text:
    Pierce v. Pierce.
    5-2909
    366 S. W. 2d 276
    Opinion delivered April 8, 1963.

      Felver A. Rowell, Jr., for appellant.

      Williams & Gardner, for appellee.
   Paul Ward, Associate Justice.

Prior to July 21,1957 M. H. Pierce and Mary C. Pierce owned and operated, as partners, the M. H. Pierce Lumber Company. On the date above mentioned Mary C. Pierce died testate and Joe S. Pierce (her son) was duly appointed executor of her estate. Later M. H. Pierce (after operating the lumber company for an undisclosed period of time) died testate and his estate is now being administered by his wife as executrix.

On January 24,1961 Joe S. Pierce (as executor) filed a verified claim for $7,953.14 against the M. H. Pierce estate. The claim was itemized and explained as follows:

‘ ‘ 50 per cent of the truck and car account of M. H. Pierce Lumber Co., a partnership $1,092.94
“50 per cent of the undivided timber account of M. H. Pierce Lumber Co., a partnership 6,860.20
‘ ‘ Total $7,953.14
“This balance dne the Mary C. Pierce Estate is reflected by the books of M. H. Pierce Lumber Company, a partnership, and by the books of M. H. Pierce, an individual doing business as M. H. Pierce Lumber Company, and can be substantiated from same.”

The claim was disallowed by the executrix of the M. H. Pierce estate. It was then presented to the Probate Court and was there allowed by order dated May 12,1962. From that order comes this appeal.

The only witness to testify was Joe S. Pierce, the executor of the estate of Mary C. Pierce, and the only testimony material to the issue here raised is hereafter set out.

“Q. Have you had an opportunity to examine the records of the partnership of M. H. Pieree Lumber Company?
“A. Yes, sir.
‘ ‘Q. Are they in the courtroom?
“A. Yes, sir.
# # #
“Q. Mr. Pierce, I hand you here what purports to be a ledger and ask you if you can identify it?
“ (At this time the witness is handed ledger book to examine.)
“A. That’s a ledger of M. H. Pierce individual. M. H. Pierce Lumber Company and it is individual.
“Q. Will you examine that and see if you can find anything in there indicating any indebtedness owed by M. H. Pierce to the Mary C. Pieree estate?
“MR. ROWELL: Objection your Honor. The witness has stated that’s a personal journal of Mr. M. H. Pierce, and all those entries in that book as I understand it and my knowledge of the books are made in the handwriting of M. H. Pierce individually, and he can’t testify to that.
“THE COURT: Even though they were, these are not transactions the witness has had with the deceased.”

At the top of page 90 of the ledger appears the following :

“1957 Mary C. Pierce Estate
Acct. Payable5 ’
Just beneath the above appears these two lines:
“Aug. 3 Cars and Truck $1,092.94
“Aug. 3 Band Timber 6,860.20”

Referring again to the claim

“Q. Has it been paid?
“A. No.”

The point on which appellant places most emphasis for a reversal is that the court erred in allowing the ledger to be introduced in evidence. In support appellant relies on Section 2 of the Schedule of the State Constitution which, in material parts, reads

“. . . in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward. ...”

It is first argued, and we agree, that the above statutes applies to a technical party such as an administrator. See: Smart, Administratrix, v. Owen, 208 Ark. 662, 187 S. W. 2d 312, where, in speaking of Schedule, § 2 of the Constitution, we said:

“We have held that this statute applies to those who are technically parties to the suit. ...” (Citing cases.) The technical party referred to there was the administratrix. It appears, however, to be the contention of appellant that the ledger (or the introduction of the ledger by the executor) in some way constituted a transaction with the testator — that is M. H. Pierce, deceased.

After careful consideration of this issue and of appellant’s contentions, we are forced to the conclusion that the ledger was properly introduced in evidence. We find nothing in the testimony of Joe S. Pierce (as previously set out) which refers to any transaction he had with M. H. Pierce during his lifetime. It is only testimony of such a transaction that the statute forbids. This was clearly stated in Strayhorn v. McCall, 78 Ark. 209, 95 S. W. 455 in these words: “It is only as to ‘transactions with . . .’ the deceased that the opposite party is rendered incompetent to testify.” This restrictive meaning of the words “transactions with” was impressively indicated in the early case of Giles, Adm’r. v. Wright, 26 Ark. 476. The Court there was called on to interpret the meaning of Article 7, Section 22 of the 1868 Constitution which is the same as Schedule § 2 of our present constitution. The court there said:

“It is plain that it is not the design to exclude the testimony of such parties, as to all matters in controversy, in which the testator, intestate or ward, had been interested, or in any manner connected with, but only in relation to strictly personal transactions, or such as were directly and personally with him, and where in the nature of the case, the privilege of testifying could not be reciprocal and of mutual advantage.” (Emphasis added.)

To put a more liberal interpretation on the statute involved would not seem to be in line with modern enlightened thinking. Robert A. Leflar, former Dean of the University of Arkansas School of Law, in an article published in 2 Ark- L. Rev. 26 at page 36 said:

‘ ‘ The ‘ dead man statute ’ is a relic of an almost bygone era in the law, and it may be confidently expected that it will be erased from the statutes in the not-far-distant future. In this respect it is like the disqualification of convicted felons as witnesses, which persisted in Arkansas until 1913. Under each disqualification there developed a great mass of cases, making learned distinctions and dwelling on minute differences. In each instance the courts were seeking to limit as narrowly as possible a rule which originally made some sense, but whose reasonable basis could better be cared for in modern times by letting' the jury consider the credibility of the evidence fully rather than by excluding it altogether. Both rules tended toward the concealment of the truth rather than toward its discovery.”

It is also contended by appellant that appellee failed to meet the burden of proof necessary to establish the claim. This contention is not tenable in view of the conclusion we have previously reached.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Millsap v. Williams, Judge.
    5-2970
    366 S. W. 2d 705
    Opinion delivered April 8, 1963.
    [Rehearing denied May 6, 1963.]

      Warren & Bullion, for appellant.

      Secatón & Morgan, for appellee.
   Sam Robinson, Associate Justice.

This is a prohibition procedure wherein petitioners, I. Hal Millsap, Jr. and Millsap Oil & Gas Company, a Delaware Corporation, seek a Writ of Prohibition directed to the Honorable Paul X. Williams, Chancellor of the Logan Chancery Court, to prevent the trial of an action in Logan County wherein Herman Swartz, et al, are palintiffs, and petitioners herein are named as defendants. The petition for prohibition alleges that the Chancery Court of Logan County does not have proper venue and does not have jurisdiction of the subject matter.

The Complaint alleges that the defendants induced the plaintiffs to purchase stock in the Millsap Oil & Gas Company by false, fraudulent, and untrue representations ; that the corporation is now insolvent; and the complaint asked that a receiver be appointed for the corporation and an accounting be had, and that plaintiffs recover judgment against the individual defendants.

On September 24, 1961, summons was issued to the Sheriff of Pulaski County for I. Hal Millsap, Jr., I. Hal Millsap, Sr., and for the Millsap Oil & Gas Company. The Sheriff served copies of each on Nancy J. Hall, Secretary of State. On October 3,1961, a motion was filed to quash the summons. On July 27, 1962, summons was issued to the Sheriff of Benton County for I. Hal Millsap, Jr., I. Hal Millsap, Sr., and Millsap Oil & Gas Company. The return shows service on I. Hal Millsap, Jr. as agent for the corporation. On July 30, 1962, another summons was issued for I. Hal Millsap, Jr. and the return shows he was served in Benton County.

At a hearing on the motion to quash the service of summons it developed that the corporation’s authority to do business in this state had been revoked. It was also shown that parties living in Logan County may be indebted to the corporation. The trial court overruled the motion to quash. The petition here for prohibition followed.

Respondents base their right to maintain the action in Logan County on Ark. Stats. 27-608, which provides: “An action, other than one of those mentioned in sections 84, 85, and 90 [§§ 27-601 — 27-603], against a non-resident of this State, or a foreign corporation, may be brought in any county in which there may be property of or debts owing to the. defendant. ’ ’

Since it appears that the defendant corporation is not authorized to do business in this state, the above statute is applicable if there is property of or debts owing to the corporation in Logan County. There appears to be considerable controversy as to whether such debts exist. It is a question of fact. In Twin City Lines, Inc. v. Cummings, 212 Ark. 569, 206 S. W. 2d 438, it is pointed out that where the jurisdiction of the trial court depends on a question of fact, prohibition will not lie, citing Crowe v. Futrell, 186 Ark. 926, 56 S. W. 2d 1030; Terry v. Harris, 188 Ark. 60, 64 S. W. 2d 80; LaFargue v. Waggoner, 189 Ark. 757, 75 S. W. 2d 235 Chapman & Dewey Lumber Co. v. Means, 191 Ark. 1066, 88 S. W. 2d 829.

But petitioners also contend that Ark. Stats. 27-608 is not applicable here, because the corporation has a place of business or an office in Arkansas where service of summons may be obtained against an agent of the corporation; that the applicable statute is 27-347, dealing -with service on foreign corporations. A question of fact is again involved. I. Hal Millsap, Jr. testified:

“Q. Where is the office of Millsap Oil & Gras Company ?
A: The books and stock records are kept in Rogers by the Barclay Accounting Company.
Q: Where were the books and records on September 21,1961?
A: Rogers, Arkansas.
Q: Millsap Oil & Has Company has an office at Si-loam Springs ?
A: No, Sir. Only wherever I happen to be is the office. No furniture. I answer the correspondence -through my office from Siloam Springs. ’ ’

Petitioners further contend that the Chancery Court of Logan County has no jurisdiction to appoint a receiver for the corporation, and cite Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31. But in that case the court said: ‘4 The Central company is a foreign corporation, and the courts of this State have no authority to dissolve and wind up its business; the rights of courts of equity in this State are limited to taking charge of the property within the jurisdiction of the court and enforcing the rights of creditors here. Dickey v. Southwestern Surety Ins. Co., 119 Ark. 12, 173 S. W. 398, Ann. Cas. 1917B, 634, and cases cited.” Of course, a court of equity could take charge of property in its jurisdiction only through a receiver.

I. Hal Millsap, Jr. also argues that the action can he maintained against him only in the county in which he was served with summons. In this case, the Millsaps and the corporation are made joint defendants. I. Hal Millsap, Jr. was served in Benton County. It is possible that a judgment against him wonld be good, but if an invalid judgment is rendered against him he has an adequate remedy by appeal.

The petition for prohibition is denied.


author: Jim Johnson, Associate Justice.

text:
    Jackson v. Smith, Chancellor.
    5-2939
    366 S. W. 2d 278
    Opinion delivered April 8, 1963.

      James P. Baker, Jr., for appellant.

      David Solomon, for appellee.
   Jim Johnson, Associate Justice.

This is a petition for a writ of prohibition seeking, on jurisdictional grounds, to prohibit a chancery court from trying a declaratory judgment action.

On June 19,1962, the residuary legatees under the will of Ann H. T. Coley, the Phillips National Bank and Walter L. Coley, executor of the estate of Ann H. T. Coley, filed a petition for declaratory judgment naming the petitioners, C. J. Jackson and Frank Jackson Jordan, as defendants in the Phillips Chancery Court, asking for a determination of rights as to the ownership of certain shares of capital stock in the Phillips National Bank.

The complaint states that the executor in his inventory, filed in the Phillips Probate Court, listed 80 shares of capital stock of Phillips National Bank as owned by the testatrix and as an asset of the estate; that the residuary legatees filed their exception to the inventory stating that the testatrix actually owned 200 shares of such stock; that the executor responded in Probate Court stating that Phillips National Bank has in its possession 160 shares of the stock issued in the name of the testatrix, and the executor only has constructive possession of 80 shares; that the Phillips National Bank had issued 200 shares of its capital stock to Ann H. T. Coley, which are still so recorded on its corporate books, and the bank actually has in its possession 160 of the shares; that C. J. Jackson and Frank Jackson Jordan claim some interest therein, the latter claiming by an assignment from Jackson, and that either or both of them have in their possession certificates representing 40 shares, which are registered on the corporate books in the name of Ann H. T. Coley.

In response to this petition the defendants filed a motion to dismiss alleging several jurisdictional grounds. The motion to dismiss was overruled and the defendants (petitioners herein) were ordered to file their answer by December 1, 1962. This petition for a writ of prohibition followed.

The first point relied upon by petitioners is that the chancery courts of Arkansas are without jurisdiction to hear petitions for declaratory judgment. Although it is not necessary to reach this point, since the question keeps arising we feel impelled to lay it at rest.

Petitioners contend that the chancery court is without jurisdiction to entertain declaratory judgment petitions because of an express limitation in the Constitution of 1874 providing that chancery courts shall have jurisdiction in equity matters only as then exercised by courts of equity; and that the declaratory judgment is purely the creation of statute which was not known to equity jurisdiction as it existed in 1874. • Respondent contends that the declaratory judgment act did not change or increase the jurisdiction of equity, but is purely a procedural addition to our civil procedure.

The Constitution of 1874, Article 7, § 15, states:

‘ ‘ Until the General Assembly shall deem it expedient to establish courts of chancery the circuit court shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court, in such manner as may be prescribed by law, ’ ’

In 1903 the legislature established separate chancery courts in every county of the state. Jurisdiction of these courts is stated in Ark. Stats. § 22-404 as follows:

Chancery courts shall have original jurisdiction in all matters in equity as fully as is now exercised by the several circuit courts of this state in counties where no separate chancery courts have heretofore been established. Appeals to Supreme Court may be taken from the orders, judgments and decisions of the chancery courts in the same manner as now provided by law for appeals from the circuit courts in equity cases.”

In Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, where the act establishing three year separation as a ground for divorce and abolishing recrimination as a defense thereto, was attacked as unconstitutional as diminishing equity jurisdiction, this court stated in part:

“We recognize that the jurisdiction of our courts of equity (as the jurisdiction in 1874) can neither be enlarged or restricted. But there is a distinction between (1) jurisdiction and (2) grounds for the exercise of jurisdiction.
[Quoting from Marvel v. State ex rel. Marrow, 127 Ark. 595, 193 S. W. 259, 5 A.L.R. 1458] ‘The act in question lias not conferred upon the chancery courts of this state any additional jurisdiction. It has merely prescribed a new condition upon which this ancient jurisdiction may be exercised. The act is remedial in its nature and, while the Legislature can not enlarge or restrict the jurisdiction of chancery courts, it is entirely within the province of the Legislature to prescribe the procedure for the exercise of this jurisdiction and to prescribe new conditions under which that jurisdiction may be exercised.’ ” ■

In this light, we now examine the Declaratory Judgment Act of 1953 (Ark. Stats. §§ 34-2501-34-2512). Section 1 (§ 34-2501) provides:

“Courts of record withi/n their respective jurisdictions shall have the power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.” [Emphasis ours.]

It is hardly necessary to examine further. By its own terms, “within their respective jurisdictions,” this act does not attempt to enlarge or alter the jurisdiction of any court. The chancery court clearly has jurisdiction to render declaratory judgments where the subject matter of the declaration is within equity jurisdiction, and we so find.

Whether the subject matter in the instant case is a matter for equity jurisdiction appears to be a question of fact. Upon its face the complaint does not seem to be wholly without the jurisdiction of equity. This is a question which could be tested by appeal. If the court is without jurisdiction, a proper remedy would be by motion to transfer, as provided by Ark. Stats. § 27-208 as follows :

“An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket. ’ ’

The case of Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13, is directly in point, in which it was stated:

“The writ [of prohibition] is never exercised to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. To illustrate: The circuit judge certainly had jurisdiction to pass upon the motion to transfer to equity the case pending in its court. If it erroneously transferred the case to equity, prohibition is not the remedy. It can be corrected only on appeal. ’ ’

Writ denied.


author: Frank Holt, Associate Justice.

text:
    Atkinson v. Van Echaute.
    5-2928
    366 S. W. 2d 273
    Opinion delivered April 8, 1963.

      Phillip II. Loh, for appellant.

      Charles H. Eddy and Gordon <& Gordon, for appellee.
   Frank Holt, Associate Justice.

On June 20, 1961, Julius Van Ecliaute died testate at 76 years of age. The appellee, Janie Van Echaute, was the testator’s second wife. The appellant, Emily Van Echaute Atkinson, and six other adult children by his first marriage also survive him. Appellant was nominated in the will to serve as executrix. The testator provided in his will that all of his property be sold or converted into cash as soon as possible after his death and that the cash proceeds be divided equally between his wife and his seven children. According to the inventory of his estate, the real property consisted of a forty (40) acre farm and the personal property consisted of household goods valued at $50.00.

After the will was duly probated the appellee-wiclow filed an instrument in which she elected to take against the will and asked that she be alloted her dower interest in the estate as provided by law. Later, upon her petition, the land was sold for $4,825.00 cash. Appellee then petitioned the court to allow her one-third (%) of the sale price as her dower. Upon a hearing on her petition the court found that she had elected to take against the will and have her dower awarded as provided by law and, further, “that because of the directions of the will, the court finds that the entire estate consisted of personal property at the death of Julius Van Echaute, and his widow, Janie Van Echaute, is entitled to one-third of the gross estate in fee”. The court ordered payment to her of one-third of the gross estate ($4,875.00) or $1,625.00. At a previous proceeding, upon petition of the appellee for her widow’s statutory allowances, the court awarded her $1,000.00 [Ark. Stat. 62-2501 (a)], certain items of furniture and furnishings [Ark. Stat. 62-2501 (b) ], and $250.00 as sustenance [Ark. Stat. 62-2501 (c)]. From these two separate orders appellant brings this appeal and for reversal relies on two points: (1) The court erred in the method of awarding appellee’s dower interest; and (2) the court erred in awarding $1,000.00 as a widow’s allowance. We hold that the appellant is correct in both of these contentions. Appellant takes no exception to the court’s allowance of household goods and sustenance.

POINT ONE. [Award of dower interest] Courts seek to give effect to the desires and intentions of a testator. In the case at bar the testator specifically provided in his will that upon his death his property was to be sold and converted into cash and divided equally between his wife and seven children. His widow, the appellee, renounced the will and elected to take against it. She asked that her dower interest be allotted as provided by law. This she had a right to do. Ark. Stats. 61-218 — 60-501. After her dissent from the will the realty was converted into $4,825.00 cash with her approval. She contends that by the doctrine of equitable conversion the realty consisted of personal property at the death of her husband. Thus, she asserts her claim to one-third (%) absolutely of the gross estate $4,875.00) or $1,625.00. Ark. Stat. 61-202. If the proceeds of the gross estate were divided equally in eight shares, as directed by the testator, appellee would be entitled to approximately $610.00.

Intent is the determining factor in applying the doctrine of equitable conversion. In 19 Am. Jur., p. 4, Equitable Conversion, § 4, we find the governing rule in the case at bar expressed as follows:

“The purpose of the doctrine of equitable conversion is to give effect to the intention of the testator, settlor, or contracting parties, and it will not be given an effect contrary to such intention. For example, where the will of a decedent directs the executor to sell land left by the decedent and the decedent’s widow elects to take her share under the law aside from the will, equity does not regard the land as personalty so as to allow the widow to take a distributive share.”

Further, in § 5 we find:

“The doctrine of equitable conversion cannot be invoked where the intention of the testator fails or is incapable of accomplishment by reason of illegality, lapse, or other cause, because the sole purpose of the doctrine in the case of a will is to effectuate the testator’s intention.”

In the case at bar the testator’s intention fails or cannot be accomplished because appellee disclaimed the will. In 18 C.J.S., p. 77, Conversion, § 49, the rule is further announced that where the widow “elects to take against the will, there is no conversion so as to entitle the loidow to a share in the realty as personalty.” [Emphasis added.]

In 91 A.L.R., Anno. p. 868, we find the following comment on this subject:

Where the surviving spouse renounces the will and elects to take under the intestate laws, the courts are unanimous in holding that such survivor is not entitled to the benefit of a provision in the will directing a conversion. Having elected to take against the will, the surviving spouse cannot assert any claim under the will.”

When appellee renounced her husband’s will she destroyed the will as to herself. Consequently her dower rights vested as if her husband had died intestate. Ark. Stat. 60-501. That being true, her dower is to be carved from that property which her husband possessed at his death and not from the property thereafter changed from realty to personalty. Kitchens v. Jones, 87 Ark. 502, 113 S. W. 29; Johnson v. Johnson, 92 Ark. 292, 122 S. W. 656.

Our dower statute provides that the widow shall have a vested life interest in one-third of her husband’s lands. Ark. Stat. 61-201. Since the realty was sold for $4,825.00 cash, upon the request of appellee and with the approval of the court, she is entitled to a life estate in the proceeds of this sale. The proper and approved method of computing the present value of her vested life estate is outlined in Ark. Stats. 50-701 — 706. See also, Dowell v. Dowell, 209 Ark. 175, 189 S. W. 2d 797 and Godard v. Godard, 210 Ark. 769, 197 S. W. 2d 554. Appellee was 72 years of age at the time of the sale. According to the table in Ark. Stat. 50-705, her life expectancy then was 9 years. The record does not show a determination of the prevailing rate of interest and, therefore, we must use the legal rate of six percentum (6%). Dowell v. Dowell, supra. At the appropriate place in the table we find the figure 5.9212. By this statute we now compute the present value of appellee’s life estate in this manner: $4,825.00 -f- 3 = $1,608.33; $1,608.33 X 6% = $96.50; $96.50 X 5.9212 = $571.39 which, is the present value in commutation of her income rights before deduction of her proportionate share of the cost of sale which the record does not show.

POINT TWO. [Widow’s allowance] Appellant contends that the court erroneously awarded the appellee $1,000.00 cash as a widow’s allowance pursuant to Ark. Stat. 62-2501 (a). This statute provides in pertinent part:

“In addition to * homestead and dower rights, the widow *** shall be entitled to have ** out of the property owned by the decedent at the time of his death, personal property, *** of the value of one thousand dollars ***.” [Emphasis added.]

By the plain terms of this statute the allowance to a widow can only be made from whatever personal property existed at the husband’s death. In Kitchen v. Jones, supra, this court said:

“The status of the decedent’s estate is fixed under this statute when he dies, and the alloiuance contemplated by it must be made out of the personal property as it then existed, and not from the proceeds of realty which may thereafter assume personal form.” [Emphasis added.] Also, see McLerkin v. Schilling, 192 Ark. 1083, 96 S. W. 2d 445.

It follows, from this and our discussion of point one, that appellee’s allowance under this statute is limited in this case to the $50.00 which was the total value of the testator’s personal property at his death as listed in the inventory of the estate.

The decree is reversed and remanded with directions to 'enter a decree not inconsistent with this opinion.

         By this action she waived her homestead rights.


author: Carleton Harris, Chief Justice. George Rose Smith, J.

text:
    Golden v. Orkin Exterminating Co.
    5-2955
    366 S. W. 2d 713
    Opinion delivered April 15, 1963.

      Walter G. Wright, Curtis L. Bidgway, Jr., Q. Byrum Hurst, and Wood, Ghesnutt & Smith, for appellant.

      Wootton, Land & Matthews, for appellee.
   Carleton Harris, Chief Justice.

Jimmy Lee Golden, appellant herein, on January 18,1961, signed an employment contract with appellee, Orkin Exterminating- Co. of Ark., Inc. Provisions of the contract, which are pertinent to this litigation, are as follows:

“The Company is engaged in the pest control, exterminating, fumigating- and termite control business and has built up and established a valuable and extensive trade in said territory, which consists of the following: ’ ’

(Here several cities in this state are listed, but this litigation only involves three cities, Hot Springs, Malvern and Arkadelphia.)

“The Employee hereby expressly covenants and agrees, which covenants and agreements are of the essence of this contract, that he will not, during the term of this agreement and for a period of two (2) years immediately following the termination of this agreement, for any reason whatsoever, directly or indirectly, for himself or on behalf of, or in conjunction with, any other person, persons, company, partnership or corporation:

(a) call upon any customer or customers of the Company solicited or contacted by the Employee or whose account was serviced by the Employee, pursuant to his employment hereunder, for the purpose of soliciting or selling any pest control, exterminating, fumigating or termite control service for the eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects;

(b) nor will he divert, solicit, or take away any such customer or customers of the Company or the business or patronage of any such customers of the Company for the purpose of selling a service for the eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects;

(c) nor will he call upon, divert or solicit any person, persons, company, partnership or corporation for the purpose of selling any service for the eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects anywhere within the territory stated in Paragraph 6(d);

(d) nor will he engage in the pest control, exterminating, fumigating or termite control business anywhere within the territory as specifically delineated and described as follows: Hot Springs, Arkadelphia, * * * Malvern, * *

Paragraph 7 provides,

“The Employee does expressly understand and agree that his responsibilities and obligations as to each and every covenant as set forth in Paragraph 6 above shall pertain and apply in every particular (in addition to the territory stated in Paragraph 6 above) to that territory of the Hot Springs, Arkansas office of the Company in which the Employee has worked for any period not less than ninety (90) days during any part of the twelve (12) month period next preceding the termination of this agreement, for any reason whatsoever.”

On May 31, 1962, Golden resigned as an employee of appellee company and on the following June 4, accepted employment with appellant, Arab Termite and Pest Control Company of Hot Springs, Inc. On July 13, 1962, Orkin filed this action, praying, inter alia, that Golden be enjoined from competing with appellee in its pest control and exterminating business in the city of Hot Springs, and that he be permanently enjoined from engaging in such business anywhere within the territory of Hot Springs, Arkadelphia, Malvern, and intermediate locations constituting the territory in reasonable proximity thereto for a period of two years from the date of the decree. On July 25, the complaint was amended to include Daniel C. Dykes, a former employee of appellee, who at the time of the filing of the complaint, was serving as manager for Arab.. Requests for Admissions were directed to Golden and Dykes, after which an answer was filed by all defendants. Prior employment by Orkin was admitted, but all other material allegations were denied. Further Requests for Admissions were served upon appellants, and thereafter the cause proceeded to trial. After hearing oral testimony, the court entered its decree, finding that Golden “is bound by the terms of his contract not to engage in termite or pest control work within the area described in said contract which is defined to be the cities of Hot Springs, Arkadelphia and Malvern, and within five (5) miles of the corporate limits of said cities,” and in accordance with this finding, enjoined Golden from engaging in the termite and pest control business in the area involved for a period of two years from May 31, 1962 (the date of the termination of his contract). From the decree so entered, appellants bring this appeal.

The only question presented on this appeal is the validity of the Chancellor’s action in including in the injunction the area five miles beyond the corporate limits of Hot Springs, Arkadelphia and Malvern. In other words, appellants contend that the contract only justifies an injunction to prohibit Golden from engaging in termite and pest control work within the corporate limits of these cities.

The limited attack upon the court’s decree is due to our holding in Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S. W. 2d 185, wherein we held that a certain contract between Orkin and Murrell (an employee) of the same type as the contract here involved, was valid. In that case, Murrell agreed that he would not engage in the pest control business in certain cities in this state, nor within “a 75-mile radius of each of these said cities” for a period of one year immediately following the termination of his employment. We held that the restraint imposed upon Murrell, under the circumstances, was such as would only afford a fair protection to Orkin and that the covenant was accordingly reasonable in its terms. Here, appellants point out that the 5-mile radius, included in the Chancellor’s injunction, was not embodied in the contract between the parties, and it is asserted that the Chancellor therefore erred in extending the injunction to territory beyond the city limits. We agree with appellant’s contention insofar as it relates to the cities of Malvern and Arkadelphia, but we disagree as to Hot Springs.

The proof reflects that, though appellant Golden •only worked the city limits of Arkadelphia and Malvern, he admittedly, in addition to territory within the city limits of Hot Springs, worked the Lake Hamilton and Lake Catherine areas. While there is no specific testimony that he worked these areas for a period of 90 days, Golden did testify that he had worked the Hot Springs territory for the last few months before the termination of his employment with Orkin, and it definitely appears from the actions of Golden and appellee, that as to Hot Springs, each recognized that the area for extermination solicitation and service extended beyond the city limits and included the lake area. We have held that the construction placed upon a contract between parties, as reflected by their words and acts, must be given consideration. In Hurst v. Flippin School Dist. No. 26, 228 Ark. 1151, 312 S. W. 2d 915, this court said:

“It is well settled by our decisions that, in construing a contract the meaning of which is doubtful, the construction placed thereon by the parties to it, as reflected by their words and acts, must be given consideration. See cases cited in Lutterloh v. Patterson, 211 Ark. 814, 202 S. W. 2d 767, where we approved this statement from 12 Am. Jur. 787: ‘In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is to be considered by the court and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms.’ ”

While it is true that the words “5-mile radius” do not appear in the contract, the Chancellor evidently used this figure with the view of covering that territory wherein Golden had worked, serviced, and solicited business during his employment with Orkin. Since it is admitted that the lake areas were solicited during that period, we think the extension of the injunction to the 5-mile radius beyond the city limits (of Hot Springs) was reasonable.

In accordance with the views herein expressed, we are of the opinion that the injunction entered by the Garland Chancery Court was too broad in its terms in enjoining Appellant Golden from engaging in termite or pest control work within a 5-mile radius of the corporate limits of the cities of Malvern and Arkadelphia. As to these cities, the injunction should have been limited to that territory solely within the corporate limits. With this modification, the decree is remanded to the Garland Chancery Court with directions to enter a decree not inconsistent with this opinion.

George Rose Smith and Johnson, JJ., dissent.

George Rose Smith, J.

(dissenting). I think the decree should be further modified by excluding the area lying within a five-mile radius of the city limits of Hot Springs.

In view of the established breach of contract the appellee was entitled to injunctive relief with reference to the area within the city of Hot Springs. That phase of the case is not in issue upon this appeal. But the only way in which the appellee could obtain relief with respect to the area contiguous to the city limits was by proving, under Paragraph 7 of the contract, that Golden had worked in that suburban area for not less than ninety days during the last year of the contract.

In my opinion the appellee did not meet this burden of proof. In fact, the complaint did not even allege such a cause of action. The complaint did quote Paragraph 6 of the contract, which embraced the territory within the city limits, but the complaint did not even mention Paragraph 7 (except that a copy of the contract was attached as an exhibit). As far as I can discover, the exceptional ninety-day provision by which the ambit of the contract could be extended was not mentioned anywhere in this case until the appellee’s brief was filed.

There was no testimony that Golden worked for ninety days in this suburban area. In fact, the majority’s holding in this respect is really based upon a single question and answer in the course of Golden’s testimony:

“Q. But for the last few months [before the termination of the contract] you had worked in the Hot Springs territory?
“A. Right.”

The plaintiff unquestionably had the burden of proving that Golden had worked within the suburban Hot Springs area for the minimum of ninety days required by the contract. Even if that fact had been alleged in the complaint, and it was not, the proof would still be-insufficient to establish the allegation. In view of the fact that the burden of proof was on the appellee, I cannot say that testimony that Golden had worked for a few months in the Hot Springs territory (which under the contract included the twenty cities listed in Paragraph 6) amounted to proof that he had worked for at least ninety days within every part of the area lying within a five-mile radius of the city limits.

The appellant concedes the correctness of the greater part of the decree; he appeals only from that part of the order including territory contiguous to Arkadelphia, Malvern, and Hot Springs. In view of the fact that Hot Springs is by far the largest of these three cities, as well as being the appellant’s home, it is fair to suppose that the real issue on this appeal is the Hot Springs suburban area. Thus the appellant is really losing his appeal; I think he should win it.

Johnson, J., joins in this dissent.

       Other issues raised in the complaint, including damages sought against Dykes and Arab Termite and Pest Control Co. of Hot Springs, were reserved for later determination.

       No contention is made in appellant’s brief that he did not work in this area for 90 days.


author: Ed. F. McFaddin, Associate Justice.

text:
    Pults v. Pults.
    5-2985
    367 S. W. 2d 120
    Opinion delivered April 15, 1963.
    [Rehearing denied May 20, 1963.]

      James E. Evans and John H. Joyce, for appellant.

      Wade & McAllister, for appellee.
   Ed. F. McFaddin, Associate Justice.

At the close of appellant’s case, the Chancery Court sustained the appellee’s written demurrer to the evidence; and the issue on this appeal is whether the Court was correct in its ruling. This requires an application of our holding-in the case of Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and the subsequent cases involving the same question.

On December 16, 1961, appellee, Mrs. Alice Pults, received a decree of divorce from appellant, George Pults. A property settlement agreement was incorporated in the decree which provided, inter alia, that Mrs. Pults would have the care and custody of the two minor sons of the parties during the entire period of minority. One of the boys was then fourteen, and the other was nine. The decree also provided that Mr. Pults would pay Mrs. Pults $200.00 per month for the support, maintenance, and education of the two boys. There was also a property settlement between Mr. and Mrs. Pults, which need not be detailed.

As stated, this decree was on December 16, 1961; and fifteen days later Mr. Pults contracted another marriage. Then, on July 24, 1962, Mr. Pults filed the present petition for reduction of the monthly payments for his two sons, claiming that the expenses caused by his subsequent marriage, plus his decreased income, made it difficult, if not impossible, for him to pay the $200.00 per month for the support of his own sons. He wanted to pay only $100.00 per month. The case came to trial; and after Mr. Pults had offered his desired evidence, the Chancellor sustained Mrs. Pults’ written demurrer to the evidence. We copy the Chancellor’s opinion:

“The question now presented on demurrer to petitioner’s evidence, is whether there has been such a material change in circumstances relative to Mr. Pults since the entry of the decree on December 16, 1961 as would entitle him to, and justify the Court in granting, a modification of the money payments presently required of him. On such demurrer the testimony offered must be viewed, in the light most favorable to Mr. Pults.
“Under Ms testimony, the reason he seeks a change, and the material difference that he alleges has occurred, is that he has suffered a reduction in income so that he is no longer able to meet the scale of payments contained in the property settlement and the decree. Now, actually, he doesn’t plead this at all. He pleads that the change in circumstances is tha/ he has remarried, and that his expenses have increased. The matter of his income being reduced was brought out by the proof, but not being objected, the Court maj treat the pleadings as amended to conform to the proof, where offered without objection. So, the status of the matter now is that he relies upon the fact that he has remarried since the entry of the decree of divorce, which is a change of circumstances, and that Ms income has been reduced by about one-half since the decree of divorce. Now, accepting all these tMngs as true, the question is, on this demurrer: does this make a case for the reduction of the money payments? Are these such material changes as would justify a modification in the support order?
“In the opinion of the Court neither of these events, under the state of the proof here, is sufficient to justify a change in the decree. In the first place, the proof does not show that he has suffered a 50% redijction in income or that he has suffered any reduction in income. The proof shows that as of the calendar year 1960, and maybe for some or a part of the calendar year 1961, his income from his employment was $12,000.00 a year. It shows that as of and prior to the entry of the decree of divorce, his salary was $125.00 a week, no bonuses, no dividends, no stock holdings. It also shows that between some time in August of ’61 and the entry of the decree in December, he sold his stock for an ultimate purchase price of $30,000.00. The testimony shows that his salary income thus far in 1962 is $125.00 a week, exactly what it was when this divorce was granted and for some time prior thereto. He owned some lots in Springdale which he has since sold for $3,000.00. That is merely a substitution in the form of the asset, the exchange of land for money. The same is true as to his former stock ownership. It doesn’t appear to me that there has been any material change at all, either on the score of assets or time wages.
“Second, as to the remarriage: Under the proof he was married exactly 15 days after the divorce, which is of no consequence except to this extent: there is certainly no one in a proper position to criticize the fact of his right to remarry; but when he did so with the knowledge and memory of the property settlement and the decree only 15 days old in his mind, by no stretch of reasonable imagination can it be suggested that he didn’t know what he was doing. He knew what his obligations were under the property settlement and the decree. These were, so far as can be determined, fully and freely and openly entered into and were mutually binding. To say now that he is in a “bind” because he has remafried and has incurred some new expenses, or at least a recurrence of former expenses that he is required to meet as a married person, and that by reason thereof he is not now able to meet the decretal obligations, is to pose the analogy of a drunk man pleading innocent to a charge of speeding because he was so drunk he did not know what he was doing, which, of course, as you know, is no defense at all.
“It’s all well and good to show a change of circumstances, but when those changes are wrought by the affirmative and knowledgeable action of the person himself, then he has no standing to come into a court of equity and ask relief from the burden that he voluntarily has assumed. In the opinion of the Court, petitioner has not made a prima facie case, and the demurrer should be, and is, sustained. The petition is dismissed at the cost of the petitioner.”

As sympathetic as we are with the problem confronting the Chancellor and his evident recollections of the divorce case so recently before him, we nevertheless conclude that the evidence offered by Mr. Pults required that it be weighed in the scales of reasonableness, and its force tested in the balances of equity and justice. We think the excellent opinion of the Chancellor clearly demonstrates that there was such a weighing and test-tug, and such weighing and testing are not to be done in ruling on a demurrer to the evidence. The demurrer should have been overruled, so the Court could do the required weighing and testing.

It is true that Mr. Pults was drawing an annual salary of only $6,000.00 a year when the divorce decree was granted, as compared with the salary of $12,000.00 a year before the divorce suit was instituted; so Mr. Pults made no case on decreased earning capacity; but he did show expenses which he detailed amounting to $7,107.23 a year. Some of these expenses were for interest on the mortgage that he put on his house to make the property settlement with Mrs. Alice Pults; some of the expenses were for repairs and upkeep of the house. While remarriage is not in itself a sufficient change in circumstances to justify in the eyes of the law the reduction of payments by a father for the upkeep of his own children, still the remarriage, coupled with other circumstances, requires a court to weigh the facts in the scales and to test them in the balance of justice and equity. It is this “weighing” that is entirely absent when a chancellor sustains a written demurrer to the evidence at the close of the petitioner’s case. If the Chancellor had overruled the demurrer and the respondent had introduced no evidence and the Chancellor had then on final decision reached the same conclusion, we would have affirmed the decree because there would have been a weighing of the evidence, which is not permitted in passing on a demurrer.

So we must reverse the decree and remand the cause for further proceedings not inconsistent with this opinion; but since this is an equity case we adjudge all the costs against the appellant.


author: George Rose Smith, J.

text:
    Walton v. State.
    5001
    366 S. W. 2d 707
    Opinion delivered April 15, 1963.

      Johnson é Johnson and John G, Finley, for appellant.

      Bruce Bennett, Attorney General, by Leslie Evitts, Chief Assistant Attorney General, for appellee.
   George Rose Smith, J.

The appellant was charged with first degree murder. At the first trial he pleaded guilty and was sentenced to death. We reversed that conviction for an error in the instructions to the jury. Walton v. State, 232 Ark. 86, 334 S. W. 2d 657. At the second trial, after the plea had been changed to not guilty, the appellant was again convicted and sentenced to death. We affirmed that conviction. Walton v. State, 233 Ark. 999, 350 S. W. 2d 302.

The Supreme Court of the United States, reviewing our second decision by certiorari, vacated our judgment and remanded the case for further consideration in the light of Hamilton v. Alabama, 368 U. S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157, which was decided after we had affirmed the case upon the second appeal. Walton v. Arkansas, 371 U. S. 28, 9 L. Ed. 2d 9, 83 S. Ct. 9.

In the Hamilton case the court reversed a capital conviction on the ground that the accused did not have the assistance of counsel at the arraignment. When the ease at bar was returned to us'for reconsideration the record did not completely reflect everything that occurred at Walton’s arraignment on June 22,1959. We therefore reinvested the trial court with jurisdiction, so that the deficiency might be supplied. We now have the complete record.

The homicide occurred during the night of June 19, 1959. Walton was arrested the next morning and signed a written confession on June 21. The information, charging first degree murder, was filed on June 22. On that morning Walton was brought into the courtroom at the county seat. The court reporter’s record of the proceedings recites the presence of the circuit judge, the prosecuting attorney, the circuit clerk, the accused, the sheriff, and a member of the State Police Department.

The information and the warrant of arrest were read to the accused. In reply to questions by the court Walton stated that he was not financially able to employ counsel. The court indicated that he would appoint attorneys for Walton and would not permit him to plead to the charge until he had talked with his counsel. The record then continues:

“The Court: (To Prosecuting Attorney) Do you have any questions to ask the defendant, Mr. Spencer?
“Mr. Spencer: Yes. (To defendant) Did you make a statement to the State Police at Texarkana?
“The Defendant: I made one to Mr. Thrash yesterday.
‘ ‘ Mr. Spencer: Is this your signature • — • ‘ Edward Walton, Jr.’?
“The Defendant: Yes, sir.
“Mr. Spencer: I want to ask you, did you make that statement freely and voluntarily?
“The Defendant: Yes, sir.
“Mr. Spencer: You weren’t threatened or promised anything to make the statement, were you?
“The Defendant: No, sir, they were very nice.
“Mr. Spencer: It’s your own free and voluntary statement?
“The Defendant: Yes, sir.
“Mr. Spencer: I would like to introduce it as Ex-bihit No. 1 to his arraignment.
“The Court: I will leave it in the custody of the court reporter, with your permission, and it will be a judicial confession. (To defendant) This is a statement you made to the officers yesterday?
“The Defendant: Yes.
“The Court: Is it a true confession—
“The Defendant: Yes, sir.
“The Court: —given of your own free will and accord ?
“The Defendant: Yes, sir.
“The Court: No attempt was made to influence you to make it? They didn’t beg you to make it, or promise you any reward if you would make the statement, did they?
“The Defendant: No, sir.
“The Court: It was a free and voluntary statement?
“The Defendant: Yes, sir.
“The Court: And it is a correct statement?
“The Defendant: Yes, sir.”

At the second trial, now under review, the court reporter was called as a witness for the State and was permitted to read to the jury the questions and answers that we have just quoted. Counsel for the accused objected on the ground, among others, that the testimony violated the rights of the defendant under the Fourteenth Amendment to the Constitution of the United States. The specific point now before us was not argued in the original briefs, as Hamilton v. Alabama had not yet been decided, but under our practice in capital cases a timely objection in the trial court is all that is required to preserve a point for review. Rorie v. State, 215 Ark. 282, 220 S. W. 2d 421.

We have concluded that the judgment must be reversed. In Hamilton v. Alabama the court reasoned that Hamilton was entitled to counsel at the arraignment, because under the law of Alabama substantial rights are lost if not asserted at that time. Hence the question here is whether Walton suffered the loss of a substantial right by not having an attorney at the proceeding on June 22.

This question must be answered in the affirmative. The circuit judge was careful not to permit Walton to plead to the information until he had conferred with Ms attorneys, but the admissions that were elicited by the prosecuting attorney may well have been as damaging as a plea of guilty. It cannot be doubted that Walton’s insistence to the trial jury that his written confession had been involuntary was seriously weakened by the narrative of what happened in the courtroom on the morning of June 22. If Walton had been represented by counsel, as was his right after the case reached the courts, his attorney would certainly have warned him that he was not compelled to answer any questions with reference to the voluntary character of his confession. We are fully convinced that, in the light of the decision in Hamilton v. Alabama, the court reporter’s testimony was inadmissible and prejudicial, entitling the appellant to a new trial.

Reversed.

Hoi/f, J., disqualified,


author: Paul Ward, Associate Justice.

text:
    Beyer v. Pope.
    5-2949
    366 S. W. 2d 716
    Opinion delivered April 15, 1963.

      Tommy H. Russell and Ruby E. Hurley, for appellant.

      Holt, Park & Holt, for appellee.
   Paul Ward, Associate Justice.

Appellant, Bettye Jo Beyer, and appellee, Eva Victoria Pope, assert rival claims to approximately $9,000 on deposit with the First Federal Savings and Loan Association of Little Rock and approximately $4,500 on deposit with the Peoples Bank and Trust Company of Van Burén. Appellant is the daughter and appellee is the widow of Elmer Pope who died March 9, 1962. Although the building and loan association and the hank were made parties, neither has any further interest in this litigation, so we will hereafter refer to the daughter and widow as appellant and appellee respectively, and we will refer to the building and loan association as association and to the Van Burén hank as bank.

The facts and circumstances leading up to this appeal are hereafter briefly set out in approximately chronological order.

For some time prior to February 14, 1961 Elmer Pope and appellee lived together as husband and wife. On said date Pope filed a suit against appellee for a divorce. At that time Pope had on deposit (in his own name) the sums previously mentioned. No steps were taken in the suit until January 18, 1962 when a decree of divorce was entered in favor of Pope. A detailed property settlement was embodied in the decree but it has no bearing on the issues here presented.

On February 8, 1962 Pope (while in the hospital) executed a power of attorney authorizing Buby E. Hurley to “transfer and change” the account in the association and in the bank “to read as follows: Elmer Pope and Bettye Jo Beyer (with full right of survivorship)”. In a few days the said accounts were changed in substantial compliance with the terms of the power of attorney.

On February 9, 1962 the divorce decree was annulled, and five days later Pope executed a will leaving all his property to appellee. On the 19th of the same month Pope revoked the power of attorney, and promptly notified the association and the bank to change the accounts back to his name as they were originally.

George Tyler, the assistant secretary of the association, testified in substance: 1 have a record of Pope’s account: On January 16, 1962 it was in the name of Elmer Pope; on February 9, 1962 it was changed to Elmer Pope and Mrs. Bettye Jo Beyer with right of survivor-ship. The account was later changed to the name of ‘ ‘ Elmer Pope”. It remained that way until Pope’s death on March 9, 1962. J. J. Izard, president of the bank, testified by deposition: A savings account was opened February 1, 1961 in the sum of $9,000 in the name of Elmer Pope: A power of attorney came to me to change the account to make it “or Bettye Jo Beyer or survivor”: the account was changed to read “Elmer Pope and Bettye Jo Beyer” — the amount being $4,467.77; later I received a Bevocation of Power of Attorney signed by Elmer Pope, dated February 23, 1962; on February 23, 1962 I put the account back in the name of “Elmer Pope”, and wrote Mr. Pope the next day that the change had been made. Appellant, who lives in Pennsylvania, received from her attorneys herein the association book and signature cards; she signed the cards and returned them and the book to the attorneys; she never signed anything to release the money, and thought it took both signatures (her’s and her father’s) to release the money.

After Pope’s death, appellant filed a complaint against the association and the bank to have them pay the money to her as the survivor named in the joint accounts, and to enjoin them from paying the money to anyone else. Thereupon appellee intervened, claiming the said funds as the sole beneficiary under the will of her deceased husband. The trial court entered a decree in favor of appellee, and this appeal follows.

The pivotal issue is whether, under the above set of facts, Pope had the right to change the joint accounts to his own name? Or, to state the same issue another way, did appellant have a vested interest in the joint accounts? It is our conclusion, after careful consideration of the facts and the applicable law, appellant had no vested right in the accounts and that Pope did have a right to change them back to his own name. It is not disputed that if the money belonged to Pope at his death it passed to appellee under his will.

As pertains to the funds in the association the issue here, we think, is controlled by the decision in the ease of Davis v. Jackson, 232 Ark. 953, 341 S. W. 2d 762. There, Don L. Davis, a widower deposited $10,000 in a building and loan association in the name of “Don L. Davis or Patricia Jackson” (a granddaughter — appellee). Later he married appellant — Davis, and then had the association change the account to include the name of appellant instead of the name of appellee. Upon the death of Davis both parties claimed the money. The trial court held the granddaughter could recover because a joint tenancy had been created which could not be revoked at the pleasure of either party (to the account) alone. In reversing the trial court we made certain announcements which, we think, call for an affirmance of the case under consideration (as it pertains to the association account). In the cited case we held that Ark. Stats. § 67-820 (b) was applicable, and that it gave the depositor the right to change (during his lifetime) a joint account. We also called attention to Ferrell, Ad ministratrix v. Holland, 205 Ark. 523, 169 S. W. 2d 643, noting that a different result was reached there because the account had not been changed before the depositor died. Finally, in the cited case we find this conclusive statement: “Appellee takes the view that one Mrs. Jackson’s name was placed on the certificate, she had a vested interest in the property. This position cannot be maintained, for the statute itself precludes such a result.”

Based on the decision in the Davis case we must conclude therefore that appellant had no vested right in the account to which her name was added, and that Elmer Pope had the right to have the account placed back in his own name. It is apparent that the reasoning in the Davis case would have been the same if the word “and” instead of “or” had connected the names of the two payees.

Likewise, and for much the same reasons, we hold that the trial court was correct in awarding the bank deposit to appellee. Ark. Stats. § 67-521 reads, in pertinent part as follows:

“"When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the person so named, and may be paid to either during the lifetime of both. ...” (Emphasis added.)

If, therefore, Pope had the right to draw out the money in the bank (in the name of him and appellant) then it can hardly be contended he had no right to change the account back to his own name. It is not disputed that he did make such a change here during his lifetime. This question of a right to change the account did not arise in the case of Park v. McClemens, Executor, 231 Ark. 983, 334 S. W. 2d 709, relied on to some extent by appellant. In that case the depositor made no attempt, during her lifetime, to change the account to her own name.

Since, as we have above concluded, Pope had a right, during his lifetime, to change the joint accounts, it must follow that he did not irrevocably give the money (accounts) to appellant.

This is true, because it is essential to a gift inter vivos that the giver part with all control over the gift.

Appellant contends that the trial court erred in permitting appellee to testify to certain conversations with her husband, in violation of the so-called deadman’s statute. We need not discuss this contention since, in the opinion, we have not considered any of this testimony.

Affirmed.

Johnson, J., dissents.


text:
    Black v. Ark. Power & Light Co.
    5-2956
    366 S. W. 2d 899
    Opinion delivered April 15, 1963.
    [Rehearing denied May 13, 1963.]

      Coleman, Gantt & Ramsay, for appellant.

      George E. Pike and House, Holmes, Butler & Jewell, for appellee.
   Sam Robinson, Associate Justice.

The appellee, Arkansas Power & Light Company, is a corporation organized under the laws of this State for the purpose of generating, transmitting, and supplying electricity for pub-lie use under the authority of Ark. Stats. 35-301 — 16. The power company filed this suit to condemn a right of way for a high voltage transmission line across lands owned by appellant, Hattie Boone Black. The Complaint was filed in the Circuit Court of Arkansas County; on defendant’s motion, the cause was transferred to equity. The Complaint was filed December 16, 1959; on the same day the Court issued an order authorizing the power company to go on the land and construct the line upon the making of a bond as directed by the Court. The bond was made, the power company proceeded to construct the line, and at the time the cause was heard in Chancery Court, the line was in use.

There was a taking by the power company of a right of way 125 feet wide near the southern boundary line of appellant’s property in two sections. There is a fraction over 26 acres in the right of way. The Chancellor found that the land taken for the right of way was worth $250.00 per acre, or a total of $6,632.50, and that appellant’s land adjacent to the right of way was damaged in the sum of $2,123.50. A judgment was rendered for the total sum of $8,756.00 and interest.

Appellant’s principal contentions on appeal are that the power company did not have the right to take the right of way, and that inadequate damages were awarded.

Appellant first argues that the trial court erred in holding that after the power company introduced its charter and the statutes were considered, the burden was on appellant to show an improper use of the power to condemn. Conceding without deciding that the trial court was in error on this point, it does not follow that the ruling was in any manner prejudicial to appellant, because the power company proceeded to introduce sufficient evidence to show that it was necessary to construct the transmission line to properly supply electricity to the public.

Appellant maintains that the preponderance of the evidence does not show that the transmission line was needed by the Arkansas Power & Light Company to serve its customers in Arkansas. The line is the main transmission facility from the power company’s generating plant at Helena to its Woodward Distribution Station at Pine Bluff. Appellee’s entire distribution system is connected with the Woodward Station. The mere fact that the power company built at Helena a generating plant at the cost of millions of dollars, and a 230,000 kilowatt transmission line from Helena to Pine Bluff at the cost of more millions of dollars, is pretty strong evidence that the line was needed in Arkansas for Arkansas customers, and there is no substantial evidence in the record tending to prove the contrary. In addition, we quote from appellant’s brief an abstract of the testimony of Mr. Carroll Walsh, chief engineer of the power company, to the effect that, in his opinion, the line was necessary: “. . . that it was necessary to add some additional generation to their system to carry the loads expected for 1961; that the generation was, as an engineering decision, located at Helena; that a part of the generation was needed in East Arkansas, but a big part of it was needed at Pine Bluff, where they had large loads and no generation plant, the nearest one being at Little Bock, so it was necessary to build a transmission line to carry a heavy block of power from the new plant at Helena to take care of the loads in the Pine Bluff area.”

Appellant says that the effect of this evidence was largely destroyed by cross-examination, but we do not agree. True, it appears that on some occasions the power company sends into other states, electricity generated at Helena and transmitted over the line crossing appellant’s property, but this is done pursuant to an agreement with other power companies whereby appellee is enabled to bring into this state, when the occasion demands, for the use of its Arkansas customers, electricity generated elsewhere. The effect of this arrangement is beneficial to the people of this state, as it assures a constant and sufficient supply of electricity at all times.

Appellant stoutly argues that the compensation awarded for the 26 and a fraction acres condemned and for damages to the remaining property is inadequate. The Chancellor made a finding that the land taken for the right of way was worth $250.00 per acre, and that damages to the remaining land amounted to $2,123.50. Of course, the amount of damages sustained is a question of fact, and we will not reverse the Chancellor on a fact question unless the decree in that respect is against the preponderance of the evidence. Here, we do not feel that the Chancellor’s finding of damages is against the weight of the evidence. Appellant and several of her witnesses testified that the land taken was worth more than $250.00 per acre, and she and some of her witnesses testified that all of the farm land, consisting of more than 1,200 acres, had been damaged to the extent of $50 or $60 per acre. On the other hand, several qualified witnesses appeared in behalf of the power company and testified that the land taken for the right of way was worth $250.00 per acre or less, and that there was no damage to the land outside of the right of way.

The power line crosses appellant’s property within 110 to 125 feet of its southern boundary line. Appellant owns only about 13 acres south of the right of way of the power line. It appears that at the time the line was constructed, appellant had an oat crop on the property. The Chancellor made an award in the sum of $2,123.50 for damages to the land outside of the right of way. The evidence would sustain a finding that there was no damage to appellant’s property north of the right of way. If $1,000.00 was allowed’ for damage to the oats, there remains almost $90.00 per acre for damages to the 13 acres. Moreover, appellant can continue to cultivate the 125 foot strip in the right of way, notwithstanding she has been paid the full fee value, provided, of course, that she does not interfere with the transmission facilities. She may not be able to fertilize the 13 acres as well as formerly, because now it may be difficult to use an airplane for that purpose; but even so, we do not find that the amount of damages awarded by the Chancellor is against a preponderance of the evidence.

Affirmed.


text:
    Mack v. Cole.
    5-2873
    366 S. W. 2d 719
    Opinion delivered April 15, 1963.

      Fred A. Newth, Jr., for appellant.

      Howell, Price S Worsham, for appellee.
   Jim Johnson, Associate Justice.

Appellant Bessie Mack sued her sister, appellee Sadie Cole, to set aside a deed. Appellant alleged that appellee had knowingly made false representations to her and her late husband, that they relied upon the representations and executed an absolute warranty deed conveying their home to appellee. Appellant further alleged that the parties had in fact agreed that appellant should retain a life estate in the property. At the close of appellant’s testimony, the Chancellor sustained appellee’s demurrer to the evidence and dismissed the complaint. An appeal was perfected by appellant and this court in Mack v. Cole, 233 Ark. 234, 343 S. W. 2d 791, held that the Chancellor had erred in sustaining the demurrer to the evidence and remanded the case for further proceedings.

Thereafter appellant amended her complaint seeking judgment for mortgage payments made by appellant, to which appellee answered that appellant had agreed to make the mortgage payments as rent for the privilege of living in the house. When the case proceeded to trial again, the parties stipulated that all of the testimony in the original proceedings should be made a part of the record, and then introduced further testimony. Upon conclusion the court ruled in favor of appellee and dismissed appellant’s complaint. This appeal ensued.

The first point urged for reversal is that the court erred in dismissing appellant’s complaint. The question involved here is whether, in the light of all the evidence, appellant sustained the burden of proof to establish by clear and convincing evidence that the deed executed by appellant and her late husband was induced by fraud and misrepresentations on the part of appellee and therefore should be set aside and cancelled.

We have been favored with excellent briefs and we particularly noted appellant’s fine abstract of the testimony adduced at both trials.

The following facts are generally undisputed: appellant and her late husband agreed to sell their home to appellee for $4,000 and assumption of the outstanding mortgage. They executed a warranty deed which retained a life estate and mailed the deed to appellee, which was rejected by her. Thereafter a quitclaim deed was sent which also retained a life estate, and which was also rejected by appellee. Later appellee came to Little Rock and had Beach Abstract Company prepare a warranty deed. At closing appellant and her husband executed that deed and received approximately $4,000.00. Appellant continued to live on the property, collecting rent from various tenants, and paying the mortgage payments and taxes. From there on, the testimony is in hopeless conflict. Appellant and four of her witnesses testified that appellee at one time or another stated that appellant had a life estate in the property, whereas appellee and five witnesses testified to statements of appellant diametrically opposed to her allegations.

It is well established by a host of cases rendered by this court that the quantum of proof necessary to set aside a deed must rise above a preponderance of the testimony; it must be clear, cogent and convincing. Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253; Sandefer v. Sandefer, 219 Ark. 943, 245 S. W. 2d 568; Aber deen Oil Co. v. Goucher, 235 Ark. 787, 362 S. W. 2d 20. From all the evidence adduced in this case, we on trial de novo, cannot say that the Chancellor, who heard and observed the witnesses, was in error in concluding that appellant failed to produce the quantum of proof required to set aside the deed.

Appellant’s second point urged for reversal is that the court erred in failing to award judgment to appellant for payments she paid on the mortgage.

It is axiomatic that appellant, or any other tenant, can be forced to pay rent, or move, by an owner of rented property. In the instant case appellant’s own witness, the escrow officer of the closing department of Beach Abstract Company, testified that when appellee came in to arrange the closing, she stated: “I am buying this property from my sister. I live in Chicago. She is going to continue to live there. She is going to collect the rent and all I am going to do is let her make the payments to the Guardian Company [mortgage holder]”. Appellant’s testimony shows that after the closing appellant did live on the property, did collect rent of about $175 per month, and did make the mortgage payments of $40.60 a month to the Guardian Company. From the testimony and the subsequent conduct of the parties, the Chancellor could reasonably find that this was the agreed rental between the parties, and no one has contended that appellant is entitled to a refund of rent. We find no error.

Affirmed.


text:
    Shelton v. Daniel.
    5-2933
    366 S. W. 2d 709
    Opinion delivered April 15, 1963.

      Hall, Purcell & Boswell, for appellant.

      Fred E.~ Brmer, for appellee.
   Frank Holt, Associate Justice.

This is an action to quiet and confirm title to one hundred and twenty (120) acres of land. The appellees are Rachel Daniel, widow of J. W. Daniel, and their adult children, Doyle Daniel, Dorman Daniel, Guinn Daniel and Clint Daniel. The appellant is Liller Mae Shelton, widow of Robert Shelton. The appellees assert in their complaint that their ownership of this farm is based upon (1) a lost and unrecorded deed made in 1920 by Robert Shelton conveying the property to J. W. Daniel and R. W. Daniel, a partnership; (2) an order of the Saline Chancery Court on September 16, 1927; and (3) that appellant’s title claim is barred by laches and estoppel. Appellant filed her answer and denied the validity of each of appellees’ claims. Appellant contends she is the rightful owner because (1) she is the surviving widow of the record holder of the legal title, Robert Shelton, who died intestate in 1920 and (2) she ho>' % quitclaim deed dated in 1959 from her children and heirs of her deceased husband. The court vested title in appellees and therefrom comes this appeal.

Thus, the evidence on these rival claims necessarily covers a span of approximately forty (40) years. For several years before Robert Shelton died intestate in 1920 he had an open account with J. W. Daniel and R. W. Daniel who owned, as a partnership, a general mercantile store. It is undisputed that Shelton owed the store an annual balance which in 1918 amounted to $229.76. Mrs. Rachel Daniel testified that Mr. Shelton gave her husband, J. W. Daniel, an instrument in 1918 or 1919 which she understood was a deed based on their various business transactions. She claimed that the instrument or deed was entrusted to her lawyer, now deceased. No such instrument or deed is recorded or found. The partnership ledger on Shelton’s account reflects the following entry dated January 20, 1919: “By payment by place even. ’ ’ J. W. Daniel died intestate in 1926 and on September 16, 1927, the chancery court decreed a partition of the partnership property and therefrom awarded the lands in question to appellees. The appellant was not made a party to this proceeding. It is undisputed that since about 1918 J. ~W. Daniel, or his widow and heirs, the appellees, have paid the taxes on this property except in 1959 when appellant’s daughter paid them as delinquent taxes. The appellees have never lived on the property. However, in addition to the payment of taxes for approximately forty (40) years, they have exercised other acts of ownership and control such as leasing the property to numerous tenants for farming purposes, building and maintaining fences thereon, the rebuilding of a dwelling which had burned; using the lands for pasture and raising cattle; the planting of some 2,000 pine seedling trees on two different occasions; the cutting of timber and otherwise general management of the property. The testimony of other witnesses tends to corroborate appellees.

Appellant admits that her husband, Robert Shelton, had business transactions with J. W. Daniel and, according to her and her daughter’s testimony, Shelton gave Daniel a mortgage on the farm about 1919, which mortgage was transferred from his mules to the farm so he could sell the mules. There is no record evidence of such mortgage. Mrs. Shelton denied ever signing any instrument in favor of the Daniels. She testified she was never financially able to pay the mortgage she thought existed. There is no evidence that appellant or anyone else ever made any effort to determine from the appellees or elsewhere the existence, amount, or terms of such a mortgage. Her daughter testified that she had consulted several lawyers before 1949 about their legal rights and for the past 15 years she and other members of the family, living in close proximity, had frequently observed the farm with the belief appellees “were entitled to use it until the mortgage was paid.” According to the evidence appellees’ right of ownership of the land was challenged in 1959. This consisted of two acts: Appellant’s daughter paid the delinquent taxes and appellant filed a quitclaim deed to the property, which deed was executed to her by the heirs of Robert Shelton, her deceased husband.

The decree recites that the court:

“ * * * finds the lands in question * * * were owned by Robert Shelton and that J. W. Daniel purchased said lands from Robert Shelton on or about the year 1918. That a deed was never delivered to J. W. Daniel but that the heirs of Robert Shelton are now barred by laches and estopped from claiming any interest in said lands # * *

Appellant urges for reversal that the doctrine of laches does not apply against those seeking to enforce legal title. We think that the recent case of Mize v. Mize, opinion dated February 11, 1963, Law Rep. No. 3, is ample authority to reject this contention of appellant. The facts in the Mize case are similar to the case at bar. Both of these cases were tried before the same Chancellor and similar decrees were rendered in each case. In the Mize case we said:

“From the facts herein enumerated, it is established that for a period of more than forty years, though he lived within a comparatively short distance of the land, did some visiting with members of the Sheridan family, and was aware of the improvements that had been made to the premises, no action was ever taken * * * to enforce his claim to the property.”

Further, quoting from Tatum v. Arkansas Lbr. Co., 103 Ark. 251, 146 S. W. 135:

“ ‘Laches in legal significance is not mere delay, but delay that works disadvantage to another. * * * The disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but, when a court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief.’ ”

We think this most recent decision by this court is sufficient on which to rest our affirmance of the trial court’s decree.

Furthermore, in one of our earlier cases, Walker v. Norton, Exec., 199 Ark. 593, 135 S. W. 2d 315, the subject of laches was considered. The following language is pertinent to the facts in the instant case:

“* * * the rule is peculiarly applicable where the difficulty of doing entire justice arises through the death of the principal participants in the transactions complained of, or of the witness or witnesses, or by reason of the original transactions having become so obscured by time as to render the ascertainment of the exact facts impossible. * * * [Citing cases]

This court is committed to the rule that long and unreasonable delays wherein prejudice has resulted by reason of change of conditions or loss of evidence, laches may rightfully be invoked against one so neglecting his alleged rights.” [Citing cases]

We think, also, that the appellant makes a “stale demand” in this case. The question of laches and stale demand arose in the case of Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425. In that case a mineral claimant was omitted from a foreclosure suit in 1923 and asserted his claim in 1945. In determining what was a reasonable time in which this claimant had a right to redeem his interest this court said that, in the absence of circumstances supporting a plea of laches, the best guide for determining a reasonable time is the equitable rule of a stale demand. In defining this equitable doctrine Ave said that it is:

* * one that has for a long time remained unasserted; one that is first asserted after an unexplained delay of such great length ... as to create a presumption . . . that it has been abandoned ... It is an inherent doctrine of jurisprudence that nothing less than conscience, good faith, or reasonable diligence can call courts of equity into activity, and they will not grant aid to a litigant who has negligently slept on his rights and suffered his demand to become stale, where injustice Avould be done by granting the relief asked.”

Also, Ave think the facts in the case at bar support the presumption of a lost grant. In Carter v. Goodson, 114 Ark. 62, 169 S. W. 806, the plaintiff brought an action in 1914 to eject from the land the defendant who had exercised acts of ownership and possession for approximately 45 years. On the question of the existence of a lost deed the court, as authority for applying the doctrine of a lost grant, quoted Avith approval this language:

“When possession and use are long continued they create a presumption of lawful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. It may be, in point of fact, that permission to occupy and use Avas given orally, or upon a contract of sale, with promise of a future conveyance, Avhich parties have subsequently neglected to obtain, or the conveyance executed may not have been acknoAvledged, so as to be recorded, or may have been mislaid or lost. Many circumstances may prevent the execution of a deed of conveyance, to which the occupant of the land is entitled, or may lead to its loss after being executed. * # *
The general statement of the doctrine, as we have seen from the authorities cited, is that the presumption of a grant is indulged merely to quiet a long possession which might otherwise be disturbed by reason of the inability of the possessor to produce the muniments of title, which were actually given at the time of the acquisition of the property by him or those under whom he claims, but have been lost, or which he or they were entitled to have at that time, but had neglected to obtain, and of which the witnesses have passed away, or their recollection of the transaction has become dimmed and imperfect. * * * the reason for attaching such weight to a possession of this character is the notoriety it gives to the claim of the occupant; and, in countries where land is generally occupied or cultivated, it is the most effective mode of asserting ownership.”

Also, see, 2 C.J.S., Presumption of Lost Grant, §'231, p. 873.

In the case at bar the appellant has permitted her claim to rest dormant for approximately forty (40) years while living in reasonable proximity to the lands in question and being fully aware of the long and consistent dominion and control of the lands by the appellees. We think the facts in this case support the Chancellor’s decree.

The decree is affirmed.

         See, also, Neal v. Stuckey, 202 Ark. 1119, 155 S. W. 2d 688; Falls v. Jackson, 208 Ark. 435, 186 S. W. 2d 787; Mitchell v. Malvern Lumber Co., 222 Ark. 266, 258 S. W. 2d 549; and 30 C. J. S. § 112, p. 520, § 113, p. 525.