author: John A. Fogleman, Justice. Paul Ward, Justice.

text:
    B .E. Hawkins v. Delta Spindle of Blytheville, Inc.
    5-4734
    434 S.W. 2d 825
    Opinion Delivered December 16, 1968

      Gardner & Steinsiek for appellant.

      Reid, Burge & Prevallet for appellee.
   John A. Fogleman, Justice.

Appellant seeks reversal of a judgment against Mm for $941.25 and interest, for repairs by appellee to a mechanical cotton picker owned by appellant Hawkins. Appellant used the machine in custom cotton picking for others. Appellee alleged that the amounts charged for the goods, parts, materials and labor were fair and reasonable market prices which appellant agreed to pay. In appellant’s answer and counterclaim, he denied that he was indebted to appellee in the amount alleged, and sought to recover damages for failure of appellee to put the cotton picker in serviceable condition. He alleged that he was damaged in the sum of $1,100 because he was unable to use the machine for three days during the 1966 harvest while it was being put in operating condition. In compliance with an order of the trial court, appellant amended his pleading to allege his version of the agreement with reference to repair of the picker, and to state his contention concerning subsequent repairs necessary to put the machine in operating condition. He stated that his damages arose out of his inability to use the macMne for three days in harvesting for one Byron Moore, Sr.

Glen Sanders, store manager for appellee, found the account of Hawkins in the office records when he came to its Blytheville shop in April of 1966. He knew nothing of an agreement for the repairs. Mr. Sanders is a mechanic. He also found the cotton picker in the shop and supervised its repair. He prepared an invoice from tickets showing charges of $941.25. He stated that the account was due October 15, 1966, and first called it to appellant’s attention in late November 1966. On that occasion he called Hawkins to his office and they discussed the account. He denied that Hawkins, at that time or at any time, had mentioned the failure of the machine to function properly. He testified that Hawkins first told him that the picker was not working properly sometime in December.

Sanders also testified that field adjustments are necessary following shop repairs to any such machine. According to him, settings and adjustments of certain working parts cannot be made in the shop. He added that whenever a cotton picker sits without use, rust accumulates in the water lines, necessitating their being flushed before the machine is used. The moisture control bars were not checked by appellee.

Although Sanders never advised appellant that it was company policy to send a repairman to the field to make the necessary adjustments, he testified that this is a recognized service in this area.

Hawkins testified that one Johnnie Lendennie, then an employee of Delta Spindle of Blytheville, Inc., solicited the job of repairing the picker for appellee in January of 1966. Hawkins said he agreed, with the understanding that all things necessary to prepare the machine for the 1966 harvest be done. According to him. nothing was ever said about the price he was to pay He claimed to have seen his cotton picking machine ir appellee’s shop several times over a three-month period without any repair work having been done on it.

The first work appellant was called upon to do in 1966 was in early October, when he was offered $2.0C per hundred pounds for harvesting* the 300-acre cotton crop of Moore. Having no water supply where he stored his machine, Hawkins stopped at Tractor Supply, where Johnnie Lendennie was then employed, to get water. He was unable to get water to the moisture columns because a water valve failed to function. After Lendennie repaired this, other parts in need of repair were found. According to appellant, this was not a mere matter of adjustment, but was work which he had contracted to be done by appellee. Hawkins said that he didn’t call appellee because he was aggravated and in a hurry. Instead, he directed Lendennie to proceed with the necessary repairs. This took three days, during* which time other machine operators worked in the Moore fields. Hawkins testified that he could have grossed $420 and netted $380 per day by operating* his machine during this period. He did work in the Moore crop for three days, earning $1,250. The repairs made by Tractor Supply cost him nothing. He professed that he had no knowledge of appellee’s policy to make adjustments in the field.

Appellant had not received any statement from appellee for the work done by it until after these repairs had been made by Tractor Supply. "When Saunders called him, Hawkins went to appellee’s place of business. According to him, he then advised Sanders of appellee’s failure to properly repair the machine. He related that the parties were unable to come to any agreement after a similar conversation in December.

Lendennie corroborated appellant as to the deficiencies in the repair of the cotton picker and as to the work necessary to put it in operating condition. He admitted that the five hours’ work required could have been done in one day rather than over a three-day period, and, with a crew like that of appellee’s, in one-half day.

Charles Moseley, an employee of a competitor of appellee, confirmed that it was customary for an employee of the firm repairing a cotton picker to be sent to the field with it, not only to make adjustments, but to test it. He testified that it was very seldom that such a machine would function properly after repair without field adjustment.

The court directed a verdict for appellee on the complaint in the sum of $941.25. It also directed a verdict for appellee on the counterclaim of appellant for want of any agreement between the parties with regard to special losses or damages or notice to appellee of the failure of the machine to function.

■ Appellant had moved for a directed verdict on appellee’s complaint for the reason that there was no evidence that the charges were fair, just, and reasonable for the work done. This motion was denied. This was error for which we must reverse the judgment.

Where labor or material is furnished by a party and no price is agreed upon, the law will imply an agreement to pay what it is worth. Dixon v. Kittle, 109 Ohio App. 257, 164 N.E. 2d 806, (1959). If a contract makes no statement as to the price to be paid for services, the law invokes the standard of reasonableness and the fair value of the services is recoverable. Weber v. Billman, 165 Ohio St. 431, 135 N.E. 2d 866 (1956). See, also, 17 Am. Jur. 2d 782, Contracts, § 344; 58 Am. Jur. 542, Work & Labor, § 39. This principle has been applied by this court in cases involving professional services. Bayou Meto Drainage Dist. v. Chapline, 143 Ark. 446, 220 S.W. 807; White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W. 2d 672. There is no reason why it should not be applied in the circumstances existing here. The burden was upon appellee to show that the amount for which it sought recovery was the fair and reasonable value of the parts, materials and labor furnished. It failed to do so.

Appellee contends, however, that there was an account stated because appellant did not make any complaint about the statement rendered. The parties had not the sort of mutual dealings out of which the normal account stated arises. Appellee did not bring its action on an account stated, but actually alleged that its charges were the fair and reasonable market prices for the labor, parts, goods and materials furnished. Assuming, without deciding, that there is evidence tending to show an account stated, the retention of the statement by appellant without complaint is only some evidence of an account stated which would, at the most, raise a jury question. Hamilton Brown Shoe Co. v. Choctaw Merc. Co., 80 Ark. 438, 97 S.W. 284. See, also, May & Ellis Co. v. Farmers Union Merc. Co., 120 Ark. 316, 179 S.W. 490.

Appellee also argues that the question of reasonableness of the amount charged was never placed in issue. We find the denial in the answer that appellant was indebted to appellee in the amount set forth in the complaint to be sufficient to raise the issue.

Appellant also contends that the trial court erred in directing a verdict against him on his counterclaim. In the absence of any allegation or proof that special notice was given to one repairing a machine that if it failed to function properly after the repairs were made damages such as those sought would result, there can be no recovery. Interstate Grocer Co. v. Namour, 201 Ark. 1095, 148 SW. 2d 175. See, also, Bay Aviation Services Co. v. Southland Aviation Co., 211 F. Supp. 125 (W.D. Ark. 1962). Appellant contends, however, that appellee knew that he used his cotton picker for custom harvesting, and this knowledge, coupled with the nature of the machine to be repaired, is sufficient to charge appellee with the required notice. We do not agree. The rule stated in Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, 79 S.W. 1052, and consistently followed by this court, is restated in Lamkins v. International Harvester Co., 207 Ark. 637, 182 S.W. 2d 203. It requires not only that there must be knowledge on the part of the one to be charged at the time of the contract of the special circumstances out of which the damages arise, but also that the facts and circumstances be such as to make it reasonable to believe that he tacitly consented to be bound to more than ordinary damages in case of default on his part. No such allegation is found in the answer and counterclaim, as amended. The evidence adduced was not sufficient to support such a finding, therefore, we find no reversible error on this point.

Reversed and remanded for a new trial.

Ward, J., dissents.

Paul Ward, Justice.

I do not agree with the majority.

Considering the pleadings and the undisputed facts in this case I view it as two separate causes of action. When so viewed, when applied to the applicable law, the trial court reached the correct conclusion.

Cause One. Appellee, at appellant’s request, made numerous repairs on the machine in question. Appellee introduced in evidence exhibit No. 1 (Tr. 65) which sets forth fifty four repair items (ranging in price from seven cents to $69.16). Appellant does not anywhere contend all these repairs were not made, that they were not, properly made, or that the price was not reasonable. Under the holding in Griffin v. Hicks, 150 Ark. 197 (p. 203), 233 S.W. 1086 the above constituted “an account stated”. Therefore, under the record here, the trial court was correct in directing a judgment in favor of appellee.

Cause Two. In appellant’s cross complaint he contended he was damaged to the extent of $1,100 because the machine was not operable on a certain day in October. Appellant contends he could have made that much profit if he could have used the machine at that particular time. It is conceded by appellant that he did not notify or warn appellee there was a probability of such special damages. That being the situation appellant could not recover under the holdings in Interstate Grocery Company v. Namour, 201 Ark. 1095, 148 S.W. 2d 175 and in Lampkins v. International Harvester Company, 207 Ark. 637, 182 S.W. 2d 203.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    John W. Mason, et al v. Urban Renewal of North Little Rock, Ark.
    5-4753
    434 S.W. 2d 614
    Opinion Delivered December 16, 1968

      U. A. Gentry for appellants.

      Byron R. Bogard for appellee.
   John A. Fogleman, Justice.

John W. Mason, Willie Mason, Lee Edward Gray, Bernice Allen (nee Gray), Ruby Gray and Yasteen Gray Acklin appeal from an order of the chancery court entered on June 11,1968 denying their motion to vacate certain orders and decrees of said court. They contend that the decrees were void for want of jurisdiction. Á history of the litigation in which the decrees were rendered is essential to an understanding of the issues.

A decree of divorce was granted Besscie Mason in her suit against John (W.) Mason in the Pulaski Chancery Court in January 1958. The court retained jurisdiction for the purpose of settling the rights of the parties in certain real estate. Shortly after this decree was rendered, Besscie filed an amendment to her complaint for cancellation of certain deeds, alleging that John Mason had fraudulently induced her to join with him in the deeds conveying certain lots to his father (John T. Mason) and his mother (Eosie Mason), by representing that the instruments were mortgages. She alleged that John T. Mason had died, leaving the appellant, John W. Mason, and a brother surviving as his only heirs.

On February 10, 1964, appellee, Urban Benewal Agency of North Little Bock, filed an eminent domain action for the taking of the same lots in Pulaski Circuit Court. Besscie Mason and John W. Mason, Willie Mason and the Unknown Heirs of John T. Mason were made defendants in this action. Besscie Mason filed a motion to transfer this suit to equity, alleging that the Pulaski Chancery Court had retained jurisdiction in the divorce action to determine the rights of the parties in the real estate then taken and that she was the equitable owner of the property. The motion, which was granted, included a prayer that the actions b.e consolidated. Besscie Mason alleged in her motion that answers to her amendment in the divorce suit had been filed by John W. Mason and Bosie Mason but the matter had lain dormant until the filing of her motion to transfer and consolidate. On March 25, 1965, a decree was entered in the chancery court fixing the value of the property at $8,500 and vesting title in the condemnor. Appearanees of John W. Mason and Willie Mason by attorneys W. J. Walker and W. W. Shepherd and Resscie Mason by her attorney were noted in the decree. The Unknown Heirs of John T. Mason defaulted. Rosie Mason had died before the entry of this decree, but the cause had been revived against her heirs John W. and Willie Mason.

Final decree denying cancellation of deeds on the amended complaint of Resscie Mason was entered April 17, 1986. In this decree the interests of the parties in the compensation awarded for the property were determined, and the clerk directed to pay certain sums to the attorneys for the property owners and disburse the funds remaining to the property owners. The appellants who were not original parties to either action had then intervened as the Unknown Heirs of John T. Mason and Rosie Mason and appeared by their attorneys. Each of the appellants was allotted a share of the compensation awarded. The disbursements from the award included payments to the attorneys for appellants for their fees in the case. Disbursements of a part of the balance of the allotted shares were made to each of the appellants, except John W. Mason. His share was disbursed to an intervening creditor who had obtained a judgment against him, to another creditor, to Resscie Mason on account of her claim to personal property arising out of the divorce, and to his brother Willie to whom he had conveyed his interest in a part of the real estate.

It. is the contention of appellants that the order transferring the condemnation proceeding to the chancery court and the subsequent orders and decrees of that court were void. They base this contention upon the argument that the equity court acquired no jurisdiction because there had been no challenge to the right of the Urban Renewal Agency to take the property by eminent domain. They also contend that the action taken deprived them of their right to a jury trial in violation of the state and federal constitutions.

We find it unnecessary to consider appellants’ contentions because each of the appellants shared in benefits from the decrees of the trial court. One who shares in the fruits or benefits of a judgment or decree is es-topped to challenge its validity, even where there is a want of jurisdiction of the subject matter. Morgan v. Morgan, 171 Ark. 173, 283 S.W. 979; Grain v. Foster, 230 Ark. 190, 322 S.W. 2d 443; Anderson v. Anderson, 223 Ark. 571, 267 S.W. 2d 316; Burgess v. Naill, 103 F. 2d 37 (10th Cir. 1939); 49 CJS 884, Judgments, §453. For this reason, the order of the trial court is affirmed.


author: Conley Byrd, Justice.

text:
    Wendell R. Gathright v. State of Arkansas
    5385
    435 S.W. 2d 433
    Opinion Delivered December 16, 1968
    [Rehearing denied January 27, 1969.]

      Jack Holt, Sr. for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellee.
   Conley Byrd, Justice.

Appellant, Wendell R. Gathright was charged, together with Charles Austin Hobbs, with grand larceny of certain copper wire belonging to the Chicago Rock Island and Pacific Railroad Company exceeding thirty-five dollars in value. A jury found Gathright guilty and fixed his punishment at three years. For reversal, he relies upon the following points:

I
The trial court erred in not granting the motion of appellant’s attorney for a continuance.
n
The trial court erred in denying motion for a directed verdict at the conclusion of the State’s case inasmuch as the State failed to establish ownership and/or identity of the property alleged stolen.
HI
The prosecuting attorney committed prejudicial error in closing argument by commenting on the appellant not taking the stand in his behalf.
IV
The court erred in giving court’s Instruction No. 1 and on refusing to give appellant’s Requested Instruction No. 1.

The record shows that the railroad had lost approximately ten thousand pounds of signal and communication wire along its right of way from January 29, 1968, through February 18, 1968, in the area from Proctor to Forrest City. The gauges of wire taken consisted of numbers six, ten and nine. The number nine wire was not coated. Some two thousand pounds of this wire was taken from the Black Fish Lake and Heth, Arkansas, area over the weekend of February 17th and 18th. The replacement value of the wire is approximately one dollar per pound and the salvage value is approximately fifty cents per pound.

The record shows the appellant and Hobbs had registered at Jim’s Motel at Black Fish Lake February 17th under the name of Johnny Williams and had shown the make of their car as being a 1947 Ford Pickup, License No. A22076. Merchants in the area had observed them driving the same pickup with knobby tires. Because of the nature of their boots, one of the merchants asked them, “Well, are you about — you boys about to get through with the wire?” The merchant says that one of them said, “Well no, we’ve got quite a little of it left.”

When Appellant and Hobbs were arrested in Hazen, they were driving the same 1947 Ford pickup except that the license number was “A-17086”. Under some bundles of rock wool insulation bats in the back of the pickup, the officers found some twenty to twenty-five roles of number nine wire, pole climbers and two pairs of wire cutters. From the pockets of both Appellant and Hobbs, the officers removed magnets. The boots worn by Appellant and Hobbs matched the boot tracks at the poles where the wire had been removed on the 17th and 18th.

On Appellant’s person at the time of his arrest was a registration for a 1964 Ford pickup bearing license No. A-17086, being the license plate then on the 1947 Ford pickup in which he was traveling at the time of arrest.

The record shows that Appellant and Hobbs were arrested on February 23,1968. The information charging them with grand larceny was filed April 9, 1968. At the arraignment Appellant and Hobbs were presented by Mr. Willis Lewis and their case was then set for trial on April 29, 1968.

I

On the trial date Mr. Holt, Appellant’s present counsel, appeared as counsel for both Appellant and Hobbs and moved for a continuance because he had not been employed until April 22nd and had not had sufficient time to prepare for trial. No showing was made why the switch in counsel and under the circumstances we find that the trial court did not abuse its discretion in denying the motion for continuance. Turner v. State, 224 Ark. 505, 275 S.W. 2d 24 (1955). We have not overlooked the fact that Appellant was in prison at the time present counsel was employed, but the record, including the motion for new trial filed June 6, 1968, shows no facts from which we can find any prejudice to Appellant because of the refusal of the continuance.

H

Under the second point for reversal, Appellant makes two arguments — i.e. (1) there is no showing do facto or otherwise of the corporate existence of the Rock Island Railroad, and (2) that the agents for the Railroad were unable to identify the property they had lost.

The first contention was not raised in the trial court nor in the motion for new trial and cannot be raised for the first time on appeal.

The second contention is not supported by the record. The evidence shows that they had in their posession wire of the kind and gauge removed; that they had the paraphernalia for removing the wire; that their boots matched the tracks around the poles from which the wire was removed; that the merchants in the area considered them to be “highline boys” because of their boots; that they registered under fictitious names; and that they switched license plates on their vehicle from time to time. We hold the evidence sufficient to establish the identity of the property stolen from the railroad.

Ill

In his opening statement, Counsel for Appellant and Hobbs stated:

“The defendant, Wendell Gathright, for about seventeen years was a member of the Armed Forces with a commendable record. That after he had served honorably for his country he secured a job at Little Rock Air Force Base at a salary over $9,-000.00 ■ a year. That during the acquaintance he had with defendant, Hobbs, Hobbs and his wife became separated. That Hobbs had heard that she was in Memphis, Tennessee, and he wanted to go over there and see if he could locate his wife for the purpose of trying to perfect a reconciliation.
“They went to Memphis and failed to find Hobb’s wife, then went to a beer tavern at which time a fellow told them that there was a colored man that had a bunch of copper wire he would like to dispose of. They were interested. They then went out and made a deal with this Negro to buy the wire and that is the wire that is going to be in question. After buying the wire, they stopped at a Jim’s Motel because the truck was broken down and that occasioned them to have to stay overnight before going back to Little Rock.
“This is a case being tried solely upon suspicion, conjecture without the necessary elements of facts and the law toward an honest conviction.
“They can tell this story much better than I can.”

With reference to the prosecutor, Mr. Loyd Henry’s closing statement, the record shows:

‘£ (Mention was made by Mr. Henry to the effect the jury was told by Counsel for Defendants in the opening Statement that they would be told why the Defendants were in Memphis, that something had been said relative to a separation, and there was no testimony given regarding this.)”

We are unable to find that this was a comment upon the failure of Appellant and Hobbs to take the witness stand in their own behalf.

IV

On the issue of circumstantial evidence Appellant and Hobbs asked Court to give their requested Instruction No. I as follows:

“In this case, the State relies entirely on circumstantial evidence. You are instructed that it is competent for the jury to convict on circumstantial evidence alone, but in order to do so the circumstances solely relied upon must be consistent with the Defendants’ guilt and entirely inconsistent with the innocence of the Defendants and any other reasonable hypothesis.”

The trial Court refused the instruction and gave its own instruction, to-wit:—

“ There is some circumstantial evidence introduced in this case. You are instructed that circumstantial evidence is legal evidence, but when tbe State relies wholly or in part upon circumstantial evidence for conviction, it must be of such a nature that it is consistent with the guilt of the Defendants when considered along with all other evidence in the case and is inconsistent with any other reasonable hypothesis.”

The trial court having given a correct instruction on circumstantial evidence, committed no error in refusing Appellant’s instruction, Smith v. State, 227 Ark. 332, 299 S.W. 2d 52 (1957).

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Dr. Kern E. Chester v. Arkansas State Board of Chiropractic Examiners
    5-4690
    435 S.W. 2d 100
    Opinion Delivered December 23, 1968

      Rhine & Rhine and Ward & Mooney for appellant.

      Shackleford & Shackleford for appellee.
   Carleton Harris, Chief Justice.

On March 7, 1967, the Arkansas State Board of Chiropractic Examiners, appellee herein, conducted a hearing wherein Dr. Kern E. Chester, appellant herein, was charged with unethical advertising. Exhibits were offered which consisted of various communications written by Dr. Chester, in which, inter alia, he stated that X-rays and examinations were free of charge. Chester was afforded the right to rebut or explain the charges presented against him, but appellant stated that he would continue the advertising. On April 24, 1967, the board advised Chester that it was reopening the case, and that there was sufficient evidence, if not rebutted or explained, to justify appellee in suspending or revoking his license. The letter explained that the evidence was in the nature of written communications and advertising, including free X-rays and examinations. Appellant was told that he could obtain a hearing by request, and such request was made, the hearing being conducted on Sunday, May 28, 1967. Chester was present with his attorney but did not testify. The president of the Arkansas Chiropractic Association, and the chairman of the Ethics Committee of the Arkansas Chiropractic Association, were the only witnesses at the hearing, though numerous communications from Dr. Chester to other doctors and to his patients, the last advertising free X-rays and examinations, were offered in evidence. The board entered its order on June 15, 1967, finding:

“That Dr. Kern E. Chester has published advertising that contains misleading, distorted and biased statements and announces free X-rays and examinations which is unethical advertising and unprofessional conduct.”

Thereupon, the board suspended Chester’s license to practice for a period of 60 days, and further ordered that he be placed on probation for a period of 2 years. The order concluded with a notice to appellant that he had the right of appeal from this final decision of the board, and the statutory requirements for appeal were set forth.

Early in September, the board filed a complaint in the Pulaski County Circuit Court, setting out the facts previously stated, and the further fact that no appeal had been taken by Chester from the order. The court was asked to order Dr. Chester to comply with the board directive. Thereafter, appellant filed his motion to dismiss the complaint, asserting that the board’s order was not a lawful one, because it had exceeded its authority in suspending his license, and that it had no power to determine that free X-rays and examinations constituted unethical conduct. The motion was denied, and appellant then filed his answer wherein he asserted that there was no legal basis for the board to hold the hearing; that Chester was not charged with any offense which violated the provisions of the act relating to the practice of chiropractics; that the hearings were not held in accordance with the law, and that the purported hearing on May 28 was absoluately void.

On November 30, 1967, the board moved for summary judgment, including with the motion a transcript of the proceedings at the May hearing. No response was filed, and on March 20, 1968, the court granted the motion, and entered the judgment sought, directing Chester to comply with the order of the board. From the judgment so entered, appellant brings this appeal.

Several points are urged for reversal, but appellee takes the position that none of the points which relate to the board hearing can be relied upon by appellant, since he did not appeal from the board’s order. Appellee contends that the matter is res judicata and calls attention to the provisions of Act 103 of 1963, which is the controlling act in this litigation. Section 16 of that act provides:

“Failure to file such notice of appeal in the manner and within the time stated shall operate as a waiver of the right to appeal and shall result in the decision of the board becoming final; except that for good cause shown, the judge of the circuit Court may issue an order permitting a review of the board decision notwithstanding such waiver.”

Appellee says that the doctrine of res judicata has been held to apply to decisions of state boards, and cites Bockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S.W. 2d 826 (1958). This case, because of the factual situation there shown, is not clear authority for appellee’s position, but if we assume, without deciding, that the case is in point, the litigation is not decided, for a collateral attack can be made upon a void judgment. McClellan, Mayor v. Stuckey, 196 Ark. 816, 120 SW. 2d 155. The question then is whether the order rendered by the State Board of Chiropractic Examiners was void. Since we consider the answer to that question to be definitely in the affirmative on one point raised, there is no necessity to discuss other arguments advanced by appellant in support of his position. We hold that the judgment was void because the hearing was held on Sunday.

First, let it be pointed out that the very first section which appears in our statutes, vis., Ark. Stat. Ann. § 1-101 (Repl. 1956), provides that the common law of England, insofar as the same is applicable and of a general nature, and not inconsistent with the constitution and laws of the United States or the constitution and laws of this state, shall be the rule of decision in this state, unless altered or repealed by the General Assembly. This statute, in substance, was a part of our law while we were still a territory, and it was after-wards reenacted as a part of the law of this state. Under the common law, Sunday was dies non juridicus. In 50 Am. Jur. Sundays and Holidays, § 73 at Page 858 (1944), we find:

“*** In jurisdictions where the common law prevails, the right or authority to perform any judicial act on Sunday must be derived from a statute conferring that right or authority, and a statute conferring such right should, like any other statute in derogation of the common law, be strictly construed.”

As early as 1838, approximately two years after the admission of this state into the Union, a statute relative to judicial acts on Sunday was enacted. Prom that date until 1955, the statute remained unchanged, and read as follows:

“No court shall be opened, or transact business on Sunday, unless it be for the purpose or receiving a verdict or discharging a jury ; and every adjournment of a court on Saturday shall always be to some other day than Sunday, except such adjournment as may be made after a cause has been committed to a jury; but this section shall not prevent the exercise of the jurisdiction of any magistrate when it may be necessary, in criminal cases, to preserve the peace or arrest the offenders.”

In 1955, Act 30, amending this statute, was passed, making no change in the above language, but adding the following:

“nor shall this section inhibit the exercise of the jurisdiction of any magistrate on Sunday in disposing of misdemeanor cases where the defendant desires to and does enter a plea of guilty or a plea of nolo contender [contendere].”

The original section and the amended section now comprise the whole of Ark. Stat. Ann. § 22-120 (Repl. 1962). It is thus apparent, under Sections 1-101 and 22-120, that no judicial acts can be performed in this state on Sunday, except as specifically authorized by the last section. 'This court, in Eyer v. State, 112 Ark. 37, 164 S.W. 756, commented:

“At common law Sunday was not a judicial day, and all proceedings had on that day were void.
That is so under our statutes except as to proceedings which the statutes authorize on that day.”

While appellee, as to this contention by appellant, simply relies entirely upon the fact that no appeal was taken from the board order, one might, at first blush, argue that the order by the State Board of Chiropractic Examiners is not affected, since the board is not a court, nor is it generally thought of as a judicial body, but such argument, if made, would be erroneous. In 26 A.L.R. (2d Series), at Page 996, there appears an annotation on the subject of the validity of administrative proceedings conducted on Sunday. On Page 997, it is stated:

“Although there is some authority which indicates the contrary, the judicial or quasi-judicial proceedings of administrative authorities have been definitely held to come within the common-law rule rendering void judicial proceedings conducted on Sunday.
“At common law Sunday is dies non juridicus except for the performance of purely ministerial acts and a judgment rendered on Sunday in a judicial or quasi-judicial proceeding is void. The distinction between a judicial and a ministerial act is whether the act involves, or does not involve, discretion. The judicial function consists of (a) ascertainment of facts, (b) application of law to the facts and (c) the rendition of a judgment or order based on the legal effect of such facts. An act is a ministerial act only when the record is in snch condition that there is no discretion to be exercised on the part of the board except to perform a particular act or duty in but one way, as a legal and obligatory duty of the office.”

One of the leading cases in this field is the case of Texas State Board of Dental Examiners v. Fieldsmith, 242 S.W. 2d 213. There, the State Board of Dental Examiners heard the evidence against Fieldsmith, a dentist, on a Sunday, the evidence presenting a question of fact to be determined, and the board took the case under consideration. Over a month later, they entered an order (not on a Sunday) finding Dr. Fieldsmith guilty of the charge of unprofessional conduct in the practice of dentistry, and suspended his license to practice for a period of 60 days. Fieldsmith appealed this order to the District Court of Dallas County, and that court entered a summary judgment, setting aside the board’s order. The board then appealed to the Court of Civil Appeals of Texas (Dallas Division), and that court affirmed the District Court, stating:

“A judgment rendered on Sunday in a judicial or quasi-judicial proceeding is void. [Citing cases.] But appellant asserts that a setting of a hearing on, and reception of evidence on, Sunday is a ministerial act and not a judicial or quasi-judicial act.
“Under the common law as adopted in Texas, Sunday was dies non juridicus. The exception was the performance of purely ministerial acts. The distinction between a judicial and a ministerial act is whether the act involves, or does not involve, discretion. [Citing cases.]
“The judicial function consists of (a) ascertainment of facts, (b) application of law to the facts, and (c) the rendition of a judgment or order based on the legal effect of such facts.
‘ ‘ An act is a ministerial act only when the record is in such condition that there is no discretion to be exercised on the part of the Board except to perform a particular act or duty in but one way, as a legal and obligatory duty of his [sic] office.
“Under the record here we are of the opinion that the reception of evidence and the investigation of facts by the Board involved discretion and was a quasi-judicial act. [Citing case.]
“The setting and hearing on Sunday were, therefore, void acts.”

Certainly, in the case before us, no ministerial act was being performed; rather, the hearing conducted by the board dealt entirely with ascertaining facts, and an order was subsequently rendered on the legal effect of such facts.

Under our statute, as interpreted by this court, the order entered as a result of the hearing on Sunday, May 28, 1967, was void.

Reversed.

      This is also disputed by appellant who asserts that the controlling statute is Act 434 of 1967, which repealed Act 103. Under the view that we take, there is no need to discuss this question, though it might be pointed out that Act 434 contained a savings clause which provided that the repeal should not affect proceedings pending under 103 on the effective date of 434.

      A non-judicial day.

       Emphasis supplied.


author: Carreton Harris, Chief Justice.

text:
    Reserve Life Insurance Company v. Clifton Baker
    5-4756
    435 S.W. 2d 780
    Opinion Delivered December 23, 1968
    [Rehearing denied January 13, 1969.]

      Shackleford & Shackleford for appellant.

      Paul K. Roberts for appellee.
   Carreton Harris, Chief Justice.

On August 17, 1965, appellee, Clifton Baker, applied to Reserve Life Insurance Company, appellant herein, for a hospital and surgical expense policy. The application was completed by Pat Curry, an agent for appellant, signed by appellee, and forwarded on to the company office in Dallas. Thereafter, a policy, as sought, was issued to Baker. On June 6, 1966, appellee entered a hospital for prostatitis, and hospital and surgical expenses were incurred as a result of surgery on the prostate gland by endoscopic means. A claim for benefits was filed by Baker, but the company denied liability, asserting that appellee had misrepresented the state of his health in answering certain questions in the application, it being the position of the company that it would not have issued the policy, had it known that Baker had chronic prostatitis in February, 1960. A company official testified that the questions on the application affected appellant’s decision on whether to accept the risk, and that the decision to issue the contract was materially affected by the answers given by applicant to questions No. 6 and No. 8. These questions will be fully set out subsequently. Upon refusal of the company to pay the claim, Baker instituted suit in the Bradley County Circuit Court, and the case was tried by the court, sitting as a jury. Judgment was entered for appellee in the sum of $470.00 for benefits under the policy, together with 12% penalty, an attorney’s fee in the amount of $250.00, and costs. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the trial court erred in failing to hold the policy void for misrepresentation; that there was no substantial evidence to support the judgment; and that the court erred in awarding penalty and attorney’s fee.

Question No. 8, the answers to which are principally relied on by appellant for reversal, reads as follows:

“Have you or any Member of the Family Group ever had, or ever been advised such person had, any of the following:
(a) Any disease of the heart, kidneys, stomach, urinary or gall bladder, rectum or respiratory system?
(b) High blood pressure, paralysis, arthritis, syphilis ?
(c) Cancer, diabetes, hernia, goitre, or asthma?
If answer is ‘yes,’ give full details.”

All of these questions were answered, “No.” The evidence reflects that in February, 1960, Baker had trouble with his prostate gland, and was treated by Dr. Bill Whaley, a physician at Warren. Dr. Whaley’s records reflected that he had given Baker a prostate massage on three occasions during that month. Dr. Whaley did not see appellee for that condition at any subsequent time. In arguing this case, counsel do so on the basis that the question asked in (a), “urinary or gall bladder,” referred to the urinary system. For instance, from appellant’s brief:

“In concluding that the prior diseased condition of the urinary system was too remote to be considered, the trial court erred.”

Gladys Anderson, Vice President in charge of the Disability Underwriting Department of the company, testified that if the application had shown that appellee had had chronic prostatitis, or received medical treatment for this in February, 1960, the application would have been rejected, the medical history not meeting the underwriting requirements for the type of policy issued to Baker.

In its brief, appellant then states:
“Under these circumstances, the trial court failed to consider the decisive issue, whether, under the circumstances, the false statements of the appellee’s chronic prostatism precludes recovery.”

It is true that no information was given relative to any trouble with the prostate, though as already stated, the record reflects that, in 1960, Baker had been treated for prostatitis (though he denied having received treatment)- — but we see no need to discuss the question of misrepresentation, because actually, there is no question relative to the prostate or prostatitis. It will be noted that Question 8(a), the pertinent question in this litigation, relates in every respect to organs of the body, except the very last question which is, ‘ ‘ respiratory system.” Other than the last, each refers to a particular organ, and each reference to a particular organ is set off by a comma. The clause involved in this litigation is “urinary or gall bladder, ***” and there is no mention of urinary tract or urinary system; the reference is to the urinary bladder. Volume 2, Schmidt’s Attorneys’ Dictionary of Medicine, Page 853, defines urinary bladder, as follows:

“Same as "bladder. The term urinary bladder is used more specifically to differentiate it from the gall bladder or gallbladder. However, this seems to be an unnecessary refinement, since the term bladder when not otherwise modified, refers to the urinary bladder by the force of established usage.”

It is thus quite clear that Question (a) uses the word, urinary, to differentiate that bladder from the gall bladder, and has no reference whatsoever to the urinary tract or system .

Accordingly, there being no question in the application with regard to the prostate or to the disease of prostatitis, it necessarily follows that there can be no false answer. In other words, if the company desires information relative to any disease or infection of the prostate gland, it had best revise its application.

Question No. 6 simply asks if applicant and all members of the family group are now in good health, and this question was answered, “Yes.” There is no showing that Baker was not in good health at the time of the application.

Question No. 9 inquires if applicant or any member of the family group has received medical or surgical advice or treatment within the past five years. This question was answered, “No.” The record does reflect that Baker had low back pain in July of 1963, and also consulted Dr. Whaley in January, 1966, for dizziness, sore throat and nasal congestion. However, the doctor stated that he did not see appellee for any complaints related to the prostate gland after February of 1960, and did not consider the low back pain as necessarily related to that trouble. In other words, this answer, though not correct, was not a material misrepresentation, because appellee had not, within the last past five years, consulted the physician about the difficulty which occasioned the operation.

Since, as previously set out, no questions were aslced about the prostate, the judgment of the trial court is affirmed, though its ruling was based on an erroneous premise.

Baker obtained judgment in the amount of $470.00, which includes a benefit of $25.00 for anesthetic, and a $25.00 benefit for narcotics. The policy provides for both, but the bill submitted by the hospital only lists a charge of $144.25 for drugs. Appellant asserts that there is no proof that any narcotics were used. This objection is somewhat technical. While the use of the term “drug” does not necessarily imply narcotic or sedative properties, the word “narcotic” is defined in the medical dictionary, heretofore quoted, at Page 536, as, “A medicinal substance or drug which, when taken in sufficiently large doses, produces profound stupor or complete insensibility. In smaller doses it relieves pain without causing stupor.” While all narcotics are drugs, all drugs are not narcotics, but apparently the words are often used interchangeably. The type of operation performed on Baker would seem to call for the use of narcotics. Be that as it may, the record does not reflect any objection to the introduction of the hospital bill.

The total amount sued for was $495.00, and the recovery was $470.00. The amount sought for surgical expense was $125.00, but the policy provides that the company will only pay $100.00 for a prostate operation by endoscopic means. Accordingly, appellant contends that tbe amount sued for was not recovered, and it is not liable for penalty and attorney’s fee. Tbe record shows that at the conclusion of all the evidence, the court held that the amount asked for in the complaint covering surgery was an error, and “that the plaintiff did not seek more than the policy provided.” In rendering the judgment, the court held the complaint amended to conform to the proof, and granted the penalty and attorney’s fee.

We have permitted this to be done in numerous cases, but only after the insurer had an opportunity to confess judgment for the lesser amount. In Progressive Life Insurance Company v. Hulbert, 196 Ark. 352, 118 S.W. 2d 268, Hulbert sued for $400.00, and asked an instruction telling the jury that the verdict should be for that sum if the jury found for the plaintiff. The trial court was of the opinion that, under the terms of the policy, a recovery could not be had for more than $266.67; Hulbert then amended her complaint reducing the amount sued for to that figure, and requested an instruction telling the jury that the verdict should be for that sum if the company should be found liable. In affirming, we said:

“But the sum finally sued for was $266.67, and it was within the discretion of the court to permit this amendment. Had the insurance company offered to confess judgment for this amount when the complaint was amended it would have been proper to enter a judgment for that amount without penalty or attorney’s fee. But this was not done. The defendant then insisted, and now insists that the plaintiff was not entitled to recover anything.
“It was not error, therefore, to award judgment for the penalty provided by statute, and for the attorney’s fee, which does not appear to be excessive. ’ ’

See also DeSoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S.W. 2d 243; Old American Life Insurance Company v. Harvey, 242 Ark. 720, 415 S.W. 2d 66. Here, appellant did not contend that appellee was seeking an excessive amount; it simply contended, as is contended on this appeal, that the company was not liable.

The judgment is thus affirmed. Appellee asks for an additional attorney’s fee for services rendered on this appeal, and we think it proper to allow $100.00.

It is so ordered.

      This was the holding of the court.

       All italicized words in the definition denote our emphasis.

       Even if there were a question relating to this system, persons not familiar with medical terminology might well never connect this with trouble from the prostate gland.

       The trial court held that the testimony tending to show that Baker “was afflicted with any disease of the urinary system before issuance of the policy or the effective date of the policy was too remote and should not be considered ***.”

       A $200.00 benefit is provided for an open operation.

       The court was also confused in the amount, stating that the figure of $150.00 contended for (actually $125.00) was an error, but the judgment provided that the sum should have been $75.00 tor surgery, whereas the correct amount was $100.00.


author: George Rose Smith, Justice. John A. Fogleman, Justice.

text:
    Arthur G. Brickey, Sr., Administrator v. B. L. Lacy et al
    5-4744
    435 S.W. 2d 443
    Opinion Delivered December 23, 1968
    [Rehearing denied January 27, 1969.]

      Mitchell D. Moore for appellant.

      Bruce Ivy and James E. Hyatt Jr. for appellees.
   George Rose Smith, Justice.

This unlawful detainer action was brought by the appellant, as administrator of the estate of Mabel Brickey Ayres, to recover possession of a 177-acre farm owned by Mrs. Ayres at her death on September 7, 1963. By making bond the plaintiff obtained possession of the property during the pendency of the suit, the defendants being unable to make a cross-bond to retain possession. Trial to a jury resulted in a $16,750 verdict for the tenants, Mr. and Mrs. Lacy, upon their cross-complaint for damages for wrongful eviction. The appellant urges eight points for reversal, which for discussion we will condense into four contentions.

First, the appellant argues that the trial court was wrong in treating the contractual relation between Mrs. Ayres and the Lacys as a tenancy from year to year, requiring six months notice for its termination. This argument is without merit. From 1949 through 1963 Lacy farmed the land, at first under an oral agreement with Mr. Ayres and after his death under a similar agreement with Mrs. Ayres. The rent was paid on an annual basis, and the arrangement continued in force through all those years. Upon the undisputed facts the tenancy could only have been one from year to year. Peel v. Lane, 148 Ark. 79, 229 S.W. 20 (1921); Lamew v. Townsend, 147 Ark. 282, 227 S.W. 593 (1921).

Secondly, the appellant unsuccessfully objected, under the dead man’s statute, to Lacy’s testimony that by his agreement with Mrs. Ayres he was to pay as rent one fourth of the cotton crop and $20 an acre for the rest of the land. We find no prejudice, not only because there was other testimony to the same effect by the witness Robbins, but also because in determining the appellees’ maximum recovery we attach no importance to the terms of the year-to-year agreement.

Thirdly, the appellant complains of the trial court’s refusal to allow the introduction of a probate court order by which he as administrator was authorized to bring this action. No error occurred. The ex parte order was not binding upon the Lacys, yet it might have misled the jury into thinking that the probate court had made a controlling determination that the administrator had a valid cause of action.

Finally, the amount of the verdict is questioned, with reason. Lacy’s proof encompassed items of pecuniary damage totaling only $15,575, according to the appellees’ own brief, plus an apparent allowance by the jury of an additional $1,175 for the mental anguish suffered by the Lacys as a result of having been evicted. No authority is cited for the novel notion that a breach of contract like this one gives rise to a compensable claim for mental anguish, nor is there any such rule of law. Restatement, Contracts, § 341 (1932). Consequently we confine ourselves to the Lacys’ proof of pecuniary losses.

In unlawful detainer cases we have adhered to the measure of damages stated in McElvaney v. Smith, 76 Ark. 468, 88 S.W. 981, 6 Ann. Cas. 458 (1905): “When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover as damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agreed to pay, he may recover this excess and, in addition thereto, any other loss directly caused by the eviction, such as the expense of removal to another place.” See also Byers v. Moore, 110 Ark. 504, 163 S.W. 147 (1913).

Mrs. Ayres died on September 7, 1963 — too late in the year for her administrator to terminate the year-to-year lease by giving the required notice six months before January 1, 1964. The first notice to quit given by Brickey as administrator was in a letter dated November 27, 1963. This action was brought in the following February, when the Lacys were evicted by the sheriff.

Inasmuch as the jury allowed all the preeuniary losses enumerated by Lacy, our concern is merely to eliminate those not supported by substantial evidence or not allowable as a matter of law. Lacy testified that after receiving notice that he would not have the farm in 1964 he diligently tried to rent other farm land in Arkansas, Mississippi, or Missouri. He was unsuccessful, because by then all the available land had been rented to others. Lacy testified that he spent $459 in trying to find another place, that he had already spent $250 in preparing the Ayres place for cultivation in 1964, and that he spent $83 in moving his equipment after he was evicted. We consider all three items to be properly allowable.

When Lacy was evicted he had a combine and a tractor which he was buying on credit. As a direct result of his wrongful eviction he was unable, for lack of income, to keep up the payments on either machine. He thereby lost his equity of $3,800 in the combine and $1,800 in the tractor when the equipment was repossessed by the seller. We think the jury was justified in finding that those losses, in the language of the McElvaney case, were “a direct and natural consequence of the wrongful act of the landlord.” That is not true, however, of an asserted loss of a $1,200 equity in a truck, because Lacy did not buy that vehicle until 1964, after he had been evicted.

Ordinarily the element of damage that can be most convincingly proved by an evicted tenant is the difference between the rental value of the property and the price that he agreed to pay. Here Lacy contends in his brief that upon that score he is entitled to recover $7,983. That sum, however, was the entire amount of rent paid by his successor tenant in 1964. Of course that is not the measure of Lacy’s damages. The only definite testimony showing that his rental agreement was more favorable than that of his successor is his undisputed proof that in 1963 his rent for the same property amounted to only $6,346.74. Even viewing the case as favorably as possible in support of the verdict, we cannot sustain a loss-of-rental-value award exceeding $1,636.26, the difference between the 1963 rent and the 1964 rent.

'To sum up, we find that an allowance of only $8,-028.26 is supported by the record. In such a situation our practice is to reduce the judgment to the highest allowable figure and to affirm it as so modified. Kane v. Carper-Dover Merc. Co., 206 Ark. 674, 177 S.W. 2d 41 (1944); First Nat. Bk. of Minneapolis v. Malvern, 171 Ark. 994, 287 S.W. 185 (1926).

It is so ordered.

Fogleman, J., concurs.

John A. Fogleman, Justice.

I concur in the result, but there are two particulars in which I do not entirely agree with the majority opinion.

Although I agree that the probate court order authorizing appellant to bring this action should not have been admitted into evidence, I think it would have been admissible if appellees had questioned his capacity to to sue as administrator. "Without probate court action appellant would not have been entitled to possession of the real estate in any event. When the circuit judge sustained the objection to the introduction of the order, he stated that no such issue had been raised. The record sustains him.

I have serious reservations about the right of a dispossessed tenant to recover for his equity in farming equipment repossessed. It strains credulity to believe that an equity as great as that claimed by Lacy would be totally lost. I think it might well be that this element of damages was too remote and speculative to warrant consideration as a direct and natural consequence of the eviction. Yet, the abstract reveals no objection to the testimony offered in this regard. No objection is shown to have been made to any instruction given by the court. It does not appear that appellant offered any instruction to the jury to limit its consideration of the testimony as to damages, or any suggested modification or limitation of the instruction given on the measure of the tenant’s damages. It must be assumed that the jury did consider this testimony. The impropriety of considering this element of damages is not argued here. Appellant’s argument is directed toward the excessiveness of the verdict.

Appellant’s only argument here with regard to this ¡evidence is that Lacy’s testimony was self-contradicting, unworthy of belief, unsupported, indefinite, confused, and vague. These objections, urged here for the first time, were actually resolved by the jury verdict.

Por these reasons, it cannot be said that the jury erroneously included loss of equity in farming equipment.


text:
    Rheuben F. Green et ux v. Mid-State Homes, Inc.
    5-4763
    435 S.W. 2d 436
    Opinion Delivered December 23, 1968
    [Rehearing denied January 27, 1969.]

      Lightle & Teddler for appellants.

      Spencer & Spencer for appellee.
   George Rose Smith, Justice.

The issue here is that of usury in a contract for the construction of a shell home. The chancellor upheld the contract and ordered a foreclosure of Mid-State’s mortgage.

The material facts are not similar to those in any of the many usury cases that we have considered in the past fifteen years or so. Here Mid-State’s assignor, Jim Walter Corporation, agreed on April 7, 1966, to bnild a house for the Greens for a contract price of $6,-355, with the transaction being financed by the builder. The Greens agreed to pay the taxes and insurance premiums; so the only elements involved were principal and interest. According to the note and mortgage, the debt was payable in 144 monthly installments of $75.80 each, beginning June 15, 1966, and totaling $10,915.20. It is undisputed that the installment payments could have been at least $75.95 each without exceeding the maximum interest rate of 10% per annum. See Lake’s Monthly Installment and Interest Tables, p. 152 (5th ed., 1959).

Green had retired from the military service shortly before the contract was negotiated and had not yet found civilian employment. Having saved some money, he wanted to make ten monthly payments in advance, to give him time to find a job. The Walter Corporation salesman, Carl Allen, did not have a form of contract that could be used to put such a prepayment arrangement into effect. Allen suggested that the money be used as a down payment, but Green rejected that suggestion — presumably because he would still have been required to begin making payments sooner than he wanted to.

The note and mortgage were actually executed for the full amount of the contract price; that is, as we have said, for $10,915.20 payable in 144 installments of $75.80 each, beginning June 15, 1966. By oral agreement, however, Green obtained the desired ten-month moratorium by agreeing to pay the full amount of the first ten payments ($758) in advance— $500 on the day the contract was signed and $258 five days later. Pursuant to that oral understanding Green was not required to make any monthly payment until April 15, 1967, ten months after the first payment was ostensibly due on June 15, 1966. Upon the debtors’ default Mid-State, to whom the note and mortgage were assigned on June 17, 1966, brought this foreclosure suit on November 2, 1967. The defendants pleaded usury.

The contentions of the parties are clear-cut. The Greens insist that they were overcharged, because even though they paid $758 in cash at the inception of the contract, that amount was nonetheless included in the principal indebtedness, upon which interest was exacted at substantially the maximum rate for the full term of twelve years. Hence, say the Greens, the lender was charging interest as if the $758 cash payment had actually been advanced to the borrowers, although in reality the lender had the money from the outset in its own possession and available for its own benefit.

Mid-State counters by insisting that the Greens merely made a voluntary prepayment upon their indebtedness. 'They rely upon the rule that if an installment contract would not be usurious if paid according to its terms, the transaction is not rendered usurious by the debtor’s voluntary payment in full before maturity, although as a result the creditor receives a sum amounting to more than the principal plus the maximum legal rate of interest. Eldred v. Hart, 87 Ark. 534, 113 S.W. 213 (1908).

We do not wholly agree with either side — at least not to the full extent to which they would carry their contentions. We consider first the Greens’ argument. At the trial they introduced the testimony of a banker, Wayne Hartsfield. He testified that if the prepayment of $758 had been credited at once upon the principal debt, the balance of $5,597 could have been made payable in 144 monthly payments of $66.89 each. Under that schedule the Greens’ total payments would have been $1,283.04 less than the face amount of the actual note. By deducting from that difference the amount of the $758 initial payment, Hartsfield concluded that the Greens had been charged $525.04 in excessive interest.

Hartsfield’s computations manifestly do not jibe with the undisputed facts. No party to the contract ever intended, as Hartsfield’s theory assumes, that the Greens would begin mating monthly payments within thirty days. To the contrary, everyone agrees that the Greens’ prepayment was for the specific purpose of affording them a respite of ten months, at the end of which they would be in exactly the same position as if the ten payments had been made when due. Thus Hartsfield’s testimony presupposes a hypothetical situation so different from the actual facts that we have found his calculations to be of no assistance to us.

Nor can we go all the way with Mid-State’s insistance that the doctrine of Eldred v. Hart is controlling. That case had to do with a loan that was not usurious in the beginning. Of course a debtor cannot, by making a payment in advance of its due date, convert a valid loan into a usurious one. If that were the lav/ no one lending money at the maximum legal rate of ten percent per annum could afford to accept an installment payment even a few days before it was due.

On the other hand, the lender cannot be allowed to hold back part of the loan under the guise of an acceptance of voluntary prepayments by the borrower. We cannot lay down a rule that would open the door to the exaction of outwardly “voluntary” prepayment agreements from borrowers actually acting under the pressure of financial necessity.

In the study of the case we have explored a number of tentative theoretical and mathematical approaches to the problem, with a variety of results. We are now firmly convinced that no solution should be adopted that does not take into account two of the undisputed realities in the case:

First, the parties unquestionably intended for the Greens, at the expiration of ten months, to occupy precisely the same position they would have occupied if the payments had been made every month instead of all at once. That is, at the end of the ten months the Greens would have paid all the interest accruing up to that time and also would have made ten part payments upon the principal debt. No solution that fails to recognize those facts is acceptable.

Secondly, the problem cannot be solved by likening it too woodenly to a simple loan of money, with the lender withholding part of the principal. It must be remembered that the Greens, as of the date of the initial agreement, became entitled to a $6,355 house, for which they could lawfully have paid cash in advance. We are dealing with a sale on credit rather than a loan of money only. That points up a flaw in Hartsfield’s assumption that the $758 prepayment had to be deducted from the principal debt of $6,355. Such a theory might be acceptable with respect to a lender holding back part of the principal, but it does not apply with equal force to the seller of a house who delivers in a credit transaction the property agreed upon.

We have concluded that the transaction was not usurious. The simplest approach seems to us to be the best: All that really happened was that the Greens prepaid ten installments, comprising both interest and principal, that might have been paid over as many months. What did the Greens lose, or, conversely, what did Mid-State gain, by the prepayment?

At most the Greens lost the use of their money for ten months. Mid-State gained a corresponding advantage. Ten per cent interest upon the prepayment of $758 amounts to only $63.16. Lake, pp. 299 and 347. In fact, the Greens lost only a little more than half of the $63.16; for, by having agreed to pay the installments monthly rather than in a lump sum at the end of the ten months, they were never entitled to retain the entire $758 for the full ten months. Their actual loss appears to have been about $34.75.

The addition of $34.75 to the interest ag’reed upon would not put the total over the ten per cent limit, for the contract as written called for interest charges at least $90.45 below the legal maximum. We have already pointed out that the 144 monthly installments might have been increased by 15 cents each, or $21.60 in all. Also, the first monthly payment might have been made payable on May 7 instead of on June 15. That waiver of interest for 39 days provides an added leeway of $68.85. Hence the contract was valid. The fact that it was in writing answers the appellants’ subordinate contention that the maximum of six per cent, applicable only to oral contracts, should be applied. Ark. Const., Art. 19, § 13; Ark. Stat. Ann. § 68-602 (Eepl. 1957).

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice.

The majority has found a new test for usury, heretofore unknown to Arkansas law. As I understand this novel approach, it simply compares the arrangement made to the face of the note and mortgage by figuring the discount rate on the payments by appellants in lieu of the first ten payments. This is not, and never has been, the test for usury. Nor is there any real difference in a credit sale and a loan of money under the circumstances here. Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W. 2d 802. Although the note dated April 7, 1966 provided for payment of a $6,355.00 debt by paying 144 monthly installments of $75.80 each, beginning June 15, 1966, and totalling $10,915.20, the actual arrangement was somewhat different. Appellant paid $500.00 on the date of the note and $258.00 on April 12, 1966. According to the agreement, the monthly payments began May 15, 1967. The actual arrangement was the same as if appellants had paid $500.00 as a down payment on the date of the transaction and agreed to pay $258.00 on April 12, and 134 payments of $75.80 beginning May 15, 1967. In testing for usury, the amount to be considered as principal is the net amount of which the borrower or purchaser had the benefit for the full term. Smith v. Eason, 223 Ark. 747, 268 S.W. 2d 389. In this instance this would be $6,355.00 less $500.00, or $5,855.00. The test for usury is whether the total amount to be paid by the borrower or purchaser in performance of the agreement is in excess of the principal received, plus 10% per annum for the term. McDougall v. Hachmeister, 184 Ark. 28, 41 S.W. 2d 1088.

Where there are partial payments, the method of testing for usury is clearly set out in Lyttle v. Mathews Investment Co., Inc., 193 Ark. 849, 103 S.W. 2d 47, and followed in Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009. The proper method of calculation is to figure interest at the maximum rate on the principal up to the date of the first partial payment, add the interest to the principal, and deduct from the total the amount of the partial payment. Then, 10% interest for one month on the principal balance then remaining should be added, and from this total the next monthly payment should be deducted. This procedure should be followed until all 134 monthly installments have been taken into consideration. Of course, the monthly interest should always be figured on the principal balance and not on the accrued “interest.” Lyttle v. Mathews Investment Co., Inc., supra. If any principal balance remains after the application of all payments on this test, the contract is not usurious. This is only a test to determine whether the purchaser is being required to pay more than the maximum he could be required to pay. It does not mean that the payment of any interest would be required of the Greens during the ten months’ period while payments were excused, as suggested by the majority. The Greens would not be required to pay any more or any less. Under the proper test for usury and the agreement between the parties, the Greens would have paid $70.00 in excess of the legal maximum. The note is usurious, and should be canceled.

It must be remembered that this is not a case in which the agreement calls for compound interest. Such an agreement has been held not usurious in certain circumstances, with indications that other such contracts might be usurious under other circumstances. PhippsReynolds Co. v. McIlroy Bank & Trust Co., 197 Ark. 621,124 S.W. 2d 222. Nor is it a case in which the borrower (purchaser) agreed to deposit moneys in an escrow account with a third party in advance of the due date of payments, which probably would not render the contract usurious. It must be remembered that the seller here had full use of the $500.00 payment from the date of the original transaction and of the $285.00 beginning five days later.

I would reverse the chancery court and cancel the note and mortgage.


author: Paul Ward, Justice.

text:
    Aaron J. Fortner v. Air Conditioning Training Co. Inc., et al
    5-4758
    435 S.W. 2d 784
    Opinion Delivered December 23, 1968
    [Rehearing denied January 27, 1969.]

      Charles L. Carpenter and William G. Fleming for appellant.

      Wayne Foster for appellees.
   Paul Ward, Justice.

This is an appeal from a chancery decree refusing to enjoin the enforcement of an execution issued by a municipal court.

On October 27, 1961, Air Conditioning’ Training Co. Inc. (appellee) filed a suit in the Little Rock Municipal Court seeking a judgment for $300 against Aaron J. Fortner (appellant). On November 7, 1961, appellant filed a demurrer. The municipal judge overruled the demurrer, and entered a default judgment against appellant in the amount prayed for plus court costs. On or about March 1,1966, the Clerk of the Municipal Court issued a Writ of Execution on the judgment and placed it in the hands of the sheriff for service on appellant.

On March 25, 1966, appellant filed a Complaint in the Pulaski County Chancery Court, First Div. asking that court to enjoin the sheriff and appellee from further attempting to enforce the Municipal Court judgment “until such time as the issues are joined by proper pleadings and a trial is held”.

After a hearing, on stipulated facts, the chancellor dismissed appellant’s cause of action, holding that appellant “should pursue his appellate remedies before taking further action ...” This appeal follows.

Under the record and stipulated facts in this case we hold that the trial court was correct in dismissing appellant’s complaint.

As stipulated by the parties, there appears (Tr. p. 23 Ex. 4) a “Petition” by appellant asking the Municipal court to set aside the judgment for $300 entered on March 5, 1962, which stated that appellant had no notice of the hearing and did not know a judgment had been rendered until March of 1965. Said Petition asked that the judgment be set aside and be declared void. In regard to said Ex. 4 the parties stipulated: The jacket in the case has on it “Petition, 7/7/65 by atty-defendant” and on the back side there is this notation “Petition to set aside judgment denied, Q. G-., 12-1-65”.

Appellant followed the proper procedure to set aside the original judgment rendered on March 5, 1962, as is provided in Ark. Stat. Ann. § 29-506 et seq. (Repl. 1962), but the mistake appellant made was in failing to appeal from the order of December 1, 1965, denying his petition.

In the case of North Little Rock Transportation Co. v. Songster, 210 Ark. 294, 195 S.W. 2d 549, the facts were very similar to those in this case. There, among other things this Court said:

“We think appellees, petitioners, lost their right of appeal through their own inattention, and are seeking to use the writ as a substitute for appeal . . .”

It is our opinion, therefore, that appellant cannot substitute this action in chancery court for the right which he had to appeal from the Municipal Court order.

Affirmed.


author: Lyle Brown, Justice. Conley Byrd, Justice.

text:
    Lora Marling v. City of Little Rock
    5-4746
    435 S.W. 2d 94
    Opinion Delivered December 23, 1968

      Spitzberg, Mitchell & Hays for appellant.

      Joseph C. Kemp and Perry V. Whitemore for appellee.
   Lyle Brown, Justice.

This is a zoning case. Appellant Lora Marling was unsuccessful in her application to the Little Rook Planning Commission to change the zoning of her residence at 4700 West Markham Street from B-Family to E-l, Quiet Business. She filed this suit to enjoin the City of Little Rock from interfering with her planned use of the property for a quiet business enterprise. She alleged the city’s action to be unreasonable, arbitrary, and to constitute a denial of due process. That is tbe sole issue on appeal from tbe chancellor’s findings which denied relief to the property owner.

Appellant owns Lots 12 and 13, Block 6, Elmhurst Addition. The addition consists of forty acres which was platted into 200 lots in 1910. It appears to contain approximately 190 residences, most of which have been in existence for many years. The south boundary of the sub-division is West Markham Street. Appellant’s home faces south on Markham with Palm Street running along the east side of the house. The addition is exclusively residential. An effort was made in 1965 to rezone two lots located some 200 feet east of the Marling property and in Elmhurst Addition. That application was rejected. Downs v. City of Little Rock, 240 Ark. 623, 401 S.W. 2d 210 (1966).

The traffic count in this area on Markham is one of the heaviest in Little Rock. Across the street and diagonal to the subject property are the Medical Center and the State Hospital. Those structures are set back a considerable distance. Farther west on the south side of the street are War Memorial Park and St. Vincent Infirmary, then the tremendous commercial development in the area of West Markham and University Avenue. Those are only a few of the factors contributing to the heavy four-lane traffic. On the north (appellant’s) side of Markham, and west to University, it may fairly well be described as being zoned commercial and quiet business, excepting of course the frontage in Elmhurst Addition. Other than the Markham Street frontage, the remainder of the subdivisions north of the street generally retain their residence and apartment classifications. Appellant’s home is two blocks west of Glendale Addition which fronts Markham on the north. In Glendale, most of the Markham Street frontage lots have multifamily, commercial, and quiet business classifications. The next three and one-half blocks of Glendale, which are situated east of, and alongside Elmhurst, have either apartment or residence classifications, with the latter predominating. Summarizing, the Elmhurst frontage on Markham is the only frontage in the immediate vicinity used exclusively for residential purposes.

Appellant cites these factors which she contends distinguish her case from Downs v. City of Little Rock, supra: Since Downs, the State Health Department has erected a six-story office building on the State Hospital grounds across the street and slightly west of the subject property; the Mall Shopping Center has opened at Markham and University; St. Vincent has enlarged its facility; a group of ten residences immediately west of Elmhurst have been declared by the planning commission as favorable for quiet business (that area being one and one-half blocks west of appellant); the combined east-west traffic has substantially increased since Downs; and the residence in the Downs case does not actually face Markham — it faces east and the side of the house is adjacent to Markham. Certainly those considerations, which were presented to the trial court and thoroughly abstracted here, should he evaluated, but alongside other important elements both factual and legal.

On behalf of appellant, the traffic count, the additional commercial developments, and changes in frontal zoning classifications were stipulated. C. V. Barnes, a real estate counselor and appraiser, testified for appellant. He concluded that the Marling property was no longer desirable for residential use, citing the changed conditions heretofore enumerated. He asserted that the granting of the requested change in zoning classification would not adversely affect the remaining property in Elmhurst Addition. He also concluded that the denial of Mrs. Marling’s application was arbitrary.

It was also shown by appellant that the planning commission staff changed the address on appellant’s application from 4700 Markham to 100 North Palm, which latter address would be correct if the house faced Palm rather than Markham. It is appellant’s theory that the change was made so the zoning application would be evaluated from the standpoint that the house faced Palm and sided on Markham. The city’s witness testified that the plot plan submitted by the applicant showed no sidewalk leading from Markham to the front of the house; it showed a sidewalk leading from Palm to the house. That factor, along with the fact that the lots are platted east and west, assertedly caused the error. However, it was explained that in checking out the area it was noticed that the house appeared to face south on Markham. We assume any confusion in the minds of the planning commission about the location of the house was clarified in the public hearing.

Bussell McLean, a professional land appraiser and former member of the planning commission, testified for the city. As did Mr. Barnes, he showed a thorough familiarity with the general area. He concluded that the recited changes did not affect adversely the use of the Marling property as a residence. He described the Elmhurst neighborhood as stable, mostly homeowned, and well maintained. He saw no difference in whether the house faced Markham or Palm. He was of the opinion that the rezoning of this property would gradually cause an erosion in values of the adjacent residences. He was further of the opinion that the ten residents one and one-half blocks west of the subject property made a mistake in pressing for rezoning. He stated that their hopes for considerable profits from “quiet business” prospects had not matured and recounted that not one of them had sold.

Henry deNoble testified for the city. At that time he was director of community development for Little Bock and had been so employed for approximately nine years. It was stipulated that he was an expert. All of the factors in the general area, most of which we have recited, were considered by Mm in reaching a conclusion which favored rejection of the application. He stressed the undesirability of spot zoning. He compared it to a cancer, asserting that it would immediately affect adjacent residences and gradually call for rezoning to the north. He emphasized that there was no natural buffer between appellant’s property and the neighbors, which fact he said causes rezoning to spread. The only characteristic which he conceded to have an unfavorable impact on the Marling residence was the traffic; however, he predicted a reduction when the east-west expressway and other planned street improvements are completed. He contended that the changes in the area since the decision in Downs do not justify a distinction between the Downs property and the Marling property.

Four property owners residing in Elmhurst testified in opposition to the application. Collectively they described the addition as a quiet, well-kept, and home owner neighborhood; it is in walking distance of several churches; a Catholic school, a public junior high school, and a grade school are in walking distance; and the granting of this single permit would, in their opinion, be the opening wedge for other reclassifications to the detriment of the neighborhood. Mrs. Marling did not testify.

In the trial court the burden was on the landowner to prove preponderantly that the action of the city was arbitrary. Lindsey v. City of Camden, 239 Ark. 736, 393 S.W. 2d 864 (1965). On appeal it is our responsibility to determine whether the trial court’s finding was contrary to a preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W. 2d 116 (1962). The chancellor had a difficult decision. The trend in a wide area along Markham has been toward commercial and private business use; since the decision in Downs considerable changes have taken place; and one experienced witness testified that the Marling property was no longer sMtable for residential use. Then two men experienced in such matters insisted that the character of appellant’s property had not been affected by the changes. We perceive that the chancellor was impressed, as are we, with an abundance of evidence pertaining to the danger of spot zoning. That danger was emphasized where, as here, there is no existing barrier to prevent the spreading of rezoning into the exclusively residential area to the north. Those residents have a stake in this ease and are entitled to consideration. Appellant’s exercise of her rights of property must be recognized; however, we held in an early zoning case that her enjoyment of its use may be reasonably restrained so as not to cause injury to the property rights of her neighbors. See Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925). This is true even though, as was said in Downs, the best and most remunerative use of the two lots in question might be for quiet business.

We are unable to say that the chancellor’s findings were against the preponderance of the evidence.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice.

I dissent to the affirmance of this case because as I understand the facts both the City of Little Bock and the majority of this Court are denying to Mrs. Marling privileges that are granted to others similarly situated.

The record here shows that the property abutting Markham Street on the North from Cedar Street, the 4000 block, to McKinley Street, the 6500 block, is all zoned “E-l” Quiet Business or “F” Commercial except for the three block area where Mrs. Marling’s property is located. In other words commencing one block east of Mrs. Marling, the City permits a use of the property abutting Markham Street for a five block area to the east that is denied to Mrs. Marling. Then commencing one and one-half blocks west of Mrs. Marling the City for a twenty-six block area to the west permits a nse of the property abutting Markham Street, as does Mrs. Marling’s property, that is denied to Mrs. Marling.

For these reasons I would reverse the judgment of the trial court.


author: Lyle Brown, Justice.

text:
    E. M. McWilliams v. R & T Transport, Inc.
    5-4747
    435 S.W. 2d 98
    Opinion Delivered December 23, 1968

      John Wilson and S. Hubert Mayes for appellant.

      Graves & Graves for appellee.
   Lyle Brown, Justice.

This litigation stems from a two-vehicle collision. Plaintiff below, E. M. McWilliams, is appellant here. He appeals from his failure to obtain a judgment for damages against R & T Transport, Inc. McWilliams challenges the introduction of alleged hearsay evidence and further contends the verdict was contrary to the law and the evidence.

McWilliams was operating a passenger car. Transport’s driver was operating a tractor-trailer and pulling approximately 50,000 pounds. The tractor was trailing the passenger ear and they were proceeding east on East Third Street (Highway 67) in Hope. Both vehicles were being driven at moderate speeds. McWilliams resides on the south side of East Third and as he was preparing to turn to his right and into his driveway, the tractor’s bumper (left front) made contact with the right rear of the passenger car. The impact caused the McWilliams car to swerve abruptly to the right and into a tree adjacent to the driveway. The McWilliams vehicle was substantially damaged and the driver received personal injuries, for both of which he sought compensation.

McWilliams testified that as he approached the point in the highway where he was to turn, he timely activated his right turn signal; that when he made his turn he did so within about five feet of the right curb line; that he at no time swung to the left to align straight with the driveway; and that when he was about half way through his turn the truck struck his car. Mrs. Springer lives in the second house east of the McWilliams residence and she testified she watched the accident from her breakfast room window. She was positive she saw the right turn signal operating.

The truck driver, Owen, testified that he had twenty-five years experience in long distance truck driving and had never had a chargeable accident; that in the east bound lane (stipulated to be twenty feet and eight inches in width) there was ample room to pass McWilliams on the right; that as Owen approached the car, McWilliams was very near the center line with his left turn signal operating; that as Owen came closer, McWilliams moved over the center line which emphasized to Owen that McWilliams was making a left turn. Owen further related that at that moment he started around McWilliams on the latter’s right side; and that at about the same time, McWilliams turned abruptly to his right and in the path of the oncoming truck. Owen was corroborated by his relief driver. With respect to the location of the McWilliams vehicle at the moment of impact, Officer Rowe testified that the car was near the center line.

It will be noted that appellant had two witnesses who testified that the right turn signal was operating, whereas appellee’s two witnesses insisted that the left turn signal was activated. Officer Sinyard, who arrived in a matter of minutes, observed the left signal light operating. McWilliams explained that he turned on that signal after the accident to see if the signals were working.

We have enumerated the critical facts upon which negligence on the part of both drivers could be hinged. We do so because the jury, by general verdict, placed at least a majority of the negligence on McWilliams; and he contends that such a finding is not supported in law and by substantial evidence. As to the law, the jury was instructed on all phases of possible negligence as to both drivers. Those instructions (AMI) are not questioned. As to the evidence, certainly it was controverted. By its verdict it is apparent that the jury adopted the interpretation of the facts presented by appellee. The evaluation of credibility is the prerogative of the jury, not the trial court or the appellate court. We cannot disturb the findings of fact merely because of apparent contradictions which might appear to us to place appellee’s proof against the weight of the evidence ; we are not permitted to upset the findings unless we can say there is no reasonable probability in favor of appellee’s version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 3.W. 2d 256 (1968). Examining the testimony in light of those rules, it is readily apparent that we cannot say the verdict is unsupported by substantial evidence.

The other point advanced for reversal concerns the admission into evidence of excerpts from the letter of an examining doctor. That was Dr. Bransford of Texarkana, who examined McWilliams after the accident with respect to his hernia; the doctor reduced his findings to letter form. A copy of the letter apparently came into possession of Transport’s counsel by means of discovery. McWilliams testified at the trial that the hernia became painful and that Dr. Bransford thought the pain was due to aggravation from the accident. Dr. Holt of Hope, McWilliams ’ local doctor, testified on direct examination that McWilliams had a hernia prior to the collision and that the impact from the accident could have aggravated that condition. Transport’s counsel, on cross-examination and over objection, was permitted to ask Dr. Holt this question:

Q. Now, my question about Dr. Bransford, if you were made aware that Dr. Bransford had reported in these words: “Cannot really say that the automobile accident aggravated his hernia in any way. It was quite large, and for all intents and purposes, unchanged from Ms physical examination in 1964.” Would that strengthen your belief that you cannot say it was aggravated by the accident?

Dr. Holt replied that he could not definitely attribute aggravation of the hernia to the accident. “All I can say is that he complained of pain following the accident,” referring to pain from the hernia.

Appellant urges us to condemn the admission of the quoted excerpt from Dr. Bransford’s letter as being hearsay. We must reject that plea, even if we agreed that it was hearsay. That is because the identical excerpt was propounded first to McWilliams on cross-examination. The witness examined the letter and conceded the correctness of the quotation. All of that was without objection. At that point the letter was tendered McWilliams’ counsel, preparatory, so we perceive, to making the entire letter an exhibit. McWilliams ’ counsel objected to its introduction and was sustained. However, no complaint was made to the quoted excerpt having been introduced.

In New Empire Ins. Co. v. Taylor, 235 Ark. 758, 362 S.W. 2d 4 (1962), we cited the controlling rule from McCormick on Evidence, p. 126 (1954). Failure to object to incompetent evidence makes it admissible; it becomes a part of the evidence in the case; and it may alone or in part support a verdict. To the same effect, see Consolidated Ind. & Ins. Co. v. Dean, 188 Ark. 835, 68 S.W. 2d 460 (1934), and Shide v. Burns, 163 Ark. 27, 259 S.W. 372 (1924).

Affirmed.