale paid on much of the larger industrial construction in the area, on all federal construction in the area, and is the same scale adopted by the U. S. Department of Labor.

The agreement also contains the following provision:

“Section 6. That the Union will furnish at the request of the contractor duly qualified workmen in the various classifications covered by this Agreement, in sufficient numbers as may be necessary to properly perform work contracted for by the contractor, in the manner and under the conditions specified in this Agreement.”

Appellees argue that to demand signing of an agreement containing this provision is a violation of Amendment 34 and clearly within the prohibition contained in Kaiser v. Price-Fewell, Inc., 235 Ark. 296, 359 S. W. 2d 449. The chancellor did not find a violation of Amendment 34, and we do not agree that Section 6 of the agreement falls within Price-Fewell. The agreement provides that the local union will be bargaining agent for the employees, and the Associated General Contractors, Arkansas Chapter, will be bargaining agent for the contractor. Nowhere in the agreement is there a requirement that the employees be or become union members or that the contractor be or become a member of the Associated General Contractors. Further, section 6 states the union will supply workmen at the request of the contractor, but nowhere does the agreement provide that the contractor must request workmen from the union.

In Price-Fewell it was obvious that in order to obtain work on a job, a workman (even non-union) must “affiliate” in some way with a union. That is not the case here. There was some testimony that the union wanted appellees to hire union labor, but the preponderance of the evidence was to the effect that the union did not demand that appellees hire union labor or union labor exclusively. It is quite logical for the union to want the contractor to use union labor, even so that desire is a far cry from demanding that the contractor use union labor or union labor exclusively.

As conceded by appellants, the signs carried by the pickets might have been better worded, however on the whole case we, like the chancellor, are unable to say that there was a violation of Amendment 34 of the Arkansas Constitution or its enabling legislation, Ark. Stat. Ann. 81-201—81-205 (Bepl. 1960). This being true we find no basis for the chancellor’s conclusion that the picketing here in question was unlawful. See Netherton v. Davis, 234 Ark. 936, 355 S. W. 2d 609.

Reversed.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. I am unable to agree with the majority opinion. The essence of my reasons is summarized below.

The chancellor was fully justified in finding; that $1.25 per hour was the prevailing wage rate for common labor in the Pine Bluff area; that no employee was asking for a raise, and, that the purpose of the picketing was to force appellees to hire union laborers. Appellants’ agent was quoted as saying: “We want you (appellees) to sign this union labor contract and work union labor.” The record shows that the agent admitted making the quoted statement.

The opinion of the chancellor contains this statement: “The court finds that the maintaining of the picket line around the construction is unlawful.” (My emphasis.) Ark. Stat. Ann. § 81-201 (Repl. 1960) gives appellants the right to bargain for higher wages at any time and under any circumstances, but I do not understand it gives them the same freedom to picket. This case is, in my opinion, a fine example of the truth of the old adage—actions speak louder than words. I think the chancellor pierced the veil of subterfuge, located the real purpose of the picketing (to force appellees to hire union labor), and reached a just conclusion.

The record reveals to my satisfaction that appellants are not sincere when they pretend that they only wanted appellee to sign the contract agreement. If they were sincere why didn’t they accept appellee’s offer to bargain ivith them after he had finished the jobs under construction? The obvious reason why they would not wait is that the appellee would then be free to bargain— to sign or not to sign, but by not waiting they knew appellee was “over a barrel” and was not free (standing to lose money) to bargain. Once more I point to language in the statute previously mentioned:

“ . . freedom of unorganized labor to bargain individually is declared to be the public policy of the State under Amendment No. 34 of the Constitution. ’ ’

      This court is reluctant to approve the granting of temporary restraining orders in this type of case, where no notice of the application for temporary restraining order was given, and no emergency appeared from the record. In a per curiam order entered on November 20, 1964, involving a labor dispute, we said:
      “5-3524. H. T. Bryant et al v. Kelly-Nelson Constr. Co., Inc., from Independence Chy.: The restraining order having been granted without reasonable notice to appellants, and no record of the testimony having been made, said restraining order is set aside without prejudice to the right of appellee to apply to the chancery court for á restraining order after first giving reasonable notice to the appellants herein.”


author: Frank Holt, Justice.

text:
    Montague v. State
    5151
    398 S. W. 2d 524
    Opinion delivered January 31, 1966

      Harold Sharpe, for appellant.

      Bruce Bennett, Attorney General, Wm. Powell Thompson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged by information with the crime of first degree murder by means of poisoning. In finding her guilty of this alleged offense, the jury rejected her plea of self-defense and assessed her punishment at life imprisonment in the State Penitentiary. From a judgment upon this verdict the appellant brings this appeal.

For reversal appellant contends, inter alia, that the court erred in instructing the jury that: “All murder which shall bo perpetrated by means of poison shall bo doomed murder in the first degree,” and “in failing to give instructions” on the lesser offenses of homicide under the facts in this particular case.

Appellant testified that on the night in question the deceased, an acquaintance, came to the door of her home with a gun and she was afraid not to admit him; that after he got into the house he started chasing her from one room to another with the gun, running it up aud down her back and telling her he was going to shoot her when he got ready; that he hit her with his fist and committed other acts of violence; that he made indecent and unnatural proposals to her and threatened to put sa]t “in my privates and he did put some in there;” that she kept “stuff” for rats since “we have lots of rats and mice and I keep something out all the time; ’ ’ that when he asked her to get him a drink of 'water she complied.

“Q. Did you pour him a drink of water?
A. Yes, sir, I reached up on the cabinet and poured something in there, I don’t know what it was.
Q. What did you intend to do when you poured it in there ?
A. When I poured it in there I was not thinking about doing no harm to anybody, I would have poured castor oil or anything in there, or turpentine or coal oil or anything.
Q. What were you putting it in there for!
A. I thought maybe it might calm him down, he was so mad.”
He became ill and left in a taxi. The next day he died from the effects of the poison. The applicable statutes read:
"Murder is the unlawful killing of a human being, in the peace of the State, with malice aforethought, either express or implied.” Ark. Stat. Ann. §'41-2201 (Repl. 1964).
"All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.” Ark. Stat. Ann. § 41-2205.

The exact issue argued by appellant seems to be one of first impression in our state. However, we have construed these statutes previously in cases relating to murder by poison. In Allen v. State, 37 Ark. 433, we held that a person charged with murder in the first degree by poisoning may be convicted of a lower degree of criminal homicide. Again, in Smith v. State, 222 Ark. 650, 262 S. W. 2d 272, we approved the trial court instructing the jury on first and second degree murder in a poison ease and upheld a conviction for second degree murder. However, in each of those cases it was the defendant objecting to the giving of instructions on the lesser offenses contending, as does the State in the case at bar, that murder by poisoning is nothing less than first degree. We analyzed in detail the quoted statutes [§§ 41-2201 and 41-2205] in Rayburn v. State, 69 Ark. 177, 63 S. W. 2d 356, where we said:

“According to these statutes two classes of murder constitute murder in the first degree, to-wit: (1) All murder committed by any hind of wilful, deliberate, malicious and premediated killing; and (2) all murder which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary, or larceny * * * These two classes of murder in the first degree are separate and distinct. In the former a precedent intent to kill is necessary to constitute the offense, while in the latter it is not.” [Emphasis added]

See, also, Walker v. State, 239 Ark. 172, 388 S. W. 2d 13.

In 26 Am. Jur., Homicide, § 15, p. 164, we find:
“ * * * The facts, however, may be such in a particular case that a killing by poison will only be manslaughter, even though a statute provides that murder committed by means of poison shall constitute murder in the first degree.”

Certainly there are conceivable circumstances justifying and requiring that a jury be instructed as to a lower degree of homicide than first degree where death results from the use of poison. Houlton v. State, 254 Ala. 1, 48 So. 2d 7. As Chief Justice English said in Allen v. State, supra, in 1881 with regard to the statutes in question:

“Until the Legislature shall think proper to enact that upon a charge for murder perpetrated by means of poison, etc., the jury must find the accused guilty of murder in the first degree, or acquit him, we know of no remedy except that of appropriate charges to the juries.”

Thus, for more than three-quarters of a century our legislature has not deemed it proper to enact such a limitation.

We think the appellant presented sufficient evidence to require giving instructions to the jury on the lesser offenses of homicide.

The appellant also argues for reversal that the court erred in refusing to instruct the jury on the elements of felonious intent, wilfulness, and premeditation. It follows from our foregoing discussion that the appellant is correct. Furthermore, the information in the case at bar specifically alleged these elements, namely that appellant “ * * * did unlawfully and wilfully with deliberation, premeditation and malice aforethought poison and kill Marshall Hicks by administering to him poison in a glass of water served to the said Marshall Hicks with the intent to wilfully and maliciously kill” him.

The appellant also asserts for reversal that when the court instructed the jury: “Murder is the unlawful killing of a human being in the peace of the State, with malice aforethought, either express or implied” [Ark. Stat. Ann. § 41-2201], it was error for the court to refuse to instruct the jury as to the meaning of “express” and “implied” malice. We think this is a valid contention. These terms are defined by Ark. Stat. Ann. §§ 41-2203-4. In Jordon v. State, 238 Ark. 398, 382 S. W. 2d 185, we said: “No instruction was given defining self-defense or justifiable homicide, though these terms are referred to in two or three other instructions.”

The appellant asserts other reversible errors which we have carefully reviewed and find no merit in them.

For the reasons indicated the judgment is reversed and the cause remanded. Reversed and remanded.

Harris, C. J., dissents.


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    McMillan Feeder Finance Corp. v. Stephens
    5-3762
    398 S. W. 2d 535
    Opinion delivered January 31, 1966

      James II. PiTkinton, George E. Steel, Norman M. Smith, W. F. Borgmann, for appellant.

      Graves & Graves, for appellee.
   Osro Cobb, Justice.

Appellants are corporations engaged in the production of feed, chickens, and eggs with a nuniber of processing plants at points in the central portion of the United States, including such a plan at Nashville, Arkansas. Appellee, as an individual, operates the Land O’Lakes Farm at Blevins, Arkansas, a few miles removed from Nashville. The Land O’Lakes Farm is devoted primarily to procuring, producing, grading and distributing eggs to available commercial markets.

On the 14th day of May, 1964, representatives of the parties met at Nashville, Arkansas to explore a plan whereby appellee would purchase appellants’ total production of eggs. A sufficient oral understanding ivas reached that appellants thereafter delivered to appellee their egg production, which was substantial in amount.

Appellee contends that in reliance upon the said purported oral agreement at Nashville he forthwith launched an expansion project involving the expenditure of approximately $30,000 for additional machinery and in training additional employees in order to handle his increased volume of business. Appellee further contends that he made and bound himself as to delivery commitments in anticipation of and reliance upon the continuation of his new source of supply from appellants.

It was the intention of the parties to reduce their operating understanding to a written agreement, but this dragged along by correspondence from Ft. Wayne, Indiana, headquarters for appellants, and said written agreement was never accomplished. Significantly, three or four drafts of the proposed written agreement were exchanged by mail between the parties and all of such drafts of the agreement gave to appellee the right to count below the prevailing New York market and all of such drafts of the contemplated written agreement provided that the contract could not be cancelled by either party except upon 90 days written notice.

Suffice to say that for some three and one-half months after the oral understanding at Nashville, appellee received appellants’ eggs and distributed same in his expanded markets; that during this period of time a mass of paper work was exchanged between the parties as to the quantities of eggs delivered to appellee, the grades of same, prevailing prices, together with invoices and remittances, etc.

On the 3rd day of September, 1964, without written notice to appellee, appellants totally terminated its egg deliveries to appellee. On September 25, 1964, appellee filed a complaint in equity for injunctive relief, for an accounting, for specific performance of alleged provisions of an oral agreement between the parties, and in. the alternative, for damages for the alleged breach of said oral agreement, most if not all of appellee’s case for equitable relief being bottomed upon failure of appellants to give 90 days written notice of termination of the oral agreement.

Appellants answered by a general denial to the allegations of appellee’s complaint seeking dismissal of same, and entered their cross-complaint against appellee seeking judgment for sums alleged to be due and owing on eggs actually delivered prior to termination of the working agreement. It is of interest here to note that appellee during the trial conceded a larger sum due appellants than claimed by appellants, indicating that out of the hundreds of transactions between the parties their books were not in complete reconciliation as to the accounts.

The case was tried over a period of some two months and the transcript of proceedings contains some 622 pages. Appellee offered proof as to the profits he would have made had appellants delivered the eggs to him for an additional 90 days in compliance with the alleged agreement. Appellee further offered proof as to special damages which he contended he incurred when appellants’ cancellation of the working agreement without notice caught appellee with enforceable future delivery commitments against him which he could not make without procuring eggs on an emergency basis from inconvenient markets at a premium in cost and with added transportation expenses.

All of the issues joined were probed in depth during the course of the trial by able counsel representing both parties. The Chancellor required counsel to brief 'their respective contentions as to the facts and as to the law. On the 12th day of November, 1964, the Chancellor entered a decree in favor of appellee in the sum of $19,801.25 and allowed a setoff on the cross-complaint •of appellants in the sum of $16,711.91, leaving a net judgment in favor of appellee in the sum of $3,089.34. From this decree, appellants are here on appeal.

Appellants urge six points for reversal and we comment with reference to all of said points.

“Point 1. The Chancellor should have transferred the case to Circuit Court.”

The record in this case reflects that appellants filed no motion for transfer to the Circuit Court and they now insist, without citing a single case as authority in support thereof, that the Chancellor should have transferred the case on his own motion. Wo do not agree. Furthermore, it is well settled that when an Equity Court takes jurisdiction in a case of this character that it does so as to all matters of controversy and may .allow damages. Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S. W. 2d 557; Toler v. Fischer, 201 Ark. 1107, 148 S. W. 2d 159.

“Point 2. The finding and decree of the Chancellor that a valid contract existed, and that it contained a 90 day cancellation clause, are against a preponderance of the competent evidence.”

The parties obviously concluded some kind of working agreement on May 14, 1964, and their actions thereafter in performance of the working agreement, together with many writings exchanged between them, fully support the Chancellor’s finding as to the validity of an oral agreement between the parties containing a 90 day cancellation clause as alleged by appellee. We find no merit in Point 2.

“Point 3. The Chancellor’s decision is not in accord with the statutes: and this matter is governed by Ark. Stat. 85-2-101, et seq. (Uniform Commercial Code).5’

The obvious answer to this contention is that appellants interposed no such plea during the trial, and it is well settled that a defense founded upon the Statute of Frauds can not be raised for the first time on appeal. Smith v. Milam, 195 Ark. 157, 110 S. W. 2d 1062; Freer v. Less, 159 Ark. 509, 252 S. W. 354; Ark. Lumber & Contractors’ Supply Co. v. Benson, 92 Ark. 392, 123 S. W. 367.

“Point 4. That if an enforceable oral contract did. in fact exist, then and in that event, appellee has; not proven any damages by competent evidence as required by law; and that the findings by the Chancellor that appellee was damaged in any amount are against the preponderance of evidence.”

The testimony reflects that a case of eggs contains 30 dozen eggs. There was evidence introduced on behalf of appellee by knowledgeable persons that at the season of the year here involved, the profits were higher than usual and that such profits reached as high as 10 cents per dozen, or $3.00 per case. Appellant offered testimony tending to show that a profit margin of 30 to 45 cents per case after taxes was all that appellee could reasonably expect. The formula advanced by appellants as to profits after taxes is rather unique and was as indefinite as the unstated taxes to which it alludes. The Chancellor’s ultimate allowance of a profit to appellee of 3 1/6 cents per dozen eggs is much below the maximum figures appearing in testimony in the record as to such profits and is clearly supported by a preponderance of the evidence.

“Point 5. If an enforceable oral contract did exist, and if it was breached by appellants, and if appelleewas damaged in any amount, then and in such events the amount of damages.awarded to appelleeby the Chancellor are greatly excessive under the-proof, and should be reduced tó an amount which the evidence will support.”

We find no merit in this contention for the reason set.forth as to appellants’ Point 4.

Point 6. The Chancellor was in error in not awarding judgment for appellants against appellee in the sum of $16,711.92 without offset.”

Our reasoning and conclusions as to appellants’ previous points precludes the necessity of discussing this point which'we conclude is also without merit.

Finding no merit in any of the points urged by appellants the judgment of the Chancery Court is in all respects affirmed.


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    Brabham v. Brabham
    5-3756
    398 S. W. 2d 514
    Opinion delivered January 31, 1966

      James R. Hale, for appellant.

      Putman, Davis & Bassett, for appellee.

   Osro Cobb, Justice.

This, case reaches us on appeal from a decree of the Chancellor, pendente lite, awardingappellee $350 per month for the.support of herself and child during the pendency of her action for divorce. Said allowance falls within the statutory authority of Ark. Stat; Ann. § 34-1210 (Repl. 1962). Appellate review of the decree providing such ad interim support is fully authorized. See Casteel v. Casteel, 38 Ark. 477; Glenn v. Glenn, 44 Ark. 46.

The appellant argues three grounds for reversal of the decree.

“(1) Appellee failed to prove a prima facie case for divorce.
(2) Voluntary resumption of and continued engagement in cohabitation constituted con-donation of any alleged cruelty on the part of appellant.
(3) The amount awarded for temporary allowances was grossly excessive.”

Appellee testified that appellant was employed with an annual salary of $15,000 per year. She also testified in detail as to needs of herself and child which totaled $360 per month. No witness appeared to refute or deny the testimony of appellee.

As to point one, we conclude that the evidence here clearly tends to establish a present cause of action for divorce. There is no occasion on this pendente lite appeal to detail such evidence. It is well settled that for the purposes of temporary allowances no corroborating testimony is necessary, and we find that the action of the Chancellor was fully warranted. See Slocum v. Slo cum, 86 Ark. 469; 111 S. W. 806; Wood v. Wood, 140 Ark. 361, 215 S. W. 681.

As to point two, we conclude that under the proof in this case the cohabitation that occurred during the misconduct of appellant and prior to separation of the parties is not an available defense to ad interim allowances under Ark. Stat. Ann. § 34-1210 (Repl. 1962). Denison v. Denison, 189 Ark. 239, 71 S. W. 2d 1055; Bridwell v. Bridwell, 217 Ark. 514, 231 S. W. 2d 117.

“. . . (I)t is obviously a just rule that the patient endurance of continuous ill-treatment should never be allowed to weaken one’s title to relief. The endurance of cruelty and indignities in the hope of better treatment has as much the character of probation as of condonation.” 17 Am. Jur., Sec. 238, p. 422.

As to point three, we conclude, after considering the earnings of appellant and the evidence of appellee as to the- cost of maintaining herself and child, that all of the allowances made by the Chancellor are within reasonable limits and should not be disturbed.

Having found no merit in any of the points relied upon by appellant, the action of the Chancellor is in all respects affirmed.