author: Hugh M. Bland, Justice. Carleton Harris, Chief Justice,

text:
    Myrtle Dougan et al v. Douglas Booker et al
    5-3945
    407 S. W. 2d 369
    Opinion delivered October 17, 1966
    [Rehearing denied November 21, 1966.]

      Jolwit L. Wilson and S. Hubert Mayes Jr., for appellant.

      Riddick Riff el, for appellee.
   Hugh M. Bland, Justice.

This is a Workmen’s Compensation case. The appellants are Mrs. Myrtle Dougan, widow of Neuman Elmore Dougan, deceased, for herself and the other dependents of Mr. Dougan who suffered a heart attack and died on November 2, 1963 while working for Douglas Booker, the appellee. She claims that Mr. Dougan’s collapse and death arose out of and in the course of his employment and that point is disputed by the employer and his insurance carrier.

There was a hearing on the claim before the Referee on June 3, 1964 and at that hearing Dr. G. G. Hairston testified that he had been Mr. Dougan’s family physician; that he had treated him in a previous heart attack; that he knew Mr. Dougan’s condition; that he had advised Mr. Dougan not to overtax himself, and if he had any symptoms of chest pain or fatigue to stop and rest. Dr. Hairston stated that if on November 2, 1963 Mr. Dougan was underneath a house, holding up a 2x6 piece of lumber with one hand and nailing it with the other, such exertion would have a straining effect on him and that such straining effect, in Dr. Hairstoii’s opinion, caused the heart attack which Mr. Dougan suffered on the job.

Dr. Hairston was the only medical witness who appeared and testified in person. The other medical witnesses testified by deposition. At the conclusion of the hearing before the Referee on June 3, 1964, it was agreed that expert witnesses could be presented later. On September 17,1964 the claimants took the deposition of Dr. Phillip Cullen. He pointed out that the evidence showed that Mr. Dougan had done heavy work just before his heart attack and that it was his (Dr. Cullen’s) opinion that the excess strain of the heavy work was the cause of the heart attack. The case was allowed to drag along until November 11, 1964 when the respondent insurance carrier took the deposition of Dr. Alfred Kahn. He testified that he never saw Mr. Dougan, but had reviewed the transcript of the testimony taken on June 3rd; that from a reading of that testimony and in answer to a detailed hypothetical question, it was his (Dr. Kahn’s) opinion that Mr. Dougan’s work did not contribute to his death. With this opinion evidence of Dr. Kahn’s, a Referee (other than the one who heard the witnesses on June 3rd) wrote an opinion on February 5, 1965 denying the claim. The Commission (only two members acting) heard no more evidence and on June 2, 1965 adopted the written opinion of the Referee.

The Circuit Court affirmed the judgment of the Commission and the appellants bring appeal to this Court. The employer-employee relationship is admitted. The factual situation is as follows:

During the week Neuman Elmore Dougan, who had a previous history of heart trouble, worked at Ark-La Village and on weekends and holidays worked as a carpenter for Douglas Booker, a contractor at Emmet, Arkansas. At about 7:30 a.m. on Saturday, November 2, 1963, Dougan did various carpentry work for Booker at a residence where he was required to work on liis knees or in a stooped position. He returned to his home about 9:00 a.m. to get a crowbar and took a dose of Milk of Magnesia because he thought his stomach was bothering him. He then left to work at the Home Economic Cottage at Emmet High School where his employer was doing some remodeling work. He returned home at noon still complaining of his stomach. He went back to the Home Economic Cottage and worked by himself for a while and was joined by another worker at 2:00 p.m. The two of them lifted, held and nailed a 2x6 board underneath the floor of the house from a cramped position and then sawed and nailed a 4 x 8 piece of plywood on the floor of the house. The two men loaded scrap lumber onto a truck and took it to the employer’s house and returned with the employer to the Home Economic Cottage where further work was done by the three of them.

At about 2:00 p.m. Dougan again returned home to get a piece of plywood and asked his wife to go to Prescott to get a prescription refilled. After working a while longer, deceased complained of what he thought was stomach trouble. He continued to work and handed lumber to his employer and the other worker from a seated position. At approximately 4:30 p.m, his employer directed him to go about one block from the Cottage to turn on the water supply to the Cottage. After he had been gone for approximately fifteen minutes, he was discovered lying on the ground by the water valve and was taken to the hospital in the employer’s car but was pronounced dead of a heart attack upon arrival.

We thus have a case before us where a worker with a bad heart put forth unusual exertion in his work and collapsed on the job and died; and yet compensation has been denied his widow and dependents. Such is a miscarriage of justice in that the Commission failed to give the workmen’s compensation law a liberal interpretation in favor of the claimant which has been our frequently stated rule.

In Boyd v. McKown, 226 Ark. 174, 288 S. W. 2d 614, the Commission had denied compensation, yet this Court awarded compensation, saying that the testimony relied on by the Commission to deny compensation was not substantial:

‘ ‘ * * * All of the doctors who examined the claimant over a period of time stated that his disability is due to silicosis; evidence to the contrary is very weak and not substantial. Whether there is substantial evidence is a matter of law. Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738.
The law of this State is that 'workmen’s compensation cases should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant. Arkansas National Bank of Hot Springs v. Colbert, 209 Ark. 1070, 193 S. W. 2d 806; Elm Springs Canning Company v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Williams Manufacturing Company v. Walker, 206 Ark. 392, 175 S. W. 2d 380; Peerless Coal Company v. Jones, 219 Ark. 181, 240 S. W. 2d 647.
If this law has any meaning or force or effect, it should be applied here.”

In Tri-State Const. v. Worthen, 224 Ark. 418, 274 S. W. 2d 352, the worker suffered a cerebral hemorrhage and collapsed on the job. The "Workmen’s Compensation Commission denied compensation and we held the Commission was in error, saying:

“The Commission found that Worthen’s collapse was not the result of his work, but was the result of a pre-existing diseased condition. * * *
In a long line of cases we have held that when the worker collapses because of excessive work load or unusual strain, he is entitled to compensation, even though he had a pre-existing weakness which contributed to his collapse. One such case is Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26; and we quote from that m extenso:
‘But on the accidental injury phase of the case, the uncontradicted evidence shows that the claimant suffered an accidental injv,ry within the purview of our cases such as: Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252; McGregor v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961; Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629; Murch-Jarvis Co. v. Townsend, 209 Ark. 956, 193 S. W. 2d 310; and Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S. W. 2d 31.
In Herron Lumber Co. v. Neal, supra, the worker had a gastric ulcer which ruptured while he was performing a task that required extra energy. We held that the worker suffered an accidental injury within the purview of the Workmen’s Compensation Law, and quoted from 71 C. J. 607:
‘ ‘ Injury from strain or over-exertion due to a physical condition pre-disposing the employee to injury is an injury within the terms of the various workmen’s compensation acts * * *”
In McGregor v. Arrington, supra, the worker was a carpenter. He had an impaired heart, and, in trying to move a plank, he over-exerted himself and suffered a collapse and died. We allowed compensation, saying that the decedent’s death resulted from an accidental injury arising out of and in the course of his employment.
In Harding Glass Co. v. Albertson, supra, the worker also had an impaired heart; and while at work suffered a heat prostration and died. In allowing compensation, we quoted from Schneider on Workmen’s Compensation Text, Yol. 4, 1328, p. 543:
“It may be stated generally that if the conditions of the employment, whether due to over-exertion, excessive heat, excessive inhalation of dust and fumes, shock, excitement, nervous strain or trauma, tend to increase an employee’s blood pressure sufficiently to cause a cerebral hemorrhage, such result constitutes a compensable accident, within the intent of most compensation acts, though the employee may have been suffering from a pre-existing diseased condition which pre-disposed him to such result, or where such result would have occurred in time due to the natural progress of such pre-existing condition. . . The majority of the American Courts follow the English rule as set out in the case of Clover, Clayton & Co. v. Hughes, A. C. 242: ‘An accident arises out of the employment when the re(paired exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or condition of health. ’
In Sturgis Bros. v. Mays, supra, the worker, in the course of his employment, overtaxed his previously weakened heart and died. In allowing compensation, we quoted a leading case:
'‘Nor is it a defense that the wox-kman had some pre-disposing physical weakness but for which he would not have broken down. If the employment was the cause of the collapse, in the sense that but for the work he was doing it would not have occurred when it did, the injury arises out of the employ* anent. ’
In Murch-Jarvis Co. v. Townsend, supra, the worker became disabled from inhaling fumes and dust in the course of his work in a smelter room. We held such disability^ to be “an accidental injury within the meaning of our Workmen’s Compensation Law, ’ ’ saying:
“There are numerous cases from other jurisdictions holding that a disease, or an aggravation thereof, resulting from inhalation of dust particles or fumes may constitute an accident, or injury, within the meaning of the particular act involved.”
In Batesville White Lime Co. v. Bell, supra, the inhalation of dust particles caused heart trouble, we held such to be an accidental injury, saying:
“Now there is nothing in the proof of this case to justify a conclusion that the injury to appellee’s heart by breathing the excessive amount of dust was one which appellee might have reasonably expected or anticipated. Certainly it was accidental as far as he was concerned; and there is much authority for a holding that an injury, not necessarily the result of one impact alone, but caused by a continuation of irritation upon some part of the body by foreign substances may properly be said to be accidental. ’ ’
Then, in Triebsch v. Athletic Mining & Smelting Co., supra, we applied the rule of the quoted cases to the facts there existing’, and announced our conclusion in this language:
“Therefore, to summarize: we have in the case at bar undisputed facts which are similar in essential respects to those which existed in the six cases hereinbefore discussed, in each of which compensation was awarded. These facts are: a pre-existing ailment, cm increased and overtaxing effort to accomplish the work load u/nder the conditions existing, and a collapsed worker resulting therefrom. These make a case of accidental injury within the purview of the Workmen’s Compensation Law.” (Italics our own.) ’ ”

After reviewing all the evidence in the case, we concluded in Tri-State v. Worthen, supra:

“* * * the Commision apparently lost sight of the uncontradieted evidence which shows: (1) a preexisting* ailment; (2) an increased and overtaxing effort to accomplish the work load under the conditions existing; and (3) a collapsed worker resulting* therefrom. As we said in Triebsch v. Athletic Mining Co., 218 Ark. 379, 237 S. W. 2d 26: ‘These make a case of accidental injury within the purview of the Workmen’s Compensation Law.’ ”

In the case at bar, a man with a bad heart was trying to support Ms family. He went under a house, laid on his back, held up a 2 x 6 with one hand and nailed it with the other, thus having excess strain. He died and his family was denied compensation because it was said that he would have died anyway. In Bettendorf v. Kelly, 229 Ark. 672, 317 S. W. 2d 708, the argument was made that the worker would have died anyway and we said of that argument:

“We cannot follow appellant in the conclusion urged. Every time a mortal is born everyone knows that some time the mortal will die, so the death of a mortal is never unforeseen or unexpected in the light of human existence. But just when the death will occur and under what circumstances, is certainly unforeseeable and unpredictable. So it was with the heart attack of Mr. Kelly in the case at bar: no one could tell when it would occur. He was engaged in a line of work, he was exerting himself by the driving of nails into the pallets, he collapsed: Ms death was, therefore, accidental and within the scope of his employment.”

To conclude: the Workmen’s Compensation Law was adopted to give compensation to workers, not to allow insurance carriers to make fine distinctions to avoid liability. In this case the Commission did not give the liberal interpretation to the law which our cases require. The judgment is reversed and the cause remanded to direct the Commission to allow compensation to the widow and dependents.

Reversed and remanded.

Cobb, J., disqualified and not participating.

Harris, O. J., and Smith, J., dissent.

Carleton Harris, Chief Justice,

dissenting. Our rule to the effect that we will affirm the holding of the Workmen’s Compensation Commission, if there is any substantial evidence to support its ruling, is so well established as to require no citation of authority.

I consider that the testimony of Dr. Alfred Kahn, who testified that, in his opinion, Mr. Dougan’s work did not contribute to his death, was substantial evidence, and entirely sufficient to support the findings of the commission.

I therefore respectfully dissent.

Smith, J., joins in dissent.

      Honorable Osro Cobb was Chairman of the Workmen’s Compensation Commission at the time of such opinion, but he did not participate in the decision on the claim by the Workmen’s Compensation Commission and is not participating in the case in this Court.

      For the benefit of those interested in further study of heart cases, we call attention to the following: “The Heart Attack Case in Workmen’s Compensation,” by Hon. Henry Woods in 16 Ark. Law Review 214; “The Relationship of Effort or Stress to Coronary Heart Disease,” by Hon. William B. Putman, in 17 Ark. Law Review 39; and comments in 24 NACCA Law Journal, p. 134; 29 NACCA Law Journal, p. 223; and 30 NACCA Law Journal, p. 244.


source: Caselaw Access Project

author: Hugh M. Bland, Justice. Ed. F. MoFaddin, Justice,

license: Public Domain

text:
    Curtiss Anderson v. Fred Montgomery Webb et al
    5-3986
    406 S. W. 2d 871
    Opinion delivered October 17, 1966

      H. G. Partloiv Jr., for appellant.

      Marcus Evrard, for appellee.
   Hugh M. Bland, Justice.

The only issues involved in this appeal are whether or not Act No. 163 of The General Assembly of Arkansas for the year 1957 [Ark. Stat. Ann. § 50-405.1-2 (Supp. 1965)] is constitutional and whether or not a deed executed in conformity with its provisions is sufficient to terminate an estate tail. The facts are stipulated by the parties.

In October 1965 appellant submitted to appellee Fred Montgomery Webb a written proposal to purchase from him a tract of land described therein. Webb accepted the proposal. In accord with the terms of the proposal, appellant deposited in escrow with Blytheville Title Company $30,000.00 to cover full payment of the-purchase price to be delivered if and when title to the property was found to be good and upon failure of title, to be returned to appellant.

The title was examined and by reason of the following facts, the title was found to be encumbered by the possibility of an estate tail.

In the year 1943 Mrs. M. J. Webb and J. H. Webb,, her husband, being then owners of the property that is the subject of this action, executed and delivered to Fred Montgomery Webb (then a minor, 5 years of age) a deed by which they conveyed to him subject lands for the period of his natural life and created an estate tail to become effective after his death.

In the year 1965 Mrs. M. J. Webb and J. H. Webb, her husband, who were the grantors in the deed creating the estate tail; Fred Montgomery Webb, an unmarried man and life tenant under said deed; Jesse H. Webb, Jr., Sara Lynn Webb, wife of Jesse H. Webb, Jr., Louise Webb Fincannon and Margaret Webb Hay, all persons then in being who might or could ever become remaindermen under said deed, executed and delivered to Ann Norton, a female person of the City of Blytheville, Arkansas, a warranty deed with the intention of vesting in .her fee simple title to subject lands. It was stipulated that in the execution of this deed all provisions of Act No. 163 were followed and complied with.

On August 17, 1965, Ann Norton executed and delivered to Fred Montgomery Webb her warranty deed conveying subject land to him. It was stipulated that Fred Montgomery Webb was an unmarried man and had no bodily descendants.

The only matter in controversy between appellant and appellees in this cause is the question whether or not the deed that was given by all possible remainder-men now in being to Ann Norton was sufficient under the provisions of Act No. 163 of 1957 to dissolve the estate tail that was created by the deed from M. J. Webb and her husband to Fred Montgomery Webb.

Appellant, acting upon advice that the title was bad, made demand upon the escrow agent for surrender of his earnest money and a return to appellee of the deed held in escrow. Upon refusal, appellant filed suit in chancery court to rescind his proposal to buy for failure of title.

On trial the chancellor found that the provisions of Act No. 163, when properly followed, are adequate and sufficient to terminate an estate tail when executed by all then in being who could ever be remaindermen; that the deed in question in this cause was executed by the creators of said estate tail and by all persons in being who could ever be or become remaindermen thereunder; and that said deed did effectively terminate said estate tail and vest title in fee simple in the appellee Fred Montgomery Webb. The chancellor further directed the escrow agent, Blytheville Title Company, to make delivery of the deed to appellant and to pay over the purchase money held by it to appellee Fred Montgomery Webb.

From this holding áppellant has perfected his appeal. Appellant contends that Act No. 163 of 1957'vio-lates Article I, § 10 (paragraph 1) of the Constitution of the United States which provides:

“No state shall*** pass any Bill of Attainder, ex post facto law, or Law impairing the Obligation of Contracts * * * ”

Appellant further contends that the Act violates the prohibition of § 21, Article 2 of the Constitution of Arkansas which provides:

“No person shall be taken or imprisoned, or dis-seized of his estate freehold, liberties or privileges * * * except by the judgment of his peers or the law of the land; * * * ”

For many years, title examiners, lawyers, jurists and the general public have been plagued with the errors that unthinking or ill-advised persons commit when they entail property and thereby make it lose its value to the owners and the community. By the joint efforts of the Arkansas Bar Association, the staff of the University of Arkansas School of Law, and many others, Act No. 163 of 1957 was enacted into law. It was considered to be very necessary, expedient and desirable that a method be provided by which an estate tail may be terminated and title vested in fee simple. The preamble to Act No. 163 reads as follows:

“Whereas, the estate tail is a relic of medieval times and seldom desirable in view of the current necessity for credit and for transfer of title incident to the growth of communities, but nevertheless such an estate is often created without a realization of the delay and difficulty imposed on a conveyance of the land involved, which imposition is later sought to be dissolved; and
Whereas, the common law remedy of fine and common recovery for dissolution of said estates is no longer available as a method of dissolving same and a substitute therefore should be provided; * * *”

The first two sections of the Act are as follows:

“Section 1. Any estate which under the common law would be deemed an estate tail or a fee tail estate, or any estate created by reason of a conveyance to a grantee or grantees and the heirs of his or her body or to other contingent remainder-men, may be dissolved by the grantor creating such an estate and all life tenants and all of the other persons then living who might be remaindermen in event of the death of the life tenant or tenants executing a conveyance of the fee. Such conveyance shall vest in the grantee the fee simple title to the lands therein conveyed.
Section 2. The method of extinguishing the above mentioned estates shall apply equally to those estates now in existence and those which may hereafter come into existence.”

We have passed on the question involved here in the case of Love v. McDonald, 201 Ark. 882, 148 S. W. 2d 170. In that case the court had before it Act 76 of The General Assembly of Arkansas of 1929. Section 1 of that Act provides:

“Whenever any land in this State may hereafter be, or shall have heretofore been, devised by will or conveyed by grant to any person by any language which at common law would have vested in such person an estate in fee tail, then such person who at common law would have been invested with a fee tail estate in said lands, and who under the provisions of Section 1499 of Crawford & Moses Digest of the Statutes of the State of Arkansas, is or shall be invested with a life estate therein, is hereby authorized and empowered to execute oil and gas leases on said land, * * *”

The contention was there made that the Act violated both the State and Federal Constitutions. In disposing of this question the court said:

“The federal constitution does not contain an express guarantee that vested rights shall be protected. However, they are fully secured. The provision of the federal constitution prohibiting states from passing laws impairing obligation of contracts has been interpreted generally to embrace only those contracts wherein the subject-matter is property or some object of value; that is, contracts which confer rights that may be asserted in courts of justice. Only those contracts which create in a person or corporation a vested beneficial interest are the objects afforded protection by the prohibition against impairment expressed in Art. 1, § 10 of the Constitution. As was said in Douglas v. Kentucky, 168 U. S. 488, 42 L. ed. 553, 18 S. Ct. 199, the provisions of the federal constitution in reference to contracts only inhibit the states from passing laws impairing the obligations of such contracts as relate to property rights, but not to subjects that are purely governmental.
In the chapter on Constitutional Law, 6 R. C. L., § 303, there is this statement: ‘In regard to the validity of retroactive legislation, so far as it may affect only expectant or contingent interests, the law seems to be well settled that the power thus to deal with such interests resides in the legislature. Laws enacted for the betterment of judicial pro- ■ cedure and the unfettering of estates so as to bring them into market for sale are usually valid unless they actually impair rights which are vested. It has been said that most civil rights are derived from public laws, and if at any time before the rights become vested in particular individuals, the convenience of the state requires amendments to or the repeal of such laws, individuals have no cause of complaint. The general rule therefore is that the legislature has constitutional authority to change, ¡.•modify, or abolish expectant estates of all kinds, .. : since a mere expectation of property in the future, is not considered a vested right.’ ”

In the case before us, the only question being the constitutionality of the Act, we hold that it is not' contrary to any provision of the State Constitution nor does it violate the Federal Constitution.

Finding no error, the decree of the chancery court is affirmed.

McFaddin, J., dissents.

Ed. F. MoFaddin, Justice,

dissenting. In the present ease the Majority is holding that the Legislature in 1957 could validly effectuate a change in a deed that had been executed in 1943; and I cannot agree that such retroactive legislation is valid.

I have very little sympathy with estates tail, and I think it would be wise legislation to hold that in deeds executed after the adoption of such legislation the first taker took the fee simple. Some states have adopted such statutes. This is all discussed in detail in 19 Am. Jnr. p. 506 et seq., “Estates,” § 46 et seq. Particularly, I call attention to the following in § 55 of the article: “In most of the jurisdictions of this country statutes have been passed which serve to eliminate, modify, or abolish estates tail ... In a few jurisdictions the law forbids generally the creation of entailed estates.”

Even though entertaining the above views, I still must dissent from the Majority in the present case, because I do not believe the legislature can validly pass a law in 1957 changing the effects of a deed made in 1943; and I think the case of Love v. McDonald, 201 Ark. 882, 148 S. W. 2d 170, is wrong if it is understood to so hold. That case was decided under Act No. 76 of 1929, relating to oil and gas leases, and most.of the language about Act No. 76 of 1929 abolishing estates tail is dictum.

In the case before us Mr. and Mrs. Webb executed a deed in 1943 which created an estate tail. Fred Montgomery Webb has a life estate and the subsequent owners are to be determined at his death. Fred Montgomery Webb is still living, descent will not be cast until his death, and the possibility of issue is not extinct. On the death of Fred Montgomery Webb someone will be entitled to the property, and such beneficiary cannot be determined at this time.

I think we should hold as regards Act No. 163 of 1957 just as we held as regards Act No. 340 of 1947: it is valid prospectively, but void retroactively. In Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124, the parties owned property by entirety in 1946. By Act No. 340 of 1947 the Legislature empowered the chancery courts, on granting a divorce decree, to dissolve an entirety estate and change it to a tenancy in common. The question before us was whether the Act No. 340 of 1947 was constitutional when applied to an entirety estate created before the passage of the Act. We held that the 1947 enactment could not change or vary the rights of an estate by the entirety created before the adoption of said legislation. I think the same rule applies in the case at bar, and the 1957 legislation cannot constitutionally change the rights and effects of a deed executed in 1943.

Therefore, I respectfully dissent.

      In 161 A.L.E. 612 there is an exhaustive annotation on the subject, “Nature of estate created by grant or gift to one of his children.”


text:
    Claude W. Gilliam v. Sarah J. Gilliam
    5-3450
    406 S. W. 2d 870
    Opinion delivered October 17, 1966

      Philip N. Gowen, for appellant.

      John P. Gill, for appellee.
   Appellant sought relief in this court and as a condition for granting said relief per curiam order was entered on the 28 day of September, 1964, requiring appellant to make a good and sufficient bond in this court in the penal sum of $500.00, conditioned that the said amount “will be paid on any present arrearages in alimony payments we may hereafter determine.”

On October 22, 1964, appellant made and filed a cash bond in the sum of $500.00.

On August 17, 1966, appellant filed his motion for release of the bond funds to him.

On September 29, 1966, appellee’s attorney filed a formal response for appellee to appellant’s motion for release of the bond funds, setting forth that appellant was then in arrears in alimony payments to appellee in the sum of $5,400.00 or for a period of fifty-four months.

On September 15, 1966, the Internal Revenue Service of the United States filed with the Clerk of this Court its Notice of Levy, seeking to assert a tax lien against the said cash funds deposited as a bond by appellant.

"We have concluded that the trial court should take jurisdiction as to the question of priority of the various claimants to the bond funds, making certain that all claimants have an opportunity upon appropriate notice to assert their respective claims.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk of this Court deposit the bond funds of $500.00 into the registry of the trial court and that he deliver to the clerk of the trial court all instruments and pleadings relating to the bond funds which have been filed in this Court for the use and guidance of the trial court.


author: Carleton Haorris, Chief Justice.

text:
    Claud Jenkins et al v. John Leroy Simmons et al
    5-3984
    407 S. W. 2d 105
    Opinion, delivered October 24, 1966

      Paul K. Roberts, for appellants.
    (No brief filed for appellees).
   Carleton Haorris, Chief Justice.

This appeal relates to the construction of a deed. J. L. Scobey, a widower, married Ella Jenkins, a widow, on January 9, 1938. No children were born of this marriage. However, Scobey was the father of several grown children by a prior marriage, and these children, together with a grandchild, are appellees herein. Mrs. Scobey (Jenkins) also had children by a former marriage, and these children are appellants herein. After their marriage, J. L. and Ella purchased the land involved in this litigation in 1938, from C. W. Martin and wife, said deed conveying the property to “J. L. Scobey and Ella Scobey, his wife.” This conveyance, of course, created an estate by the entirety. Thereafter, on April 26, 1947, J. L. and Ella conveyed by warranty deed the land involved to Lera C. Funk, and on the same date, Mrs. Funk conveyed the land back to the Scobeys, pertinent portions of the deed reading as follows:

li * * * That I, Mrs. Lera C. Funk, * * * do hereby grant, bargain, sell and convey unto the said J. L. Scobey and Ella Scobey not as an estate in the entirety but in equal parts, and unto their heirs and assigns, forever, the following lands lying in the County of Bradley and State of Arkansas, to-wit:

(Description of lands)

“IT BEING EXPRESSLY UNDERSTOOD, each of the grantees is to receive an undivided one-half interest in the lands herein conveyed, to be inherited by their heirs at their death, unless conveyed by both of them prior to their deaths, and cannot be conveyed by either without the other joining therein.

“This Deed to operate as though the grantees were strangers and not husband and wife.”

The parties remained married until the death of J. L. Scobey on March 11, 1964; Ella Scobey died less than two weeks later, on March 24, 1964. They had not conveyed the property at the time of their deaths.

Appellants instituted suit in the Chancery Court of Bradley County, contending that, as heirs of Ella Jenkins Scobey, they were entitled to the lands here in issue, because (they assert) that irrespective of the language in the 1947 deed, an estate by the entirety was created, and since their mother had survived her husband, absolute title to the property vested in her. Appellees answered, contending that they were the owners of an undivided one-half interest in the lands by virtue of the deed heretofore quoted. On trial, the court held that the deed conveyed an undivided one-half interest in the property to J. L. Scobey, and a one-half undivided interest to Ella Scobey; that J. L. and El]a were tenants in common, each, holding a one-half interest in the property. The court then found that the heirs of J. L. Scobey, as a class, were the owners of an undivided one-half interest, and the heirs of Ella Scobey, as a class, were the owners of an undivided one-half interest, and appellants and appellees were thus tenants in common as to themselves. From the decree so entered, appellants bring this appeal.

Appellants vigorously contend that the deed from Lera Funk to the Scobeys created an estate by the entirety, for the simple reason that J. L. and Ella were man and wife at the time of the conveyance. Several of our earlier cases are cited in support of this argument, but none of these cases are in point. Redmon v. Hill, 233 Ark. 45, 342 S. W. 2d 410, is determinative of the issue in this litigation, that case holding that deeds are to be construed in a manner that will most nearly carry out the intention of the parties, consistent, however, with the rules of law. Quoting earlier cases, we said:

“ * # * the construction of a deed like any other contract it is the duty of the court to ascertain, if possible, the intention of the parties, especially that of the grantor.’ To the same effect is the decision in Carter Oil Company v. Weil, 209 Ark. 653, 192 S. W. 2d 215, where it was stated that: ‘All deeds are to be construed favorably, and as near the intention of the parties as possible, consistently with the rules of law.’ ”

With the above quoted language as our guide, there remains no doubt as to the correctness of the holding by the trial court. If ever an intent was clearly expressed in a deed, it is in this case. The language literally ‘£ spells out” exactly what the parties have in mind — -namely, that the heirs of each grantee shall inherit an undivided one-half interest in the property from his or her parent. The court was correct in finding that Scobey and wife were tenants in common, and that their heirs are likewise tenants in common in the lands at issue.

Appellants assert that if the Chancellor was correct in this holding, then ££it must be conceded that Ella Scobey had dower and homestead interests in the J. L. Scobey undivided half interest.” It is true that Ella Scobey had this interest for nearly two weeks, but when she died, her dower and homestead interests passed completely out of the picture, for, since her husband left children, she only had a life interest in his lands. See Atkinson v. Van Echaute, 236 Ark. 423, 366 S. W. 2d 273; also Ark. Stat. Ann. § 61-201 (1947), together with compiler’s note to section.

In accordance with what has been said, it is evident that the learned Chancellor reached the right conclusions.

Affirmed.

       For instance, Robinson v. Eagle and Wife, 29 Ark. 202, and Parrish v. Parrish, 151 Ark. 161, 235 S. W. 792, merely hold that a conveyance to a husband and wife (no limitations or conditions were involved) creates an estate by the entirety, Parrish holding that this is true though the deed does not reflect that the parties are husband and wife. Roulston v. Hall, 66 Ark. 305, 50 S. W. 690, holds that an estate by the entirety is not subject to dower. Weir v. Brigham, 218 Ark. 354, 236 S. W. 2d 435, holds that Act 86 of 1935 (permitting spouses to convey directly to each other) cannot be relied upon to create an estate by the entirety. See however, the later case of Ebrite v. Brookhyser, 219 Ark. 676, 244 S. W. 2d 625.


author: Ed. F. McFaddin, Justice.

text:
    Delight Egg Farms, Inc. et al v. Raymond Cash
    5-3978
    407 S. W. 2d 108
    Opinion delivered October 24, 1966

      McMillan, McMillan & Turner, By Otis H. Turner, for appellant.

      Jerry Thomasson, for appellee.
   Ed. F. McFaddin, Justice.

This is a Workmen’s Compensation case. Tbe Commission made an award that the worker, Raymond Cash, was entitled to total permanent disability compensation; tbe Circuit Court affirmed; and tbe employer (Delight Egg Farms, Inc.) and its insurance carrier bring this appeal insisting: (a) that Mr. Cash is only entitled to 58% permanent partial disability to tbe left shoulder; and (b) that there is no evidence that any other disability arose out of and in the course of the employment.

The basic facts are not in dispute. Raymond Cash, a man 54 years of age, was a truck driver for the appellant, Delight Egg Farms, Inc. His duties were to assist in loading crates of eggs on the truck, to haul them to destination, and to assist in unloading them. Dates are important:

(a) In 1963 Mr. Cash had a physical examination preliminary to a driver’s license and was found to be in good condition in every respect.

(b) On January 23, 1964, while assisting in loading crates of eggs, he slipped and fell some four or five feet from the loading platform to the ground, thereby receiving injuries, contusions and abrasions to his left shoulder, his left leg, and the left side of his head. He was immediately sent to Dr. George H. Wright at Hope, where he was hospitalized for treatment. Dr. Wright found a postero-inferior dislocation of the left humerus (shoulder); and also the abrasions and contusions previously mentioned. In addition, Dr. Wright found a rather marked hypertension and uncontrolled diabetes mellitus. The dislocated shoulder was reduced and splinted. After five or six days the diabetic condition was controlled and the hypertension improved; and Mr. Cash was discharged from the hospital for out-patient observation.

(c) On January 30, 1964, Mr. Cash returned to Dr. Wright, complaining that pains had developed in the left leg. There was a slight swelling of the foot; and Dr. Wright and his associate, Dr. Forney Holt, diagnosed Mr. Cash’s condition as a thrombo phlebitis of the deep vessels of the leg. Bed rest, elastic bandage, and close observation were advised. Mr. Cash remained in the hospital for about two weeks. His hypertension and diabetes seemed to be under control; but his left leg continued to swell when he stood on it for any length of time. He was discharged from the hospital and sent home for further convalescence, with instructions to avoid any exertion.

(d) Some time in February Mr. Cash returned to work in order to support his family, first doing light work for about two weeks, and then gradually doing more work. On the morning of March 27th he assisted in loading his truck with some 60 or 70 cases of eggs (each loaded case weighing about 30 pounds), which he took to Texarkana and assisted in unloading.

(e) The next morning (March 28th) he awakened to find his left hand swollen and his mouth drawn a little; but he went to work that morning and again engaged in loading crates of eggs on the truck. Soon his hand was so drawn that he could not open it, and his mouth was drawn, and he had numbness and loss of use of his left side. He had suffered a paralysis. He was sent to Dr. Wright in Hope, who put him in the hospital, where he remained for some twenty days.

It will be observed that the original injury was on January 23rd; that on January 30th a thrombo phlebitis condition developed in his left leg; and that by March 28th there was a cerebral vascular accident. The doctors call this CYA, but in layman’s language it means a paralytic stroke. He filed a claim for total permanent disability. In the hearing before the Referee there was a serious contention made by the claimant that the paralytic stroke of March 28th was the result of the thrombo phlebitis of the leg. That claim was disputed. In the hearing before the Full Commission, the attorney for the claimant — for reasons best known to himself — made this statement: “I, attorney for the claimant Raymond Cash, hereby state that I withdraw any contention that claimant’s stroke was caused by a blood clot emanating from his left calf. Claimant retains his contention that the stroke was aggravated by his employment.”

Thus, there is now no claim that the thrombo phlebitis condition diagnosed by Dr. Wright on January 30th was the cause of the paralytic condition of March 28th. Rather, it is the contention of the claimant (appellee here) that he has three injuries, all arising out of and in the course of his employment, to-wit: (1) the frozen shonlder injury was the result of the fall on January 23, 1964, and is compensable; (2) the thrombo phlebitis condition was the result of the injury on January 23rd, and is compensable; and (3) the work which appellee performed on March 28th aggravated his hypertension and resulted in the stroke or paralysis which he suffered and is therefore compensable.

As to the first two-items (the frozen shoulder and -the- thrombo phlebitis) the evidence is overwhelming tliat these injuries arose out of and in the course of the employment, in that the appellee fell from the loading platform on January 23rd. But as to the paralytic condition of March 28th being aggravated by his work, the evidence is in dispute. A majority of the Commission agreed with the claimant in all of his three contentions; and the only question before us is whether there is substantial evidence to sustain the finding of the Commission as regards the paralytic stroke on March 28th. The doctor for the claimant testified that when Mr. Cash went to work on March 28th his work aggravated his already incipient paralytic condition; and that if he had stayed in bed and avoided exertion he probably would not have suffered the complete disability that he has. Thus, the doctor for the claimant made a case of a workman with a disability collapsing on the job because of exertion.

The eminent doctor for the employer agreed that the exertion put forth at work on the morning of March 28th aggravated the paralytic condition. Thus we have a case wherein a worker in a bad physical condition continued to work and the exertion put forth resulted in a collapse and total disability. Under these circumstances the 'Commission was correct in awarding total permanent disability, in accordance with our holdings in such eases as Herron Lbr. Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252; McGregor v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; and Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961.

Affirmed.

Cobb, J., disqualified and not participating.

      Here is the testimony of the doctor on the point:
      “Q. You wouldn’t want him up walking about?
      “A. No.
      “Q. Now this man testified, and he gave you a history, that he woke up one morning in March . . . that his left hand was numb, paralyzed and drawn and that the whole left side of the body, the face, arm and leg were numb. Do you feel that he was beginning to experience the symptoms of a stroke at that time?
      “A. Yes.
      “Q. Then he went on to work and Dr. Wright tells us that he saw him at 9 o’clock that morning . . . the record up to date shows that he worked from seven until nine o’clock. He testified that during that time he lifted thirty containers from a railroad boxcar onto a truck and that the containers weighed thirty pounds each. ... In any event would you say that whether he lifted thirty containers weighing thirty pounds each or drove a truck around the area that morning, that the work aggravated his condition even to the extent of one percent?
      “A. I think it is quite reasonable that his condition could have been aggravated by any manner of exertion.”

       The Workmen’s Compensation Commission’s award contained this very pertinent paragraph in its findings: “We are aware that where there is life there is hope. Should this claimant make unexpected improvement to such a point that he can resume gainful employment, respondent is in no way foreclosed by this decision to then seek an order of the Commission terminating unpaid compensation benefits.”


author: George Rose Smith, Justice.

text:
    Old American Life Ins. Co. v. Theodore Williams
    5-3998
    407 S. W. 2d 110
    Opinion delivered October 24, 1966

      Jack Young, for appellant.

      L. A. Hardin, for appellee.
   George Rose Smith, Justice.

In this action upon a health and accident insurance policy the plaintiff recovered the full amount sued for: Six hundred dollars for the loss of sight in his right eye, $63.27 for temporary disability, the statutory penalty, and an attorney’s fee of $1,000. In substance there are three contentions for reversal. (At the outset we deny the appellee’s motion for affirmance under Rule 9, as we find the abstract of the record to be sufficient.)

First, the insurer insists that the plaintiff’s right eye had been sightless for several years before it was surgically removed following an accident in 1965. In the court below this was an issue of fact upon which the testimony is in conflict. Williams testified that before the accident he could see well enough with his right eye to recognize people and “to tell time and do things.” There is some medical evidence to the contrary, but Williams ’s testimony is amply sufficient to support the trial court’s finding of fact.

Second, the appellant argues that the court should have deducted from the judgment the amount of premiums accruing between the filing of the complaint and the date of trial. This argument is without merit, not only because it is raised in this court for the first time but also because the plaintiff’s right to recover was not dependent upon the policy’s having been in force at the time of trial. As far as the record shows, the insured may have intended for the policy to lapse.

Third, the insurer correctly contends that the trial court allowed an excessive attorney’s fee. The total recovery was $663.27. That is the whole case; the judgment does not establish any right in the plaintiff for an additional recovery in the future. We are of the opinion that a fee of $600 for counsel’s services in the trial court and in this court is the maximum that should be awarded.

With the indicated modification the judgment is affirmed. Under Rule 24 (c) the appellant recovers its costs.


author: Paul Ward, Justice.

text:
    Stuttgart Shoe Real Estate Corp. v. City of Stuttgart et al
    5-3995
    407 S. W. 2d 104
    Opinion delivered October 24, 1966

      Macom & Moorhead, for appellant.

      Cecil C. Matthews and William C. Daviss, for appellee.
   Paul Ward, Justice.

This appeal involves the validity of Zoning Ordinance No. 615 passed in 1965 by the City Council of Stuttgart.

On July 26, 1965 Stuttgart Shoe Real Estate Corporation (appellant) filed suit in chancery court against the City and the Baldwin Oil Company, Inc. alleging, in substance, that the City acted arbitrarily in passing said ordinance which rezoned a parcel of land owned by Baldwin from B-2 classification to Industrial-1 classification, and which decreased the value of its property. The prayer was that the ordinance be declared “illegal and void,” and that the same be vacated and set aside. Upon trial the court refused to grant the prayer.

For a better understanding of the issues, we set out hereafter some of the pertinent background facts.

The ordinance in question applied only to a small plot of land, owned by Baldwin, approximately 100 feet from north to south and 326.7 feet from east to west— referred to hereafter as the “subject property.” Subject property is bounded on the west by Main Street and on the south by 22nd Street, which street is the south boundary of the 'City. Prior to 1965 the subject property (together with the property on both sides of Main Street and for several blocks north) was zoned B-2 for retail establishments and filling stations.

Abutting the subject property on the east there is a plot of ground (similar in shape and size to Baldwin’s property) which is owned by appellant, and on which there is a shoe manufacturing plant. Appellant’s property (together with the property to the north and east) is zoned C-l or quiet industrial property.

After careful consideration we have concluded the decree of the trial court should be affirmed.

The record reveals that Baldwin intends to construct on subject property an aboveground gasoline storage facility with a capacity of 48-,000 gallons. Appellant’s principal contention appears to be that such a usage will endanger the safety of its employees, that it will increase its insurance rates, and that it will decrease the value of its property. We have concluded that the preponderance of the evidence sustains the chancellor in holding to the contrary.

As stated previously, under zoning classification B-2 Baldwin had the right to build a filling station (including underground gasoline storage tanks) on the subject property. It is undisputed that, without ordinance No. 615 Baldwin could not have constructed proposed business anywhere within the limits of the City. Also, the evidence shows that the City council thoroughly considered all the above possibilities on two or more occasions before it passed ordinance No. 615. The mayor of the City who testified in favor of rezoning said that he had talked with the Fire Department about possible dangers involved and learned it had had some trouble with underground storage tanks but knew of no trouble with the aboveground tanks. There was evidence that the installation would conform with standards required by insurance companies. Also there was evidence that the value of appellant’s property would not be decreased because of the said installation.

In McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167, the chancery court upheld Zoning Ordinance No. 5420. On appeal to this Court we affirmed the trial court, stating:

“Moreover, to set aside the decree and the finding of the Council would be substituting our judgment for that of the zoning authorities who are primarily charged with the duty and responsibility of determining the question. This we should not do unless we can say from the evidence that the action of the Council and the decision of the court are unreasonable and arbitrary.”

In the case of Economy Wholesale Co., Inc. v. Rodgers, 232 Ark. 835, 340 S. W. 2d 583, in dealing with a zoning ordinance passed by the City of Searcy, we cited the McKinney case with approval, stating:

“We have held that we would not set aside the findings of a city council unless we find that the facts clearly show that the council acted unreasonably and arbitrarily. To do so would ‘be substituting our judgment for tbat of the zoning authorities who are primarily charged with the duty and responsibility of determining the question’ ”.

It is our conclusion therefore that the decree of the trial court (upholding the ordinance) must be affirmed.

Affirmed.


author: Osro Cobb, Justice.

text:
    Frankie Kinard v. City of Conway
    5223
    407 S. W. 2d 382
    Opinion delivered October 24, 1966
    [Rehearing denied November 21, 1966.]

      Terral, Rawlings, Matthews & Turtle, for appellant.

      Bruce Bennett, Attorney General; Jerry W. Fembus, Asst. Atty. Gen., for appellee.
   Osro Cobb, Justice.

This appellant, a minor, on two separate occasions within a period of less than one year, was arrested, charged and convicted in the Municipal Court of Conway for the offense of driving while under the influence of intoxicating liquor. Appellant appealed his second conviction to the Circuit Court where, following trial on September 20, 1965, appellant was found guilty as a second offender and was sentenced to 120 days in jail and his driving privileges were suspended for 60 days. When imposing sentence, the trial court announced that he was suspending the imposition of the jail sentence for a period of one year conditioned upon the lawful conduct and behavior of appellant during such period of time.

During the one year suspension of the jail sentence appellant was arrested, charged and released upon cash bond for the separate offenses of drunkenness and illegal possession by a minor of intoxicants. These offenses were alleged to have been committed by appellant on February 2, 1966, in the nighttime within the city limits of Conway. On the 14th day of March, 1966 the Municipal Court entered its separate judgments finding appellant guilty on both charges. Appellant was fined $10.00 and $1.00 costs for possessing intoxicants while a minor, and $20.00 plus $1.00 costs for the offense of drunkenness. The record reflects that appellant entered a plea of guilty as to the drunkenness charge.

On April 18, 1966 the Circuit Clerk of Faulkner County notified appellant by letter that a hearing on a petition to revoke his suspended jail sentence would be held by the Circuit Judge on April 28, 1966. A formal hearing was held on that date, appellant being represented by counsel and the City of Conway by the City Attorney. It is significant that in the course of the hearing appellant testified briefly and admitted that at the time of his arrest on February 2, 1966 he was alone in his car and that a quantity of beer was in the ear. Following said hearing the Circuit Court entered its order revoking the suspension of the previous jail sentence of 120 days imposed upon appellant. It is from this action of the trial court that the case reaches us on appeal

All points raised by appellant relate to the alleged lack of authority of the Circuit Court, under the facts peculiar to this case, to revoke the suspension of appellant’s sentence by invoking the provisions of Ark. Stat. Ann. § 43-2324 (Repl. Í964).

We quote the applicable statutes as to the offense of driving while under the influence of intoxicating liquor and the penalties therefor, as follows: Ark. Stat. Ann. § 75-1027, § 75-1029 (Repl. 1957); § 75-1029.2 (Supp. 1965):

“75-1027. Driving under influence of intoxicating liquor. — It is unlawful and punishable as provided in Section 3 [§ 75-1029] of this Act for any person who is under the influence of intoxicating liquor to drive or be in actual control of any vehicle within this State. [Acts 1953, No. 208, § 1, p. 654.]”
“75-1029. Penalty. * * * On a second or subsequent conviction for an offense committed within one [1] year of the first offense of a violation of this Act [§§ 75-1027 — 75-1031], he shall be punished by imprisonment for not less than ten days [10], nor more than one [1] year, and a fine of not less than two hundred and fifty dollars ($250.00), nor more than one thousand dollars ($1,000.00), and his privilege to operate a motor vehicle shall be revoked for one [1] year. Imprisonment as provided in this Section shall not be deemed to have begun until after conviction and sentencing of the defendant. [Acts 1953, No. 208, §3p. 654.”]
“75-1029.2. Penalty mandatory. — The penalty provided in Section 1 [§ 75-1029.1] hereof is mandatory and no court shall have authority to suspend it. [Acts 1961, No. 52 § 2 p. 108.]” (Italics supplied).

It was, therefore, the mandatory duty of the court when imposing a jail sentence upon appellant for conviction of a second offense of driving while under the influence of intoxicants within one year of the previous offense, to have also included in the sentence revocation of appellant’s driving privileges for one year, and to have imposed upon appellant a fine of not less than $250.00. However, this is not raised or at issue on this appeal.

We have many times held that the sufficiency of the evidence to sustain an order of revocation of a suspended sentence is a matter addressing itself to the sound discretion of the trial court. Bodner v. State, 221 Ark. 545, 254 S. W. 2d 463 (1953); Calloway v. State, 201 Ark. 542, 145 S. W. 2d 353 (1940); Spears v. State, 194 Ark. 836, 109 S. W. 2d 926 (1937).

We have examined the entire record in this case and we have concluded that the Circuit Judge did not abuse his discretion in revoking the suspension of the jail sentence. In Gross v. State, 240 Ark. 926, 403 S. W. 2d 75 (1966), we reviewed both the statutory authority of the trial judge and the proper procedures to be followed by the trial courts in such revocation proceedings. The rules announced by us in the Gross case are clearly applicable to this ease. The latest legislative enactment as to suspension of sentences and conditions of probation is Act No. 438 of 1965, which now appears as Ark. Stat. Ann. 43-2331 et seq (Supp. 1965).

It has been noted by us in reviewing this case that appellant and his attorney had adequate notice in which to prepare for the hearing upon the petition to revoke appellant’s suspended sentence; that appellant must have been aware of the importance of the hearing involving his possible imprisonment and that, in the face of this situation, appellant did not produce a single witness to give testimony in his behalf as to the circumstances that actually existed at the time he was arrested on February 2, 1966 and charged with the offenses of drunkenness and possession by a minor of intoxicants. Furthermore, the charge against appellant for the offense of drunkenness on February 2, 1966, when found in his automobile which was not then in motion, is strikingly similar to the previous convictions of appellant for driving while under the influence of intoxicating liquor, the offense for which he had been given the suspended sentence. Appellant obviously disregarded the warnings given to him by the trial court at the time of the suspension of his sentence.

We therefore affirm the action of the. trial court in revoking the suspension of the 120 day jail sentence of appellant.

Affirmed.


author: Gut Amsler, Justice.

text:
    William Farrar v. State of Arkansas
    5218
    407 S. W. 2d 112
    Opinion delivered October 24, 1966

      A. M. Coates, for appellant.

      Bruce Bennett, Attorney General, H. Clay Robinson, Asst. Atty. Gen., for appellee.
   Gut Amsler, Justice.

Appellant, William Farrar (referred to in the record as Jack Farrar), on August 14, 1965, was charged by information in the Circuit Court of Lee 'County, Arkansas, with the crime of robbery.

By separate informations Priest Bob Gates, Joe Cheers and Boland Cheers were charged with participating in the offense. Lafayette O’Donnell was the alleged victim.

Within a few hours after the offense was committed on the evening of July 10, 1965, Joe Cheers and Boland Cheers left the State of Arkansas and were apprehended in Kansas City, Missouri, and returned to Lee County, Arkansas, sometime in the early part of 1966.

On the 18th of February, 1966, all the defendants entered pleas of not guilty, and the court appointed counsel to represent the defendunts, Priest Bob Gates, Joe and Boland Cheers, and thereafter Joe and Boland Cheers changed their pleas to guilty and their sentences were deferred until after the trial of appellant and Priest Boh Gates.

On the 7th day of March, 1966, the charges against appellant and Priest Bob Gates were consolidated and tried. Gates was found not guilty and appellant was convicted of grand larceny. The court entered its judgment sentencing Farrar to one year in prison.

Appellant filed his motion for a new trial, which was overruled, and the case is here on appeal. Five errors are alleged, hut our conclusion necessitates a discussion of only one. The inquiry of importance is whether there was any corroborative evidence to support the testimony of an accomplice.

There was considerable testimony regarding the early evening activities of the parties but we deem this of little significance since sometime around midnight of July 10,1965, the four defendants and the victim were first together at Farrar’s cafe. O’Donnell purchased a couple of drinks and a sandwich, which he used a $5 bill to pay for. O’Donnell decided to leave the cafe so appellant offered to haul him but he declined, .and then left, walking, with the Cheers boys. He was going by Emma Lee Jefferson’s (the Cheers’ boys Aunt) to leave his money for safe keeping before going some place else.

There is a conflict regarding subsequent events. O’Donnell and the Cheers boys say that Farrar, with Gates in the car, picked them up and hauled them to Emma Lee’s house. Then O’Donnell, according to appellant’s brief, says:

“I got out of the car, and the two Cheers boys got out with me, one on one side and one on the other, and Joe Cheers was the one that took my money. I said, ‘Bring my money back,’ and he started hollering, ‘Wait for me.’ I then went down and woke up Moore who was in the same house with Emma Lee and I got his car and he, Emma Lee and Moore got in his car and tried to find this other car, which we did in front of the Supermarket on Highway 79. I got out of the car and went up to the car. Joe Lewis was in and said, ‘Give me my money back.” Farrar did not say anything. Later on he said he did not know anything about any money.”

On the other hand Farrar says that he and Gates, after leaving the cafe, decided to drive to “Millie’s Place” out on Highway 44. Then appellant’s brief recites :

“We got out to Highway 1 and made a right turn off of Moton Street. We were going down Moton Street and got to Highway 1 and stopped, then made a right turn and went about a house and a half, I was at the Chinaman’s store. I was driving along real slow with the windows down, it was warm, and Joe Cheers came by and hollered and said, ‘Where are yon going?’ and I said, ‘I am going out to Millie’s, and he said, ‘ There is Eoland, ’ and he got in the car. Joe told me to stop for Eoland, and he told me they wanted me to take them to the Blue Goose on Highway 79 West of Marianna about two miles. Gates was in the car with me at the time and an old drunk fellow. After Eoland Cheers got in the car, he said he wanted to go to the Blue Goose, and I made a left turn on Florida Street, which runs North and South. We were going down Louisiana Street, one block from No. 1 Highway which goes one block to Arkansas Street which took us back to the Chinaman’s store and took us back within one house of Emma Lee’s house. We then went down Arkansas to No. 1 Highway, which runs back to Moton Street. Arkansas Street terminates and so does Moton. I was on my way out to the Blue Goose. I was going out Marine Street to Mann Fong, the Chinaman’s and that is where E. B. Moore pulled up behind me and Mowed his horn and Emma Lee Jefferson came up to the car. Emma Lee came over to my car and said, ‘Joe, give Son his money’ and he said, ‘I haven’t got his money,’ and Son said, ‘We are going to the police.’ I said, ‘I will go with you. ’ I g’ot in my car and trailed him, and he went back home. I thought he was going to the police. At that time, the Cheers boys, the old drunk and myself and Gates were in my car.”

Joe Cheers testified that Bob Gates snatched O’Donnell’s purse as they approached Emma Lee’s porch, after riding up in appellant’s ear. He also said that Gates gave the money to appellant and that Farrar divided the money four ways. He claims that he got $27 and his brother a similar amount.

Priest Gates testified that he did not see the money, did not get any of it and did not see it divided. Eoland Cheers did not testify.

Lafayette 0 ’Donnell, the victim, testified positively that the Cheers boys took his money and that he didn’t think appellant had anything to do with it.

Frank Turner testified that on Monday, following the robbery, he went to Memphis with appellant and. that he (Turner) loaned appellant money to replace a defective generator. If appellant had any money “he didn’t show it.”

It will thus be seen that the only evidence against Farrar is that of the accomplice Joe Cheers — unless, of course, considerable weight is given to the fact that appellant gave the Cheers boys and the others a ride in his car and that he was near the scene of the crime.

We have held that the corroboration of an accomplice must be substantial and that placing the defendant near the scene of the crime is not sufficient. Strum v. State, 168 Ark. 1012, 272 S. W. 359; Bright v. State, 212 Ark. 852, 208 S. W. 2d 168.

The state in its brief says:

“From O’Donnell’s testimony alone, the jury could have concluded that the appellant became aware of the fact that O’Donnell was carrying a large sum of money while 0 ’Donnell was in Farrar’s place of business; and, although 0 ’Donnell while at Farrar’s place refused a ride home in Farrar’s automobile, Farrar then followed O’Donnell and the ‘Cheers boys ’ and insisted on giving them a ride for the purpose of participating in taking the money from O’Donnell. From this testimony, it would appear that Farrar, Gates and the ‘Cheers boys’ had conspired, during the period that O’Donnell was at Farrar’s place, to steal the money, and that Farrar was an accessory to the accomplishment of that conspiracy.”

This is clearly conjecture as there is not an iota of proof to support the argument that the defendants knew or discussed the amount of money the victim had or that any plans were made to relieve him of it. The corroboration is insufficient.

Reversed and remanded.


author: Hugh M. Bland, Justice.

text:
    Don Warren v. State of Arkansas
    5219
    407 S. W. 2d 724
    Opinion delivered October 24, 1966
    [Rehearing denied November 28, 1966.]

      Shelby Ferguson and Beimett & Purtle, for appellant.

      Bruce Bennett, Attorney General; Lance Hansha/w, Asst. Atty. Gen., for appellee.
   Hugh M. Bland, Justice.

The appellant was convicted for the crime of unlawfully and feloniously selling intoxicating liquor in a prohibited area in Sharp County Arkansas and the jury fixed his punishment at a fine of $1,000.00. From this judgment and conviction appellant has perfected his appeal.

Appellant does not contend that the evidence was insufficient to support the conviction, hut relies entirely on two points:

“I. The defendant was deprived of the protection of Arkansas Statutes 39-206 and 39-208 and of his state and federal constitutional guarantees under Art. 2 Secs. 7, 8, 13, 18, 21 of the Constitution of Arkansas and under the 14th Amendment (relating to due process), the 5th Amendment (relating to due process of law) and under the 6th Amendment (relating to public trial by impartial jury) of the United States Constitution.
II. The court was held at a wrong and improper place, consequently the court was without jurisdiction to try the defendant and the conviction a nullity.”

On April 1, 1966 appellant filed his motion to quash the jury panel alleging that Sharp County had been consolidated into one judicial district; that Ark. Stat. Ann. § 39-206 and § 39-208 require that the petit jurors be selected from all parts of the county; that all or 35 of the 36 persons summoned as jurors in this case resided in the old northern district of Sharp County which deprived appellant of his civil and constitutional rights.

On the same day, April 1, 1966, the court heard this motion, including the testimony of the jury commissioners, considered the stipulation entered into between the parties and found:

“That by Act No. 39 of the General Assembly of Arkansas of 1893 Sharp County was divided into two judicial districts, one being designated the Southern District with the county seat located at Evening Shade, and the other being designated the Northern District with the county seat at Hardy, and thereafter such county seats were established.
That by Act. No. 110 of 1933, the terms of the Circuit Court for the Northern District commence the first Monday in January and continue for one year and the term for the Southern District commences the second Monday in July of each year and continues for a year thereafter and also by said Act No. 110 of 1933, the jurisdiction of said two districts were made co-extensive, the court in each said district having jurisdiction co-extensive with the entire county.
That on February 1, 1965 the Arkansas Supreme Court affirmed an order of the Sharp County Circuit Court to the effect that by an election held in said county on June 11, 1963, a proper majority had voted to remove the county seats of Sharp County from Evening Shade and Hardy and to build a courthouse and establish a single county seat at Ash Flat, Arkansas.
That as yet no actual construction of a courthouse at Ash Flat has commenced.
That the various county offices and records still remain at Evening Shade and Hardy in the respective buildings heretofore utilized as courthouses and that the county governmental affairs, including the holding of Circuit Court, have been and are being conducted in the same or similar manner as prior to the aforesaid Supreme Court decision of February 1, 1965, and that there are no governmental affairs being conducted as yet at Ash Flat, Arkansas.
That in due time during the Northern district term, which commenced on the first Monday in January, 1965 the court appointed jury commissioners for the purpose of selecting lists of grand, petit and special petit jurors for service during the January 1966 term of the Circuit Court for the Northern District and that at the time designated the same persons selected as jury commissioners, to-wit: Fred Sweitzer, Willie Jean Oyler and Herbert Schales, reported for service and were properly examined as to their qualifications and upon being found to be qualified were sworn as such and were instructed as to their duties as provided by law.
That in view of the fact there is as yet no courthouse at Ash Flat and none of the Sharp County Governmental affairs or offices have been conducted at or moved to Ash Flat, the court instructed said jury commissioners as it customarily had so instructed jury commissioners for the Northern District of Sharp County prior to the aforesaid Supreme Court decision of February 1, 1965 concerning their duties as such officials; that the court informed the jury commissioners as to the location of the line separating the Northern and Southern Judicial Districts of Sharp 'County and said Jury Commissioners were further informed of the aforesaid Act 110 of 1933 and that while thereunder the Northern and Southern Districts of Sharp County had coextensive jurisdiction in Circuit Courts, the commissioners could confine their jury selection to the area known as the Northern District but that if anyone residing South of the line separating said districts should be selected for jury service and if otherwise qualified, they would be eligible to serve as jurors in the Northern District.
That as shown by the list of jurors selected for the present term of the court, the greater part of the petit jurors so selected reside in the Northern District of the county and that only four were selected who resided in the Southern District.
That there was no systematic exclusion of person or group by the jury commissioners in their selection of persons for petit jury service for the present term of the court.
That the actions of the jury commissioners in their selection of petit jurors for this term of the court were proper and that none of the defendant’s rights have been violated by their actions and the defendant’s motion to qnash the panel should be overruled. ’ ’

, We think the motion to quash was properly overruled by the court in view of the provision of Ark. Stat. Ann. § 39-208 (Repl. 1962) which is as follows:

“Preparation of lists of petit jurors and alternates —Indorsement of lists. — The commissioners shall also select from the electors of said county, or from the area constituting a division thereof where a county has [2] or more districts for the conduct of circuit courts, not less than twenty-four (24) nor more than thirty-six (36) qualified electors, as the court may direct, having the qualifications prescribed in Section 39-206 Arkansas Statutes 1947 Annotated to serve as petit jurors at the next term of court; * * * ”.

See, also, Collins v. State, 200 Ark. 1027, 143 S. W. 2d 1; Terry v. State, 149 Ark. 462, 233 S. W. 673.

The motion was properly overruled for the further reason that the record here fails to show that the appellant exhausted his peremptory challenges. In such a situation we have held that the appellant cannot complain of the composition of the jury. In the case of Trotter & Harris v. State, 237 Ark. 820, 377 S. W. 2d 14, cert. denied 379 U. S. 890, we said:

“* * * Throughout the years, no rule of procedure has been more consistently adhered to than the rule that a defendant cannot complain of the composition of the jury if he does not exhaust his challenges. In Benton v. State, 30 Ark. 32, decided in 1875, Chief Justice English pointed out that this rule had stood as a precept of criminal practice in this state, for a period of over 22 years. In a long line of cases, we have consistently upheld the rule to the present time. A cursory examination of our cases reveals over thirty-five criminal cases in which this rule has been cited and adhered to.” [Citing cases]

Appellant also contends in Point No. 2 that the court was held at a wrong and improper place and, therefore, without jurisdiction to try the defendant and the conviction resulting was a nullity. As pointed out before, an election was held to abolish the two districts and establish the county seat at Ash Plat. The results of this election came before this court in Vance v. Johnson, 238 Ark. 1009, 386 S. W. 2d 240, where this court held that only a majority of those voting was sufficient and the election effectively abolished the two districts and established the new county seat at Ash Plat. The election was held in 1963. Vance v. Johnson, supra, was decided on February 1, 1965 and according to the record nothing has been done to establish a new county seat at Ash Plat. All of the records of the courts are maintained and the business of the county is being conducted as before at the courthouses at Hardy and Evening Shade. Ark. Stat. Ann. § 17-201 et seq (Eepl. 1956) provide the procedure necessary for a change of county seats. Ark. Stat. Ann. § 17-208 provides as follows:

“Commissioners for preparation of new county seat — -Appointment and oath — Duties—Holding of court at new county seat. — When the deed to the new location shall have been executed and the title vested in the county, as provided in the preceding section, for the purposes and intention of this act [§§ 17-201 — 17-209], the county court is hereby authorized and empowered to appoint three [3] discreet citizens as the county commissioners, who shall take an oath to faithfully demean themselves as such, and who, under the orders and directions of the county court in pursuance of the provisions of this act, shall superintend and contract for, in the name and behalf of the county, the clearing, grubbing and laying off such new location into suitable and convenient town lots and the erection or purchase of all needful buildings on such new location, preparatory to the actual removal and change of the county seat; and as soon as such buildings shall have been made ready for the several courts holden at the county seat [,] the respective officers thereof and the archives thereof, the commissioners shall report the same to the County Court at the next term, then in that case the next and every succeeding term thereof shall be held at the new county seat, and the •Circuit Court and all other Courts for said county of superior or general jurisdiction shall be held at the new county seat, and all processes issuing therefrom shall be made returnable thereto.”

In Williams v. Reutzel, 60 Ark. 155, 29 S. W. 374, at page 158, we find:

“In every county of this state there is, and must be, a county seat. At it the county court is required to erect a good and sufficient courthouse and jail. The county, circuit and other courts held for the county must sit there. There is no other place designated by law for that purpose. The name ‘county seat’ indicates the object of its creation. It is, as defined by the Century Dictionary, ‘the seat of government of a county; the town in which the county and other courts are held, and where the county officers perform their functions.’ When the county seat of a county is removed, and the needful public buildings are made ready for the several courts holden at the county seat and the respective officers, the next and succeeding terms of the county court and the circuit court and all the other courts for said county of superior or general jurisdiction are required to be held at the new county seat.”

The court has recognized that in cases of emergency, such as the destruction of the courthouse by fire, the court itself may secure other quarters in the county seat for temporary use in the administration of justice. Mell v. State, 133 Ark. 197, 202 S. W. 33, citing Hudspeth v. State, 55 Ark. 323, 18 S. W. 183; Lee v. State, 56 Ark. 4, 19 S. W. 16, and Williams v. Reutzel, supra.

In the proper administration of justice, Sharp County would be without any place to hold court if the contention of appellant were correct. The record does not indicate or show why the county court of Sharp County has not acted under the clear mandate of the electors of the county to establish a new courthouse at Ash Flat but until that action is taken and the new courthouse certified by the commissioners as ready for use, then the courts will have complete jurisdiction to hold court at Hardy and Evening Shade as before.

Finding no error, the judgment of the Sharp Circuit Court is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Claude E. Brooks et ux v. T. D. Reedy, County Judge et al and J. H. Robinette, Intervenor
    5-3848
    407 S. W. 2d 378
    Opinion delivered October 31, 1966

      Robert W. Henry, for appellants.

      Francis T. Donovan, for appellees.
   Carleton Harris, Chief Justice.

The questions in this litigation, as presented to the trial court, were whether a certain road, either by dedication or by prescription, had become a public road, and, if so, whether the road subsequently, because of the acts of appellants, lost its character as a public way. Olaude E. Brooks and wife, appellants herein, instituted suit in April, 1965, against T. D. Reedy, the County Judge of Faulkner County, two of his road employees, and two landowners, seeking to enjoin the judge and road crew from working a particular roadway which runs through appellants’ lands; they further asked that the road be declared a private road. This roadway in question traverses the Brooks’ farm in a generally east to west direction, the west end thereof being at appellants’ home. In the briefs, it is referred to as the Oak Grove Road. To the immediate east (of the lands owned by appellants), Carrell E. White and wife own 160 acres, and J. H. Robinette owns 40 acres lying adjacent to, and north of appellants’ eastern-most lands. Robinette intervened in this lawsuit, and, like appellees, pleaded that the roadway is public, and both appellees and intervener asked that it be declared a public road, and that appellants be enjoined and restrained from blocking same. After a lengthy trial, in which over 30 witnesses testified, the Chancellor took the matter under advisement, and on September 15, 1965, rendered an opinion holding that the road in question was a public road; that there had been no abandonment of the road by the public, or county officials; that appellants should be enjoined from interfering with the maintenance of the road by the County Judge and road crew, and the complaint should be dismissed for want of equity. From the decree so entered, appellants bring this appeal.

Because of the view that we take, there is no necessity to discuss the question of whether the road under litigation ever reached the status of a public road. We think that the decisive question here is whether such road, if established as public, remained so under the facts hereinafter enumerated.

It might be stated, however, that we do not think the evidence established a dedication, and, in fact, the court did not so find. Accordingly, our discussion will be based on the premise that the testimony established that the roadway in question, through long use by the general public, i. e., by prescription, had attained the identity of a public thoroughfare.

The testimony reflects that there were three gates across this roadway, one at the east end of the land, one about halfway through the land, and one near the home of appellants at the west side of the land. There is a great deal of evidence that these gaps were placed across the road long years ago, and certainly, we think the preponderance of the evidence clearly established that, at least as far back as 1952, the date that Brooks took possession of the lands, fences were standing, with gaps or gates across the roadway. The testimony was in dispute as to whether these gates remained closed, or were, at times, open, the largest number of witnesses testifying that they were always closed, a few testifying that they were always open, and still others testifying that the gates were sometimes open, and sometimes closed. Many of the people who testified had occasion to use the road only a very few times, and this occurred over a period of several years. But it is, we think clearly established that the gates were in existence at all times from 1952 on, whether up or down.

In November, 1958, Mr. Brooks filed a petition with the County Court in which he asserted that the road was not a public road, and was used only once a year for a homecoming at the old schoolhouse, and he asked that the court enter its order, declaring the road closed. The County Judge entered the order, but it was subsequently voided by the Circuit Court for the reason that statutory requirements for closing a road had not been complied with. Appellees vigorously argue that, if Brooks was so certain that this was not a public road, and that people using the road were only doing so by Ms permission, there would have been no necessity to file the aforementioned application. Appellees construe this as an admission that the road was a public one. While, of course, this is a circumstance to be considered in connection with all other evidence, we do not consider this evidence to be decisive or conclusive in the matter. It is not unusual for one to take all steps possible to strengthen his position, even to the extent of taking unnecessary or superfluous action, but if this be a well-founded argument, there is an argument just as potent on the other side. In 1965, the County Judge entertained a petition (apparently instituted by some of appellee landowners) to open a new road approximately a quarter of a mile north of the Brooks home. Appellants argue that, if the road here in question was a public road, there was no reason to endeavor to open a new one just a quarter of a mile away.

Appellees also state in their brief:

“There, of course, is another important feature, and that is that the proof shows that the County of Faulkner had maintained this road through the years from 1908-1966.”

We do not agree with this argument for two reasons. In the first place maintenance of the road by the county does not make the road a county road. In Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18, we said:

“* * * Joe Price, a county employee, testified that the road had been worked occasionally by the county since 1935, but he did not know whether this was done because of the requests of property owners. The evidence does not reflect any order of the County Court establisMng this as a public road, and the mere fact that the roadway was occasionally worked by the county would not, of course, make it a county road.”

The proof as to the maintenance of tMs particular road since 1952 could hardly reach the category of even “occasionally.” The evidence reflects that that portion of the road on the Brooks property was graded in 1954, and again graded in 1959. An effort was made to grade the road in 1965, bnt Brooks would not permit this to be done. Also, the grading in 1954, and in 1959, by the county, was done at the request and for the convenience of citizens who desired to attend the annual homecoming, heretofore referred to. Grading a road every five or six years can hardly be classed as “maintaining a road. ’ ’

The learned Chancellor was correct in stating that Arkansas cases hold that, even where an easement has been acquired by prescription, the public and private individuals lose such easement, if the owner maintains gates for the period of limitations. He was also correct in stating that this is different from the decisions in some other states, which hold “that the maintenance of gates across the easement for the statutory period only gives the right to maintain the gates and does not terminate the easement.”

We think two of our cases are decisive and controlling in this litigation. The first is Porter v. Huff, 162 Ark. 52, 257 8. W. 393, decided in 1924. The other is Mount v. Dillon, 200 Ark. 153, 138 S. W. 2d 59, decided in 1940. The latest case quotes the first, as follo-ws:

“ * * * It is unnecessary to decide whether the public acquired a right to the use of the road as a public road by prescription or seven years adverse possession, for it lost any right it may have acquired by acquiescing in a permissive use thereof for a period of more than seven years after the road was closed by gates. When appellee inclosed his land and placed gates across the road, it was notice to the public that thereafter they were passing through the land by permission, and not by right. The undisputed evidence shows that these gates were maintained by appellee across the road for ten or eleven years, without objection on the part of the public.”

Apparently, in the case before us, the Chancellor’s holding was based upon the fact that he found that the gates, though present, were not always up, i. e., closed. Brooks testified that he never left the gates at either end down (or open), and, also, that he did not lock them until 1965. He said that he had never locked them before, “because they didn’t abuse my rights of the land;” that he had not objected to the public use as long as they “put the gaps up as they went through.” It may well be that those using the roadway did not always put up the gaps; however, be that as it may, the important fact is that the fence and gates were in place for the statutory period, and, under the language in Mount v. Dillon, supra, the fact that the gates were not always closed does not make any difference. In detailing the facts of that case, this court recited from a stipulation as follows:

“The road crosses the lands of the plaintiffs, so that each of the plaintiffs owns lands on both the north and south side of said road and the said road terminates at the east line of the Woods’ property, where it intersects the above-mentioned public road and mail route; that from 7 to 15 years ago, wire gates were placed across the road in three places, namely: at the east side of Woods’ property, at the boundary line between the Woods’ property and the Mount property, one-quarter of a mile west from the first gate and another gate one-quarter of a mile west from the last-mentioned gate. These gates were so constructed that they could be opened at one side and permit passage through the same. Anyone traveling the road during this period would open and close these gates in passing through. The gates were erected and maintained by the plaintiffs. The defendants, who live in the vicinity, are the principal persons who have occasion to use said road; that said gates did not remain closed continuously, hut were left open during certain seasons of the year, especially during winter months.

“Some time in March, 1939, a question arose between the plaintiffs and the defendants as to the right of the plaintiffs to maintain said gates across said road, whereupon the plaintiffs fastened said gates so that they could not be opened and closed, thus obstructing passageway through said road and making passage impossible without cutting and removing the wire fence.”

The italicized portion makes clear that the gates were not always closed, and the word “especially” likewise shows that the gates were open at times other than the winter months. The Mount case was decided here in 1940, so it is equally clear that the rights of Mount, as declared by this court, were not based upon the fact that the gates were kept fastened for as much as seven years.

We hold that the gates in question were placed on the roadway at least as early as 1952, and that they have been maintained since that time. As stated in Mount:

“* * * When appellee inclosed his land and placed gates across the road, it was notice to the public that thereafter they were passing through the land by permission, and not by right.”

The decree is reversed, and the cause remanded for further orders not inconsistent with this opinion.

       Peftinent portions of the trial court’s opinion are as follows: “This is another in a series of cases between these parties, ostensibly about the road, but actually involving other matters. However, the case is presented as a road question and will be decided as such. “The law of this state is in an unfortunate condition in that the cases hold that the public and private individuals lose their easements, if not formally dedicated, by the maintenance of gates for the period of limitations. This makes necessary lawsuits between people' who have no objection for gates being maintained for fear of losing their easement and as a result of loss of population, depreciates the value of isolated tracts of land. The law as I understand it in other states is that the maintenance of gates across the easement for the statutory period only gives the right to maintain the gates and does not terminate the easement.
      “Without reciting the applicable cases with which all of you are acquainted, I am making the following findings:
      1) The road in question is a public road connecting two main county roads and running past the old Oak Grove school house. It was established at least as early as 1908 according to the evidence. In view of later findings, it is not necessary that I determine whether this road was established adversely or by a dedication. It is true that there is no formal dedication of record, but I cannot conceive of the public adversely establishing this road to the school house and the houses along the road. It appears far more probable that the land owners gave the road and that there was an acceptance by the public even though not recorded.
      2) The evidence shows no abandonment of the road by the public or the county officials charged with the duty of maintaining the road and bridges.
      8) The gates or wire gaps maintained by plaintiffs and their predecessors in title have not been maintained with such continuity and intent for any definite seven-year period such as would destroy the rights of the public to travel and maintain the road. * * * Any interruption of the maintenance of the gates, such as leaving the gates down in the winter so that the cattle could use the open range, or the use of the road at a time that the gates were down would be such as to make maintenance of the gates for a new period necessary.”

      When the farm was purchased in 1952, it was purchased in the name of appellant’s (Mr. Brooks’) father, for the reason, according to Brooks, that he did not have the income to obtain the loan in his name. The witness stated that he had a contract with his father to purchase the place, and that he had made all of the payments on the father’s purchase, except for one or two payments initially made by the elder Brooks to George Jones, from whom the farm was purchased. This is not disputed. Brooks obtained record title in 1961.

      These gaps were made of two posts with four or five wires between them, and were laced with wire.

      It does not appear that Brooks consulted or retained an attorney on this occasion.

       Brooks, in Ms petition to the County Court, stated that he had no objection to the road being- used for that purpose.

       Emphasis supplied.