text:
    Moorman v. Taylor.
    5-1208
    297 S. W. 2d 103
    Opinion delivered January 7, 1957.

      Thomas E. Dowm&, for appellant.

      Wayne W. Owen, for appellee.
   George Rose Smith, J.

The 1956 general election was held on November 6. Wylie Perry, in order to qualify as an independent candidate for alderman of the third ward in Little Rock, filed with the county board of election commissioners, on September 21, 1956, a petition signed by forty-seven electors. Perry based his action upon Act 30 of 1891, which requires that such a petition contain from ten to fifty signatures. Ark. Stats. 1947, § 3-261. The present suit to enjoin Perry’s certification as an independent candidate was brought by the appellee, who contends that Act 352 of 1955 requires the petition to be signed by fifteen percent of the qualified electors in the city. Ark. Stats., § 3-837.

The chancellor upheld the appellee’s contention and enjoined the county board from placing Perry’s name on the ballot. The defendants immediately appealed to this court, and, at a preliminary hearing held before the case was ready for submission, we set aside the trial court’s order and directed that Perry’s name appear on the ballot. Although Perry was defeated by the Democratic nominee for the office, it is not our practice to dismiss such cases as moot, for the public interest demands that substantial questions concerning tbe election laws be set at rest. Cain v. Carl-Lee, 171 Ark. 155, 283 S. W. 365.

Tbe 1891 act applies by its express language to nominees for offices of tbe State, district, county, township, and ward of a city or town. Tbe 1955 statute is not equally far-reaching in its terms, as it mentions only State, county, and district offices. Hence a comparison of tbe two statutes indicates pretty clearly that tbe legislature did not mean for tbe later act to be as comprehensive as tbe earlier one.

Tbe appellee argues, however, that tbe word “district” is not an exact term and may include a city as well as a senatorial district, a chancery district, etc. Any uncertainty that exists is completely dispelled when tbe legislative history of tbe 1955 act is examined. As originally introduced in tbe legislature, tbe bill which became Act 352 applied to city offices as well as to those of tbe State, a county, or district. Before its final passage tbe bill was amended to delete tbe word “city” wherever it appeared. House Journal, 1955, p. 394. We certainly should not read into tbe act by implication a provision that tbe legislature itself expressly eliminated. Mayo v. American Agricultural Chem. Co., 101 Fla. 279, 133 So. 885; Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S. W. 2d 482.

Tbe decree is reversed and tbe appellants are awarded their costs, but tbe cause need not be remanded.

Carleton Harris, C. J., not participating.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    The Farm Bureau Cooperative Mill & Supply v. Swift & Company.
    5-1110
    297 S. W. 2d 107
    Opinion delivered January 7, 1957.

      J. R. Crocker and O. E. Williams, for appellant.

      James R. Hale, for appellee.
   Paul Ward, Associate Justice.

The only question involved in this appeal is whether the actions of appellant amounted to a waiver of its mortgage on 6,860 broilers owned by Norman Spencer and sold by Spencer (through another party) to appellee.

Most of the facts forming a background to this litigation are not in dispute and may be briefly stated. Norman Spencer has for several years raised broilers in Washington County, Arkansas during which time he has frequently bought supplies and borrowed money from appellant, the Farm Bureau Cooperative Mill & Supply, located in Washington County with its principal place of business at Fayetteville. As indicated, appellant is in the business of loaning money and selling supplies to those engaged in raising broilers in that section of the State. Guy Eeds of Seminole, Oklahoma, d/b/a Oklahoma Poultry Brokerage Company, buys and sells broilers and has for years past dealt with broiler raisers in Washington County, Arkansas through its agent, Ray Luginbuel, who lives at Lincoln in said Washington County. On November 16, 1954, Spencer gave a mortgage on 6,860 broilers to appellant to secure an indebtedness of $2,800 which was due and payable February 8, 1955.

On January 24,1955 Bay Luginbuel (as agent aforesaid) purchased from Spencer said broilers for a total purchase price of $4,540.25, drawing a draft on Eeds through the First State Bank of Seminole, Oklahoma for said amount in favor of Spencer. Eeds took said broilers to Muskogee, Oklahoma and forthwith sold 4,500 of them to appellee, Swift & Company, for the sum of $2,833.75.

Spencer, upon receiving Eeds’ draft for $4,540.25, took the same to appellant. Authorized employees of appellant accepted the draft, gave Spencer credit for the amount necessary to pay off the indebtedness to appellant, and gave Spencer its check for $1,620.47, being the balance due on the purchase price of said broilers. When appellant in due course presented the Eeds’ draft for payment the same was dishonored and payment was refused.

On October 4, 1955 appellant filed this action in the Washington Chancery Court against appellee, asking judgment in the amount of $3,000, representing its secured loan to Spencer plus interest, on the ground that appellee had converted the broilers to its own use. Appellee defended on the ground that the mortgaged property in question had been sold by Spencer with the consent of appellant, and that appellant thereby waived its lien under the mortgage.

The case was tried on January 13, 1956, and at the close of plaintiff’s testimony the defendant filed a demurrer to the evidence. The trial court sustained appellee’s demurrer and dismissed plaintiff’s complaint, resulting in this appeal.

In general, appellant relies on the principle of the law announced in the case of May Way Mills, Inc. v. Jerpe Dairy Products Corporation, 202 Ark. 397, 150 S. W. 2d 615, to the effect that the sale of mortgaged property by the mortgagor without the knowledge or consent of the mortgagee constitutes a conversion of the property, and that both the mortgagor and the purchaser are liable to the mortgagee for the conversion of the mortgaged property. It is admitted here, of course, that appellant had a mortgage on Spencer’s broilers, that Spencer sold the broilers to Eeds who sold to appellee, and that appellant’s indebtedness against Spencer has not been paid. Appellant says the chancellor committed error in dismissing his complaint because the evidence does not show the necessary knowledge or consent on its part. To sustain the order of the trial court appellee advances several arguments, one of which is that appellant waived its lien on the broilers because it consented to the sale. Since we have concluded that the trial court must be sustained on the above mentioned ground, we deem it unnecessary to consider its argument on the other grounds.

This court, in the May Way case, supra, after stating the general rule above announced, quoted with approval from Mitchell v. Mason, 184 Ark. 1000, 44 S. W. 2d 672, the following:

“On the other hand, if a mortgagee consents to a sale of the property by the mortgagor, the purchaser takes title free from the lien. In such cases, the waiver on the part of the mortgagee may be established by oral evidence, which may be direct and positive, or may be established by circumstances surrounding the transaction. Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392, and Vaughan v. Hinkle, 131 Ark. 197, 198 S. W. 705. In these cases, the court expressly held that where a mortgagee verbally authorizes a mortgagor to sell the property and the property is sold to a bona fide purchaser for value, the latter acquires a good title, whether he knew of the existence of the mortgage or not.”

Weighed under the above announced rule, the oral testimony and surrounding circumstances convince us that appellant consented to the sale of the broilers by Norman Spencer, and that appellee was a bona fide purchaser for value.

It appears that most of the people connected with this particular sale of broilers had known and done business with each other for several years. The nature of the broiler business makes it important that the producers of broilers have a ready market at the proper time.

Thus, it was natural that appellant should help Spencer obtain a purchaser, as evidence shows it did do in this instance. This background of circumstances lends support to the testimony which, in general, is to this effect : Appellant knew that Bay Luginbuel, agent for the Eeds’ Company, was a prospective buyer for Spencer’s broilers, and there is evidence that appellant initiated the move which led to the sale; Appellant knew, before it accepted the draft on the Eeds’ Company, that Spencer was selling the broilers upon which it had a mortgage; It is certain appellant made no claim of illegal procedure before it learned Eeds’ draft was no good; When appellee purchased 4,500 broilers from the Eeds’ Company, it had no knowledge of the source of the broilers and did not know they had been mortgaged to appellant, and; There is no testimony which shows bad faith or unscrupulous dealings on the part of any one involved. Every fact and circumstance convinces us that appellant knew and highly approved of the sale of the broilers in question, and would have gladly accepted the proceeds of the draft had it been paid in regular course. Appellant having once consented to the sale, its mortgage was discharged, and he will not be heard to say later that his consent was conditionally given, especially where the rights of a bona fide purchaser are involved. In Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392, this court said:

“. . . where the mortgagee authorizes or gives consent to the mortgagor to sell the mortgaged property, the mortgage lien thereon is discharged. Under such circumstances, a bona fide purchaser for value from the mortgagor obtains a good title to the property, whether he knew of the existence of the mortgage or not.” So, after Swift & Company had purchased the broilers in question from the Eeds’ Company in Oklahoma without knowledge of any existing mortgage or the original ownership, appellant will not be heard to say that his consent to the sale of the broilers by Spencer was conditioned on Eeds ’ draft being good.

In upholding the action of the trial court in sustaining a demurrer to appellant’s testimony, we are aware of the rule announced by this court in the case of Werbe et al. v. Holt, 217 Ark. 198, 229 S. W. 2d 225, which rule was also considered and applied by the trial court. Giving the evidence in this case its strongest probative force in favor of appellant, we still conclude that it does not make out a prima facie case of liability against appellee.

Affirmed.

Carleton Harris, C. J., not participating.


author: Sam Robinson, Associate Justice.

text:
    Bramble v. Kemper.
    5-1068
    297 S. W. 2d 104
    Opinion delivered January 7, 1957.

      Williamson & Williamson, for appellant.
    (No brief for appellee).
   Sam Robinson, Associate Justice.

This is a suit to annul a void marriage. The issue is whether the Chancery Court of Plot Spring County has jurisdiction. The appellant, Lia Bramble, at a time when she was married to O. Gr. Bramble, undertook to marry appellee, C. H. Kemper. She had previously filed suit asking for a divorce from Bramble, but the divorce had not been granted. A marriage license was issued to Mrs. Bramble and Mr. Kemper by the County Clerk of Independence County, and the parties went through a marriage ceremony in .Hot Spring County. Later, Mrs. Bramble, now a resident of Louisiana, learned that her purported marriage to Kemper was void because the marriage ceremony with him took place before the divorce from Bramble was .granted. To keep the record straight, she filed this suit in Hot Spring County to have the marriage to Kemper ■annulled. The Hot Spring Chancery Court held there was want of jurisdiction and dismissed the petition for ■annulment; Mrs. Bramble has appealed.

In the case of Feigenbaum v. Feigenbaum, 210 Ark. 186, 194 S. W. 2d 1012, this court held that the Chan-eery Court of the county where a voidable marriage was performed had jurisdiction to annul the marriage. Subsequently, the Legislature passed Act 168 of 1947, which provides:

‘ ‘ Section 1. That Chapter One Hundred Seven (107) of Pope’s Digest of the Statutes of Arkansas be amended by inserting after Section 9021 and before Section 9022, a new section to be known as Section 9021A and to read as follows:

Section 9021A. The action shall be by equitable proceedings in the county where the complaint or complainant or complainants reside, and the process may be directed in the first instance to any county in the state where the defendant may then reside or be found.”

In the Feigenbaum case it was held that the courts of this State have jurisdiction to determine the validity of a marriage performed in this State, notwithstanding that neither party to the marriage is a resident of this State. Subsequently, Act 168 of 1947 fixed the venue in actions to annul voidable marriages as the domicile of the plaintiff, but Act 168 does not apply to void marriages. The statutes involved now appear as Ark. Stats. §§ 55-106, 55-107, 55-108, which is the order directed by Act 168 of 1947. When the statutes are read in that order, it is obvious that the 1947 Act, Ark. Stats. § 55-107, does not apply to § 55-108, which is the section dealing with void marriages. In the Feigenbaum case, Judge Frank Smith discussed the various views of the courts with reference to jurisdiction in suits to annul marriages, and, after an exhaustive review of the authorities, it was held that the courts of this State have jurisdiction to determine the validity of marriages performed in this State, although the parties are non-residents of the State. The decision in the Feigenbaum case is not impaired by Act 168 of 1947 insofar as void marriages are concerned. It follows that the Hot Spring court has jurisdiction.

Reversed.

Carleton Harris, C. J., not participating.


text:
    Barham v. McCalman-Hill, Inc.
    5-1107
    297 S. W. 2d 105
    Opinion delivered January 7, 1957.

      Lawrence L. Mitchell; Q. Byrum Hurst and G. A. Stanfield, for appellant.

      McKay, Anderson & Grumpier, for appellee.
   Sam Robinson, Associate Justice.

This suit was filed by appellee, McCalman-Hill, Inc., hereinafter referred to as McCalman, to reform a deed given by appellants. McCalman contends there was a mutual mistake ; that the description given in the deed fails to include all the land intended by grantors and grantee that the deed should convey. The Chancellor held in favor of reformation, and some of the grantors have appealed.

Appellee, McCalman, is in the contracting business, engaged in dirt moving. During the period from August 14 to November 1, 1952, by the use of heavy earth moving equipment, McCalman dug a lake for appellants. When the job was completed, appellants owed to McCalman a balance of about $16,000. To secure the payment of this indebtedness, appellants, along with their wives, executed and delivered to McCalman a mortgage describing about 4Va acres. Appellants defaulted in payment of the indebtedness, and McCalman filed suit to foreclose. To effectuate a settlement, R. D. Barham and his wife, Christine Barham, and D. W. Barham and his wife, Bonnie Barham, executed and delivered to McCalman a deed carrying the same description as that set out in the mortgage, and the foreclosure suit was dismissed. McCalman contends that, according to the agreement of the parties made at the time the mortgage was executed, the description of the property conveyed by appellants should have included the land on which is situated the homes of appellants, which property joins the land described in the mortgage.

To sustain the contention that the deed should be reformed, the evidence must be clear, conclusive and decisive. The Chancellor held that the proof came up to the required standard for reformation, and we agree.

McCalman’s version of the transaction is that it was agreed the Barhams would give a mortgage to secure the payment on the indebtedness incurred by the construction of the lake; that the property on which the mortgage was to be given included three houses, one where each of the appellants live, and the one where Dave Barham’s son lives; that the value of this property was considered to be worth about $25,000. It developed, however, that previously, the property on which Dave Barham’s son lives had been conveyed to the son; he is not a party to this litigation and his property is not involved. The circumstances corroborate McCalman. The Barhams introduced testimony to the effect that they were to give a mortgage on 10 acres, but the land actually described in the mortgage is only about 4% acres. The 4% acres do not appear to have a valuation that would amount to substantial security for the balance owed on the indebtedness at the time the mortgage was given; it is 4% acres of pasture land located near Cale, Arkansas, a town consisting of about three stores and a school. McCalman testified that it was agreed the property, including the houses, would be given as security before he ever started the job. It was known that the job would run into a good deal of money; there were about 95,000 cubic yards of dirt to be moved.

On the Barhams’ part, there is an outright denial that there was ever any intention to give a mortgage on the homes. In addition to the circumstances which corroborate McCalman, there is the testimony of Mr. "W. F. Denman, Sr., an attorney of Prescott who represented McCalman in the transaction, and his secretary, Mrs. Lelia McCargo, to the effect that after the deed was executed all parties were under the impression that it conveyed the houses. Mr. Denman testified that after the execution of the deed R. D. and D. W. Barham came to see him with reference to renting the houses from McCalman; that he did not know what McCalman wanted to do in that respect, and he wrote a letter to Mr. Mc-Calman telling him of the Barhams’ desire to rent the houses and asking for instructions in that regard. A copy of the letter written by Mr. Denman was introduced in evidence. Furthermore, Mrs. McCargo testified that the letter was dictated by Mr. Denman in the presence of Mr. Dave Barham, and that she read the letter back from her notes in the presence of Mr. Barham. Immediately after the deed from the Barhams to McCalman, Mr. Denman, acting for McCalman, took steps to secure insurance on the houses. He did not know the physical description of the houses as to the foundation, roof, etc., and Mrs. McCargo went to find the Barhams for the purpose of getting that information. She located R. D. Barham and D. W. Barham at the coffee shop of the Broadway Hotel, and had a cup of coffee with them. She told them what she wanted, and the Barhams gave her the desired information.

The testimony of Mr. McCalman that the houses were supposed to be in the deed, the testimony of Mr. Denman that such was his understanding, the testimony of Mr. Denman and Mrs. McCargo about the Barhams seeking to rent the houses from McCalman after the deed had been executed, the letter from Mr. Denman written to Mr. Mc-Calman at that time, coupled with the testimony of Mrs. McCargo to the effect that the letter was dictated in the presence of Dave Barham, and the fact that Mrs. McCargo inquired of both R. D. and D. W. Barham as to the construction of the houses for the information of the insurance companies, is overwhelming evidence of the fact that it was the understanding of the parties that the deed was to include the property where the houses were located. The Chancellor was justified by the evidence in reaching the conclusion that the plaintiff had met the burden of proving its case by clear, convincing and cogent testimony.

On behalf of Christine and Bonnie Barham, appellants argue, in their brief, the law as to reforming a deed where homestead and dower are involved, but the wives of appellants, although parties in the Chancery Court, have not taken an appeal.

Affirmed.

Carleton Harris, C. J.. and Mr. Justice Ed. F. Mc-Faddin not participating.


author: Carleton Harris, Chief Justice.

text:
    Walls v. Walls.
    5-1136
    297 S. W. 2d 648
    Opinion delivered January 14, 1957.

      Shaver, Tackett, Jones & Lowe, for appellant.

      Joe Bosenbloom and Van Johnson, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Pearl Roberson Walls, a resident of Miller County, instituted suit in the Miller Chancery Court on February 4, 1956, against her husband, Dee Clark Walls, seeking divorce.

The complaint alleged that the parties were married in Miller County, November 1, 1942, and lived together as husband and wife until January 30, 1956; that defendant treated her with contempt, indifference, and studied neglect; that he struck her on many occasions, frequently absented himself from home, and that this course of conduct was pursued to such an extent that her condition in life became intolerable. The complaint stated that five children were born of the marriage, and that the defendant earned $100 per week. Plaintiff prayed for a divorce, for care and custody of the five minor children, and for a reasonable amount for the support and maintenance of said children. Appellant (defendant) denied that he had committed any acts which would entitle appellee to a divorce, denied that appellee had any cause to leave him, denied that appellee is the proper person to be given the care and custody of the minor children and prayed that the court deny appellee’s petition, and that he he awarded the care and custody of said children.

The Chancellor, after hearing the evidence, passed the case for nearly a month to give the parties an opportunity to adjust their differences and go back together; however, they were unable to do so, and on April 26, 1956, the court decided the issues. Formal decree was entered on May 21,1956. The Chancellor found that appellee had failed to establish a cause for divorce, that she had no meritorious cause for leaving her husband and refusing to live with him, and that her complaint for divorce should be dismissed for want of equity. The court further found that “if plaintiff refuses to return to and live with her husband, defendant should vacate the farm home in order that plaintiff and said children may live there; that if plaintiff will no longer live and cohabit with her husband, plaintiff should have care and custody of said children, subject to reasonable visitation rights in the defendant; and defendant should pay the plaintiff the sum of $31.25 per week, beginning April 28th, 1956, for the care and support of plaintiff and maintenance of said children, that defendant should furnish plaintiff a milch cow, and afford plaintiff the use of an automobile.” In accordance with said finding, and the further fact that the court was convinced appellee would not return and live with defendant, it was ordered and decreed that appellee be awarded the care and custody of all the children, together with the use and occupancy of the farm home (which they held as an estate by the entirety). Appellant was ordered to vacate the home, and directed to pay to appellee the sum heretofore set out for her support and that of said children. From the order requiring him to vacate the home place, and giving to appellee the custody of the children, appellant brings this appeal; appellee cross appeals the decision of the Chancellor in denying her petition for divorce.

Appellee’s allegations of mistreatment dealt largely with the supposed infidelity of her husband. She testified that he would not come directly home from work, but would frequently come in several hours late, often went on fishing trips, and in both instances, returned frequently with lipstick on his shirt. Various incidents were related that led her to believe that appellant was “carrying on an affair” with another woman. No point would be served in detailing the testimony, other than to say there is little, if any, corroboration of the charges made by appellee. Repeated “fusses” occurred between the parties, generally resulting from appellee’s belief that appellant was unfaithful; and on January 30th, 1956, after a heated quarrel, appellee left, with the two youngest children, and went to her father’s home in Texarkana, where she resided until the time of this hearing. The three older children were at school, which was her explanation for not taking them with her, though the record does not reflect that she made later efforts to remove them to the premises where she was living. The three older children, (the eldest being a girl 13 years of age) continued to reside with their father, and this 13 year old daughter stated that if her parents would no longer live together, she preferred to live with appellant, and that this feeling was concurred in by the other two. While it cannot be said that appellant was totally blameless for the marital difficulties, still, it definitely appears that appellee was principally at fault. To say the least, she falls far short of establishing that appellant committed such acts as would entitle her to a divorce.

We accordingly feel that the learned Chancellor held correctly in denying her a divorce, and we further agree with the finding in the decree “that plaintiff has established no meritorious cause for leaving her husband and three older children and refusing to live with him.” Yet, despite such finding, the Chancellor ordered appellant to vacate the premises, gave the custody of the five children to appellee, and directed an award of support, not only for the children, but also for the plaintiff. Hence, we have the unique situation of the court finding that Mrs. Walls had no right to leave her husband and three older children, (finding that she had failed to establish alleged wrongful acts on his part), and yet making an award commensurate with establishment of cause of action. In other words, she was treated as the successful party, and appellant, though by the court’s own finding, innocent of any wrong doing that would justify appellee in leaving, was treated as the guilty party. This court has held in Woodall v. Woodall, 144 Ark. 159, 221 S. W. 463, and Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. 2d 21, that where a divorce is granted to the wife, the court may award to her the use of a homestead, because she is the innocent party. There is no question but that if appellee had established a cause of divorce, (or even separate maintenance) the Chancellor, in awarding her the use of the home property, would have been entirely correct, and an award of maintenance for her personal support would have been proper. Under the court’s findings, she is not entitled to maintenance. In addition to the homestead, this is also an estate by the entirety, with the parties holding equally. Each has the same right under the law to share the property. Both hold the same interest. Appellee has a perfect right to return to the home and live there with appellant. In fact, the record reflects that he has urged her to do so, but appellee emphatically refuses. We recognize that the Chancellor was using his best judgment in trying to solve a most difficult situation, and that he was earnestly endeavoring to promote the re-establishment of the marital relationship, but we think it was error to dispossess appellant under the facts in this case. The factual situation here is different from that which existed in Cassell v. Cassell, 211 Ark. 489, 200 S. W. 2d 965.

Determining the custody of the children presents a more difficult problem. It is well established that children, where possible, should remain together. It is likewise true that the law favors granting custody of small children to the mother. This, however, is not a “hard and fast” rule, and each case must be governed by its own particular circumstances. We feel that the two young children, taken away from the home by the mother, should remain with her. We think, however, that the Chancellor should have left the custody of the three remaining at home, with the father. As far as the record shows, the children, in each location, have been well cared for, and both parents seem to be morally qualified to have the custody. Near the home place, appellant constructed a residence for his invalid mother and sister, and the sister seems capable of looking after these children, all of whom are of school age. It is with reluctance that we separate these youngsters, but it is felt that under the circumstances, their best interests will be served, as well as the best interests of their parents.

While this modification of the order of the Chancellor is not based upon such act, it must be remembered, (and is somewhat persuasive) that appellee, of her own fre.e will, and according to the court’s decree, without cause, left these three children, to be looked after by their father.

For the reasons set forth above, that portion of the decree awarding the use and occupancy of the farm home to appellee, and directing that appellant vacate same, is set aside. Appellant is given the custody of the three older children, Joyce Maxine, age 13 years, Clovis Wayne, age 11 years, and Janice Kay, age 9 years. The custody of the two smaller children, Kathey Ann, age 5 years, and Terrell James, age 1, will remain with the mother as ordered by the Chancellor. The Chancery Court is directed to make a proper adjustment as to the amount of maintenance to be paid for the support and care of the two minor children remaining with appellee.

Affirmed on cross appeal. Modified and remanded as herein indicated on Direct Appeal.

Justices George Eose Smith, Ward, and Eobinson dissent.

       For instance, instead of telling or explaining to his wife where he had been, appellant would frequently and impatiently tell her it was none of her business; he also admitted slapping her several times on one occasion when she had spat in his face.


author: J. Seaborn Holt, Associate Justice.

text:
    Grandbush v. Grimmett.
    5-1126
    297 S. W. 2d 647
    Opinion delivered January 14, 1957.

      Harry Grumpier, W. H. Kitchens, Jr., and Lawrence Mitchell, for appellant.

      Denman & Denman, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, J. Byron Grimmett, while in the employ of appellants, a drilling company, and in the course of his employment was seriously injured. The present suit was filed against appellants and a jury awarded him $7,500 damages. From the judgment is this appeal. It appears that appellants had no workmen’s compensation coverage.

For reversal the drilling company says: ‘ ‘ The appellants do not now nor did they at the trial of this cause deny liability and this appeal is taken on the sole and only question of whether the verdict of the Nevada Circuit Court is excessive. ’ ’ Under our well established rule the amount of recovery in these personal injury cases is for the jury’s fair determination and when supported by substantial testimony we do not disturb the verdict unless it is shown to have been influenced by prejudice or so grossly excessive as to shock the conscience of the court. See Ward v. Blackwood, 48 Ark. 396, 3 S. W. 624; and Hill v. Whitney, 213 Ark. 368, 210 S. W. 2d 800. While the verdict appears to be adequate, we hold that it is not excessive in the circumstances.

Appellee (27 years of age and now a medical student in Little Rock) testified that he was thrown from a catwalk while assisting in setting a 30 ft. casing (some 5y2 in. to 6 in. in diameter). He was struck by the pipe, knocked unconscious and did not regain consciousness until after he reached the hospital. As a result of his injuries his upper jawbone and his lower jawbone were fractured and they were wired back in place. His pain and suffering were severe and he continued to suffer some pain at the time of trial. He testified: “The bottom jawbone, or mandible, comes back and makes a crook here (indicating) or right angles, you might say. It is broken high on each side and I believe the x-ray will show that; and across the top of my mouth, the palate — it was broken across— . . . The upper jaw. It was broken across — the front was floating all loose, and my throat — I don’t know whether you could see from where you are sitting — there was a piece of cartilage which was bruised or broken; but it has grown back and enlarged, and it bothers in swallowing . . . Q. As a result of this injury, have you suffered pain? A. Well yes, sir. I have had headaches and I have a sore throat, and have had since I got hurt ... I can’t open my mouth as far as I used to ... Q. The width of two fingers, and that is as far as you can open it? A. Yes, sir. I Can’t eat a sandwich, if it is a big sandwich. Q. Your neck there; how is that affected? A. Well, it makes my neck sore in swallowing food and stuff. It keeps it irritated. Here is the Adam’s Apple (indicating) and right below you can see a piece of cartilage, and it is smaller when it is normal, and when it was burst, it grew back bigger. It partly occludes the food, and when I chew and swallow, it hurts . . . Q. What about your teeth? ... A. I can go this way some (indicating); I can move my lower jaw to the left some, but to the right, I can move it, see, and it goes that way (illustrating), if you work it, it will go both ways. The break was high in here, and mashed up the joint. You can hear it pop . . . These teeth hang over the front now, and they didn’t before and they ground off my jaw teeth. Q. Has the dentist worked on your teeth to try to make them fit? A. Yes sir, and he is going to work on them some more. Q. Do they fit yet? A. No, sir . . . A. My teeth in front — upper front teeth are numb — I guess the nerves —they don’t have the feeling they used to have . . .” There was medical testimony tending to corroborate appellee and also that his injuries are permanent. His hospital and medical bills amounted to approximately $793 and additional treatment by his dentist is necessary at an estimated cost of $500.

We do not attempt to detail all of the testimony, it suffices to say that the evidence was substantial and ample to support the verdict and we do not find it excessive. Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Clement v. Williams, Chancellor.
    5-1264
    297 S. W. 2d 656
    Opinion delivered January 14, 1957.

      Dudley, DuVall & Dudley, Oklahoma City, Okla.; Hardin, Barton, Hardm & Garner, for appellant.

      Williams & Gardner, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an original proceeding for a writ of prohibition against Paul X. Williams, Judge. The background facts are these: in November, 1956, William Hugh Clement filed suit for divorce against June W. Clement in the Danville District of the Yell Chancery Court; and Mrs. Clement was notified by warning order. In due time she entered her special appearance and motion to dismiss the divorce case, claiming that Mr. Clement did not have a bona fide domicile in Arkansas; and that he was in fact domiciled in the State of Oklahoma.

There was an extended hearing on this motion to dismiss. Mrs. Clement showed that Mr. Clement filed his income tax return in 1956 listing Oklahoma City as his residence; that he claimed homestead exemptions in Oklahoma in 1956; and that they lived together in Oklahoma until October 22, 1956. She offered other evidence to show that Mr. Clement did not have a bona fide domicile in Arkansas, as required by our law.

In resisting the motion to dismiss, Mr. Clement offered a number of witnesses to show that he owned a large farm at Danville; that he had claimed this farm as his home for many years, although he had business addresses in Oklahoma City, Edmond, Oklahoma, and Corsicana, Texas, and other places. He admitted his business address was in Oklahoma City, but stoutly maintained that his domicile was on his farm near Danville in Tell County, Arkansas.

Thus there was presented to the Trial Court the sharply disputed question of whether Mr. Clement had a bona fide domicile in the State of Arkansas within the purview of the holding of our cases on domicile in suits for divorce. On sharply conflicting evidence, the Chancery Court held that Mr. Clement had a bona fide domicile in Arkansas and denied Mrs. Clement’s motion to dismiss. Thereupon Mrs. Clement applied to this Court in the present case for a writ of prohibition to test the correctness of the Trial Court’s ruling on the matter of domicile.

We hold that the writ of prohibition should be denied. Appeal, rather than prohibition, is the appropriate remedy to test the correctness of the Court’s ruling where the facts are sharply disputed; and appeal is from the final judgment. In the case of Pleasant View School Dist. No. 4 of Franklin County v. Kincannon, 216 Ark. 843, 227 S. W. 2d 941, we said:

“. . . we have repeatedly held that the Supreme Court does uot ‘undertake to determine facts upon petitions for writ of prohibition.’ See Simms Oil Co. v. Jones, 192 Ark. 189, 91 S. W. 2d 258; Twin City Lines v. Cummings, 212 Ark. 569, 206 S. W. 2d 438, and Capital Transportation Co. v. Strait, 213 Ark. 571, 211 S. W. 2d 889.”

In Capital Transportation Co. v. Strait, Judge, 213 Ark. 571, 211 S. W. 2d 889, Mr. Justine Robins, speaking for this Court, quoted from the earlier case of Twin City Lines v. Cummings, 212 Ark. 569, 206 S. W. 2d 438:

“ ‘The fact of deceased’s residence at the time of her death is, therefore, a controverted and contested question which the trial court was called upon to determine from the testimony adduced on that issue. This court has repeatedly held that where the jurisdiction of a trial court depends upon a question of fact, a writ of prohibition will not lie.’ ”

In Pleasant View School District v. Kincannon, 216 Ark. 843, 227 S. W. 2d 941, in denying a petition for writ of prohibition, we said:

“The remedy by appeal is entirely adequate as to whatever judgment the Franklin Circuit Court may render in Cause No. 1100, and the writ of prohibition will not issue by this Court if the remedy by appeal be adequate. Kastor v. Eliott, 77 Ark. 148, 91 S. W. 8; Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31; Safeway Cab & Storage Co. v. Kincannon, 192 Ark. 1019, 96 S. W. 2d 7.”

Writ denied.


author: Minor W. Millwee, Associate Justice.

text:
    Capps v. Cline.
    5-1128
    297 S. W. 2d 654
    Opinion delivered January 14, 1957.

      J. Loyd Shouse and Merle Shouse, for appellant.

      A. J. Russell, for appellee.
   Minor W. Millwee, Associate Justice.

Martha Cox Cline filed her claim against the estate of her deceased sister, Elizabeth Harris, for keeping house, nursing and otherwise caring for decedent during the last three years of her life. This appeal is by certain other heirs of decedent from a judgment of the Probate Court in appellee’s favor for $500, the amount claimed by her. After the appeal was lodged here Martha Cox Cline died testate and the cause was revived in the name of her executor.

According to the proof adduced by appellee, Mrs. Harris was living alone in Eureka Springs, Arkansas, about 10 years ago when she became ill and sent for appellee to come and take care of her. Appellee left her former home and came to Eureka Springs, where she lived with, nursed and kept house for her sister until the latter’s death in March, 1956. When Zoe Harp, a friend and neighbor, frequently visited decedent and repeatedly tried to purchase certain items from her for her shop, Mrs. Harris would say: “It all belongs to Martha. She is here taking care of me and it all belongs to Martha. ’ ’ Mrs. Harris repeatedly told other friends and neighbors who visited her that “she intended for Martha to have everything”; that “she had willed everything to Martha”; and that none of her other relatives would do anything for her. Mrs. Harris was confined to her bed most of the time and her sister did all the housework and nursed and otherwise cared for her during the last three years of her life and was paid nothing for these services. The trial court sustained appellants’ objection to testimony by Martha Cline Cox that she came to live with Mrs. Harris at the latter’s request but this was shown by other witnesses. Appellants offered no testimony in contradiction of that introduced by appellee.

Appellants contend the foregoing evidence was insufficient to establish any contractual relation between appellee and her deceased sister for payment of the services performed. They rely on the rule first announced by this court in Williams v. Walden, 82 Ark. 136, 100 S. W. 898, as follows: “The presumption is that services rendered by members of the same family, and especially between father and son, are gratuitous. Such services are enjoined by the reciprocal duties of the family relation, and are always presumed to have been prompted by natural love, rather than by the promise or the hope of pecuniary reward. Courts are reluctant to infer a pecuniary recompense from performance of filial or parental duties such as humanity enjoins. Hence the burden is upon him who claims a money recompense for personal services performed, whether voluntarily, or upon the request of the other, to establish a contract expressed or implied for such consideration.” Some later cases in which the rule has been reaffirmed are: Lineback v. Smith, 140 Ark. 500, 215 S. W. 662; Clerget v. Williams, 176 Ark. 533, 3 S. W. 2d 301; Graves v. Bowles, 190 Ark. 579, 79 S. W. 2d 995; The Peoples National Bank, Adm. v. Cohn, 194 Ark. 1098, 110 S. W. 2d 42; Wilson v. Dodson, Adm., 203 Ark. 644, 158 S. W. 2d 46. While the presumption of the gratuitous nature of the services rendered between members of the same family is ordinarily less strong as the relationship between the parties becomes more remote, the rule is generally applied to the relationship between brothers or sisters. 58 Am. Jur., Work and Labor, See. 27; Graves v. Bowles, supra.

The case of Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540, involved a claim filed by a sister against her brother’s estate in which the nature of the services performed and the testimony generally were somewhat similar to those in the instant case and the jury was instructed that the claimant could not recover without establishing a special or express promise to pay her. In holding the instruction erroneous the court said: “No hard and fast rule can be laid down, and every case must be governed by its peculiar circumstances. It is incumbent upon the claimant to show that, at the time the services were rendered, it was expected by both parties that she should receive compensation, but she may show this by circumstantial as well as by direct evidence. All the surrounding circumstances under which the services were performed may be proved.”

In several cases we have also approved the following statement by Justice Shaw in the leading case of Guild v. Guild, 15 Pick. (Mass.) 129: “That it would be quite competent for the jury to infer a promise from all the circumstances of the case; and that, although the burden of proof is upon the plaintiff, as in other cases, to show an implied promise, the jury ought to be instructed that if, under all the circumstances of the case, the services were of such a nature as to lead to a reasonable belief that it was the understanding of the parties that pecuniary compensation should be made for them, then the jury should find an implied promise and a quantum meruit; but, if otherwise, then they should find that there is no implied promise.”

In Graves v. Bowles, supra, upon which appellants rely heavily, a brother filed certain claims against the estate of his deceased sister including one for nursing and caring for her during her last years. This court held substantial proof was lacking to indicate that decedent intended to repay her brother where the only competent evidence of a contractual relationship consisted of decedent’s remarks to friends that she could never repay her brother for bis kindness and the existence of an alleged will wbicb was refused probate and in which decedent left certain property to the brother after a specific bequest to her daughter.

Although there was no evidence of an express promise to pay in the instant case, we think the evidence was sufficient to warrant an inference of such a promise by the trial court. Appellee left her home to live with and perform valuable and burdensome services to her sister which were extraordinary and unusual in the sense that they were not incidental to the normal domestic relation subsisting between sisters. While the question presented is close, we hold the uncontradicted evidence sufficient to overcome the presumption of a gratuity and to sustain the finding of an implied agreement that appellee should be paid for her services. The judgment is, therefore, affirmed.


author: George Rose Smith, J.

text:
    Harris v. Helena Rice Drier, Inc.
    5-1129
    297 S. W. 2d 652
    Opinion delivered January 14, 1957.

      John C. Sheffield, for appellant.

      D. S. Ileslep, for appellee.
   George Rose Smith, J.

This suit was brought by the appellee to require R. E. Harris to satisfy of record a deed of trust executed by the appellee in 1951. Harris admits that nearly all of the indebtedness secured by the deed of trust has been paid; the only point now in controversy is whether the appellee is entitled to be credited with an item amounting to $750. The chancellor decided this issue in favor of the plaintiff and granted the relief sought.

Harris organized the appellee corporation in 1949 and was originally its principal stockholder. On April 16, 1951, Harris sold his interest in the company to the other stockholders, the unpaid purchase price being evidenced by notes totaling $102,000. The corporation executed its deed of trust to secure the debt which the new owners owed to Harris. In the contract of sale Harris agreed to pay all liabilities of the corporation that were then outstanding. The pivotal question in the case is whether the corporation was justified in honoring, over Harris’s protest, a $750 claim which was asserted against it under a written agreement that the corporation had made with D. L. Abernathy and William Eifling in 1949.

In the first paragraph of the contract with Abernathy and Eifling the corporation agreed to dry and store rice of the 1949 crop at twelve and a half cents a bushel. In a subsequent paragraph the corporation acknowledged the receipt of $750 as an advance payment for the drying and storage of rice and bound itself to reserve for one year, for the exclusive use of Abernathy and Eifling, storage capacity for 6,000 bushels. Harris has contended all along that the corporation’s original obligation related only to the 1949 crop, that as president of the company he gratuitously extended the agreement to include the 1950 crop, and that the contract expired as a result of the failure of Abernathy and Eifling to utilize the company’s drying and storage facilities in either of those years.

Abernathy and Eifling did not agree with Harris’s view that the agreement expired in 1950. In 1952 or 1953 they consulted their attorney and were told that the contract was still in force and could be availed of in a later year. They quit farming in 1954 and undertook to recover their investment in the contract by transferring it to B. C. Culp, for value. The appellee, upon the advice of its own attorney, recognized its obligation under the contract and dried 5,000 bushels of rice for Culp at fifteen cents a bushel. It now asks credit for having discharged a corporate liability that was outstanding in 1951, when the appellant agreed to satisfy all existing obligations of the corporation.

We think the appellee was correct in its conclusion that the duty to perform the 1949 contract still existed in 1954. Although the agreement initially refers only to the 1949 crop, the document later acknowledges the receipt of $750 as an advance payment for the drying and storage of rice, and the final sentence reads: “It is agreed that this contract shall remain in effect, regardless of the above specification of the number of years, until the full amount of the advance payment has been repaid.” This clause unmistakably qualifies the preceding provisions of the agreement and creates a continuing obligation on the part of the promisor.

A second contention made by the appellant involves an escrow agreement that was executed in connection with Harris’s sale of his stock in the corporation. By this agreement the purchasers’ notes were placed in escrow with a bank. Harris relies upon a paragraph in this agreement which provides that if any demand should be made against the corporation which cannot be satisfactorily adjusted by Harris and the claimant, “then the escrow agent shall continue to hold said notes subject to a final adjudication” by a court of competent jurisdiction. We do not agree with the appellant’s suggestion that this clause took from the appellee the privilege of voluntarily recognizing its duty under the 1949 contract, without first compelling the creditor to resort to litigation. This provision in the escrow agreement was undoubtedly inserted for the purpose of affording Harris an opportunity to contest the validity of claims asserted against the corporation. The present case has given Harris his day in court with reference to the various legal questions arising from the Abernathy-Eifling contract; so he has no basis for complaint.

Finally, Harris attempts to interpose certain technical objections to the transaction by which the appellee discharged its obligation under the 1949 agreement. It is said that the contract was not assignable (but see Ark. Stats. 1947, § 68-801), that the assignment to Culp should have been in writing, and that the contract called for the drying of 6,000 bushels of rice at twelve and a half cents a bushel instead of the drying of 5,000 bushels at fifteen cents. Harris is not in a position to raise these objections, for he has not been prejudiced by the appellee’s handling of the matter. Harris, by reason of his assumption of the corporate liabilities, was responsible for the $750 claim that existed under the AbernathyEifling contract. The appellee discharged that obligation, to the creditor’s satisfaction, by the rendition of services worth the face amount of the claim. In these circumstances Harris has received the benefit of the transaction and was correctly required by the trial court to satisfy the record of the mortgage indebtedness.

Affirmed.


text:
    Chavis v. Mitchell.
    5-1131
    297 S. W. 2d 660
    Opinion delivered January 14, 1957.

      A. D. Chavis, for appellant.

      Hendrix Howell, for appellee.
   Paul Ward, Associate Justice.

This appeal comes from an order of the Jefferson County Circuit Court dismissing a complaint filed by appellants, Alma and A. D. Chavis, against several defendants, appellees herein, including a Circuit Judge and two attorneys.

The complaint is long and involved (covering 40 pages in the record), contains no prayer for relief, and details no acts of misconduct or wrong doing on the part of any defendant. It does contain a general statement to the effect that the defendants had conspired in previous litigation to deprive appellants of their money and property. We gather from the complaint that this is the last (to date) of a series of efforts to avoid paying a judgment rendered against them in the Circuit Court of Cleveland County, Judge Golden (one of appellees) presiding. The complaint is a full recapitulation of all the legal procedure preceding and following the rendition of the judgment just mentioned.

Most of the essential facts relative to said litigation are set out in our opinion in the case of Chavis v. Golden, Judge, 226 Ark. 381, 290 S. W. 2d 637, and need not be repeated here.

If any of the appellees have done anything in connection with all this litigation other than what was done in open court or in accordance with approved legal practices, the complaint fails to point it out.

Fortunately for all concerned, however, appellants have clearly and succinctly defined the issues to be resolved by us on this appeal. We quote from their brief.

“There are but two questions or issues involved in this case, except the damages caused thereby:

1. Were the plaintiffs herein sureties on said cross-bond?

2. Is the summary judgment against the plaintiff, A. D. Chavis, and his wife, Alma Chavis, valid and legal, as against them?

Upon these two questions rest the rights of the plaintiffs herein, and by and through these two issues, the plaintiffs herein, sustained the damages asked for in this suit.”

The decision in the Golden case, supra, forces us to resolve both of said issues against appellants’ contentions.

1. Appellants are in error in assuming or supposing that the original judgment rendered against them was based on a cross-bond. The Golden case shows conclusively that said judgment was based on a supersedeas bond which appellants had signed. This court there said: “It is because these petitioners were sureties on this supersedeas bond that judgment was rendered against them in the circuit court.”

2. Again appellants are in error in assuming that the original judgment against them was a summary judgment. Once more the Golden case makes it clear that the judgment was not a summary judgment and, further, that it is a valid and legal judgment against appellants. In the cited case this court said: “The judgment (against appellants) was not a summary judgment under Section 29-201 Ark. Stats, as petitioners suggest, but was a judgment on the supersedeas bond . . .” We also said: “So if the petitioners herein thought that the judgment against them . . . was erroneous, they should have perfected their appeal to this court.”

In view of the above we see no occasion for further extending this opinion or this litigation.

Affirmed.

Carleton Harris, C. J., not participating.


text:
    Noble Gill Pontiac, Inc. v. Bassett.
    5-1111
    297 S. W. 2d 658
    Opinion delivered January 14, 1957.

      Roy & Roy, for appellant.

      James M. Gardner, for appellee.
   Sam Robinson, Associate Justice.

The issue here is whether the seller of an automobile who has repossessed the car under a title retaining contract can sell the vehicle for less than the amount owed thereon at the time of repossession, and then collect the deficiency from the first purchaser. Appellee, J. L. Bassett, purchased an automobile from appellant, Noble Gill Pontiac, Inc.; $1,255.76 was paid in cash, leaving a balance of $1,491.60 to be paid in monthly instalments. Among other things, the contract of purchase provides:

‘ ‘ If Purchaser defaults on any obligation under this contract or if Seller or assigns should deem itself or said Car insecure, Seller or his representative may take possession of said Car, and all equipment . . . wherever it may be found, and may enter upon premises therefor without notice or demand to Purchaser and without legal process, and Purchaser waives all claims for damage caused thereby, and the entire unpaid balance of said indebtedness shall at the option of the holder, without notice, become forthwith due and payable. Said Oar may be retained by Seller, together with any and all amounts paid thereon which shall be considered compensation for the use of said Car, and Purchaser shall pay to Seller any costs for necessary repairs because of damages to said Car; or said Car may be sold at private or public sale . . . and all laws governing such sale are hereby waived by the Purchaser. The proceeds of any sale . . . shall be applied to the amount due hereunder and the surplus, if any, shall be paid to Purchaser; and in case of a deficiency Purchaser covenants to pay forthwith the amount thereof to the Seller” . . .

It will be noticed that according to the above provision of the contract, if the seller repossesses the car he can keep it and do nothing further, or he can sell it and, if it fails to bring enough to offset the balance owed by the purchaser, the seller can collect the deficiency.

The question here is whether the seller can have both remedies — a repossession of the car and a deficiency judgment. At a time when appellee owed a balance on the car, it was repossessed by the seller, who then sold the automobile and later, filed this suit alleging that, after crediting appellee with the price received from such sale, there remained a deficiency of $583.13. The trial court held that appellant exhausted his remedies when he repossessed the car, and therefore could not collect the deficiency.

On appeal, appellant cites several Arkansas cases, contending that the reasoning in those cases, when followed to a logical conclusion, supports the theory that the seller may collect a deficiency after repossessing and reselling the automobile; that in effecting the remedy of repossession the seller is not barred from pursuing other remedies where the contract provides that such additional remedy may he had. Appellant cites as sustaining its view: Brandon v. General Motors Acceptance Corporation, 223 Ark. 850, 268 S. W. 2d 898; Southland Tractors, Inc. v. Clayton, 222 Ark. 539, 261 S. W. 2d 539; Brigham v. Thrailkill, 166 Ark. 548, 266 S. W. 958, 37 A. L. R. 97; Oliver, Wheeler, Thomas Company, Inc. v. Boon, Admr., 224 Ark. 830, 276 S. W. 2d 417; White v. Bragg, 168 Ark. 670, 273 S. W. 7; Wentworth Military Academy v. Marshall, 225 Ark. 591, 283 S. W. 2d 868. All of these Arkansas cases are distinguishable from the case at bar. There are eases, however, from other jurisdictions that support appellant’s theory. Several such cases are cited in an annotation on the subject in 25 A. L. R. 1490, but the annotation points out that Nashville Lumber Company v. Robinson, 91 Ark. 319, 121 S. W. 350, is to the contrary. That ease is controlling here; it is directly in point, the contract having a similar provision with reference to the seller repossessing the property, reselling it, and applying the sale price on the debt owed by the first purchaser, and then collecting any deficiency. In the Nashville Lumber Company case, this court said: “When this debt became due and was unpaid, the vendor, having reserved the title until the purchase price was paid, had its election to take either of two courses. It could elect to retake the property, and thus, in effect cancel the debt, or it could bring its action to recover the debt, and thus affirm the sale and waive reservation of title.” The Nashville Lumber Company case has been cited with approval many times. This court has consistently held that in a conditional sale contract where the seller reserves title to the property until the purchase price is paid, he has either one of two remedies. He can waive the right to follow and reclaim the property by bringing a separate suit for the price and recover a judgment thereon; or, he can repossess the property, but when he does so, he thereby cancels the contract of sale and has no other remedy except for repossession of the article in question. See Gordon Hollow Blast Grate Company v. Zearing, 130 Ark. 535, 198 S. W. 97. In Loden v. Paris Auto Co., 174 Ark. 720, 296 S. W. 78, the court quoted with approval from Nashville Lumber Company v. Robinson, supra, as follows: “ ‘For, if the appellant elected to retake the property, and thus in effect to cancel the debt before this suit was brought, then it could not thereafter sue to recover the purchase money also.’ Citing Butler v. Dodson, 78 Ark. 569, 94 S. W. 703; Baker v. Brown Shoe Co., 78 Ark. 501, 95 S. W. 808; White v. Beal & Fletcher Grocery Co., 65 Ark. 278, 45 S. W. 1060; Bell v. Old, 88 Ark. 99, 113 S. W. 1023. And in the case of Hollenberg Music Co. v. Barron, 100 Ark. 403, 407, 140 S. W. 582, 36 L. R. A. (N. S.) 594, Ann. Cas. 1913C, 659, this court quoted with approval from Bell v. Old, supra, as follows: ‘The principle is well established that the seller of personal property who has reserved title until the purchase price is paid may, upon default of payment, retake the property, and thereby cancel the debt, or he may sue to recover the debt, and thereby affirm the sale, in which case he looks to the debtor and not to the property; in the other case he looks to the property and not to the debtor.’ ”

“So, in such a case, the vendor has the right to elect which remedy he will pursue, and, having elected to pursue the one, he is precluded from pursuing the other.” Beene Motor Co. v. Dison, 180 Ark. 1064, 23 S. W. 2d 971, citing Nashville Lumber Co. v. Robinson. And, in McCain v. Fender, 188 Ark. 1139, 69 S. W. 2d 867, the court said: “He may not, however, have both remedies, and, where he elects to retake the property an áction to recover on the debt is barred.” Citing Nashville Lumber Co. v. Robinson. The Nashville Lumber Co. case is also cited in Gale & Company v. Wallace, 210 Ark. 161, 194 S. W. 2d 881, where the court said: “When the debt becomes due the vendor, in sales of this character, may bring an action to recover the debt, and by this he affirms the sale and waives the reservation of title; or he may elect to take the property, and by doing so, cancels the debt. He may not, however, have both remedies, and, where he elects to retake the property an action to recover on the debt is barred.” See also Provance v. Arnold Barber & Beauty Supply Company, 218 Ark. 274, 235 S. W. 2d 970, where the Nashville Lumber Company case is cited with approval, and Oliver, Wheeler, Thomas Company, Inc. v. Boon, Admr., 224 Ark. 830, 276 S. W. 2d 417. The law is firmly established in this State that the seller cannot repossess the property on a title retaining contract, and then pursue the second remedy of collecting on the debt.

Affirmed.

Carleton Harris, C. J., not participating.


text:
    Baxter v. State.
    4860
    298 S. W. 2d 47
    Opinion delivered January 21, 1957.
    [Rehearing denied February 25, 1957]

      Joe P. Melton, Peyton D. Moncrief, Virgil Roach Moncrief and John W. Moncrief, for appellant.

      Tom Gentry, Attorney General; Ben J. Harrison, Assistant Attorney General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Walter Baxter, was convicted of murder in the first degree, and the jury fixed his punishment at life imprisonment. Evidence showed that appellant had trouble with his landlady, Sallie Bitner, and that she left the house and requested neighbors to call the officers. The call was answered by Bert O. Burbanks, town marshal and police chief of DeWitt. Burbanks was shot and killed in front of the door of the Bitner home (where appellant roomed) from a shotgun blast fired (admittedly by appellant) from inside the house and through the screen. The evidence is conflicting as to whether or not the officer was reaching to open the door or was just knocking for admittance. Appellant claims that he had been repeatedly persecuted by this officer; that on many occasions he had beén stopped by Burbanks in Dewitt, and had his person searched, as well as his truck, ostensibly for illegal liquor. Baxter states that though Burbanks never found any liquor, and had no just cause for such search, he was told by the marshall in effect that he would be searched “everytime he saw him.” He further contends that at the time of the killing Burbanks was attempting to arrest him illegally, was reaching for his gun, and that he (appellant) fired in self-defense. There is, however, more than ample evidence to sustain the verdict.

Appellant, in seeking- a reversal, sets up numerous assignments of error. Among instructions requested was one to the effect that there was no evidence that Baxter had committed a felony or that the deceased had any reasonable cause to believe that Baxter had committed a felony. Requested instruction No. 6 was to the effect that appellant had not committed a misdemeanor in the presence of the deceased, and a further requested instruction was to the effect there was not sufficient evidence to show deceased had the right to arrest appellant. We think such requested instructions argumentative, and properly refused. Burns v. State, 155 Ark. 1, 243 S. W. 963. The neighbor who called Burbanks testified that she did not report to him as to who was causing the trouble, and the state’s theory is that the officer was only making an investigation of the reported disturbance. At any rate, the court properly instructed the jury as to lawful and unlawful arrests, and we think appellant’s theory of the case was adequately presented by such instructions.

Various assignments of error deal with the refusal of the court to give defendant’s instruction No. 14 which was as follows:

“Members of the jury may have read newspaper reports during the trial of this case and if any of you have read any such reports, you must disregard any such reports entirely. No jury has any right and it would be wrong for a jury to base its verdict upon newspaper reports, or to allow newspaper reports to influence or affect their verdict in the slightest extent.

‘ ‘ And in this connection the jury is further charged that it must not take into consideration, even to the slightest degree, the result of any former trial of this case. The action taken or result of any former trial must not be considered by this jury and this jury’s verdict should be the verdict of this jury and this jury only.”

a. In the first place, it would appear that the content of this instruction was a proper subject matter for voir dire. In fact, several of the veniremen were questioned as to whether or not they would be influenced by newspaper accounts which they had read. Counsel for appellant, had he so desired, might well have interrogated them as to any possible effect the reading of future newspaper accounts might have upon their deliberations. Likewise, he could have examined them as to any possible prejudice that might exist because of knowledge of appellant’s previous conviction for the same offense. Appellant was not required to take any particular juror. He did not exhaust his challenges. Apparently he was satisfied that each juror selected would be able to give him an impartial trial.

b. The requested instruction is cautionary only, and it has been held that the giving or refusing of such instruction lies within the sound discretion of the court. Rayburn v. State, 69 Ark. 177, 63 S. W. 356; Strabel v. State, 192 Wise. 452, 211 N. W. 773. Actually, the Court did admonish the jury during the trial.

Assignments of error 19 and 20 deal with the Court’s action in refusing to allow appellant to ask certain questions of the witness, Sallie Bitner, on cross examination, relative to her past morals and conduct. It is sufficient to state that the court subsequently ruled that these questions might be asked; however, appellant declined to do so.

Another assignment dealt with a question asked by the prosecuting attorney of Baxter during cross examination, it being the contention of appellant that this question informed the jury that appellant had received the death sentence in a previous trial.

Q. “Do you think the death house down at the penitentiary is as dark as the grave?” Appellant objected, and the court instructed the prosecuting attorney not to ask that question, e. g., the objection was sustained. Appellant then moved for a mistrial, and the court cautioned the jury that they must not consider the question. No further objections or exceptions were made, nor was request made for ruling on the motion, and the admonition was apparently treated as sufficient.

A number of the assignments of error deal with the remarks of the court at various intervals during the trial of the cause. We have carefully examined each of these and are of the opinion that no prejudice resulted to the appellant thereby.

Assignment No. 25 relates to the refusal of the court to permit appellant to ask the following question of witness Bradberry, (deputy marshal), in attempting to show that deceased was of a violent and reckless nature. Q. “Now, while he (deceased) was marshal there, I believe you stated you know of some three or four cars he had shot into.” The ruling of the court in holding the question improper was correct, as it is well settled that it is not proper to go into specific instances of misconduct, and deceased’s disposition could only have been shown by testimony relating to his general reputation. Burton v. State, 204 Ark. 548, 163 S. W. 2d 160, Shuffield v. State, 120 Ark. 458, 179 S. W. 650.

It is next contended that the court erred in ordering a special panel for the trial of this cause. The undisputed facts are as follows: The court discovered that the jury commissioners had not signed their certificate as to the regular list of jurors selected for the February term, 1956, (as required by Ark. Stats. 1947, § 39-208). A. special panel was then ordered, but within a few days it was discovered that the court had failed to swear in the clerk and deputy as required by § 39-209. The court accordingly required the jury commissioners to return and select a second list of special jurors. On this occasion the proper oath was administered to the commissioners and they then proceeded to select qualified jurors from the different localities of Lonoke county (where the case was being tried on a change of venue). The clerk and deputy were sworn as the law requires. The court did not quash either the first or second list, but refused to use them because the Statute was not complied with as set out above. It is sufficient to state that the record does not show an objection by appellant at any time in regard to these proceedings, which we hold renders this assignment meritless. Johnson v. State, 127 Ark. 516, 192 S. W. 895.

This court, of course, can only proceed on the record, unless it be shown in proper legal manner that said record is incorrect.

As stated at the outset, numerous other assignments of error are set out. No point would be served in listing these separately. We have examined the rulings of the court throughout the trial and find no error. The jury was properly instructed as to the law, and defendant had a fair trial.

Finding no reversible error, the cause is affirmed.

       This case here on its first appeal is found in 225 Ark. 239, 281 S. W. 2d 931.

       During the examination of one of the witnesses, there was a verbal exchange between the prosecuting attorney and appellant’s counsel relative to an affidavit which had been filed after the first trial (in support of motion for a new trial). The court remarked, “Lady and Gentlemen of the jury, you are instructed to try this case on the testimony you hear on the witness stand today and the testimony you hear in the entire case.” * * *

       Actually, the subject was presented by appellant himseli in answer to the first question propounded by his own counsel after stating his name.
      Q. “Walter, I want to ask you this question whether or not you are having any trouble with your eyes?”
      A. “Yes, sir, since I have been in the death house over there so long my eyes are awful weak.”

       This referred to alleged actions in another state.

       An order was entered on March 28, 1956, finding that said jury commissioners were summonsed back before the court to correct the error, and after being administered the oath required by law, each commissioner, on being examined by the court, stated that it was an omission on their part in failing to certify said jury lists. Each commissioner stated he had examined the list of jurors selected by them, and that the names contained therein were the names and persons they selected to serve at the regular February term, 1956, and they, on the above date, did certify to said list in open court as being correct.


text:
    Kimberling v. Rogers.
    5-1118
    297 S. W. 2d 772
    Opinion delivered January 21, 1957.

      Denver L. Dudley, for appellant.

      Fred M. Piclcens, for appellee.
   Ed. F. McFaddin, Associate Justice.

This^ is a child custody case involving a little boy nine years of age. The litigants are the paternal grandmother, appellant, and the mother, appellee. In the decree from which comes this appeal the Chancellor awarded the custody of the little boy to the mother for the school term and to the grandmother for the vacation period; and the grandmother brings this appeal.

The custody of this little boy, Larry Kimberling, has been the cause of frequent litigation. First: in September, 1949, Junior Kimberling obtained a divorce from Wanda Kimberling and the Court gave Wanda Kimberling, the mother, the custody of Larry, then thirteen months old. Second: Wanda, being unable to properly care for Larry, persuaded the paternal grandparents, Mr. and Mrs. Mark Kimberling, to take Larry; and later, when Wanda wanted her child, the grandparents resisted. There was a habeas corpus proceeding (see Kimberling v. Rogers, 223 Ark. 348, 265 S. W. 2d 952); and we affirmed the judgment of the Circuit Court, which had awarded the custody to the mother.

Third: thereupon the grandparents — Mr. and Mrs. Mark Kimberling —■ intervened in the original 1949 divorce suit, which had awarded the exclusive custody to the mother. In their intervention the grandparents alleged and established by evidence that in October, 1949, Wanda had left Larry with the grandparents; that he had been with them in a good, Christian home; that Junior Kimberling (the boy’s father) had been in the armed forces until his death recently; that the success of Wanda’s recent marriage to Mr. Rogers was yet to be determined; and that the best interests of Larry — then seven years old — would be served by leaving him with the grandparents, Mr. and Mrs. Mark Kimberling. On May 17, 1954, the Chancery Court decree awarded Larry’s custody to the grandparents for the school term and to the mother, Wanda, for the vacation term.

Fourth (the present litigation): after the decree of May 17,1954, Mr. Mark Kimberling — the grandfather— died; and thereupon, Wanda ■ — ■ the mother — filed the present petition, praying that she have Larry’s entire custody. After a patient hearing, the Chancellor entered a decree awarding Larry’s custody to Wanda, the mother, during the school term, and to Mrs. Rosie Kimberling, the grandmother, for the vacation period. This appeal is from that decree.

I. Changed Conditions. Appellant says that the May 1954 decree should not be disturbed because there has been no change of conditions. But the death of the grandfather, Mr. Mark Kimberling, and the success of Wanda’s marriage to Mr. Rogers, constitute sufficient changes in conditions to justify the Court in re-examining its former decree.

II. The Best Interests Of The Child. This is the polestar in these child custody cases. Appellant cites Brown v. Brown, 218 Ark. 624, 238 S. W. 2d 482, and Griffen v. Newcom, 219 Ark. 146, 240 S. W. 2d 648, as justifying a reversal of the Chancellor’s decree. Appellee cites Perkins v. Perkins, 226 Ark. 765, 293 S. W. 2d 889, as justifying an affirmance of the chancery decree. Because human nature is as it is, no two child custody cases can ever he exactly the same; so the policy is to examine our other similar child custody cases and then see which one more nearly resembles the case at bar. The same Chancellor who heard the witnesses and entered the decree of May, 1954, also heard the witnesses and made the decree now attacked. Here are pertinent excerpts from his opinion at the close of the hearing from whence comes this appeal:

“This court is concerned with one thing only, that is the welfare of this little fellow in the light of those closest to him. I have seen the little fellow and I would be tickled to take him home with me and end the whole argument. Mark Kimberling, Senior, and Mrs. Kimberling, I think, have proved the right to the eternal love and respect of this little man and I think they have given him a good home, a good clean Christian home. I think they are to be highly commended. I do think they merely did what their son should have done.

“It is not easy for the Court. The entire life of this little fellow can so easily be turned one way or the other if the Court makes a mistake; and as I said, unfortunately there is no completely happy answer to a problem of this kind . . .

“I honestly believe this mother and her present husband are trying honestly and sincerely to establish a good home. Banking on that theory, but not gambling too much on the boy’s part, I want to give them an opportunity to prove their sincerity bit by bit. As the counsel on both sides fully understand, the court always retains jurisdiction of a matter of this kind, and custody can be changed. I hate to divide custody, but I have seen that feeling is so high that it will be impossible for visits to continue in the future with any satisfaction to anybody. I want this boy, if possible, to come to where he will regard his mother as his mother and have love for his mother as he should have . . .”

As aforesaid, the Chancery Court awarded the custody to the mother during the school term and to the grandmother during the vacation. It would serve no useful purpose to abstract and recite the evidence. We have reached the conclusion that the decree should be affirmed because we cannot say that the Chancellor decided against the preponderance of the evidence. His familiarity with the situation is eloquently expressed by the quoted portions of his opinion. He has power to modify the decree should circumstances so require.

Affirmed.

       Appellee claims that the present appeal was not taken in due time. There is no merit to such contention. Sec. 27-2106.1 Ark. Stats, (from Sec. 2 of Act 555 of 1953) says “that the notice of appeal must be filed within 30 days from the entry of the judgment or decree appealed from. . . .” Here the judgment was not actually filed for entry until February 28, 1956; and the notice of appeal was duly filed and given on March 24, 1956. So the notice of appeal was within 30 days from the entry of the judgment.


author: Minor W. Millwee, J.

text:
    McVay v. Stupenti.
    5-1140
    297 S. W. 2d 769
    Opinion delivered January 21, 1957.

      J. H. Spears, for appellant.

      Hale S Fogleman, for appellee.
   Minor W. Millwee, J.

This is a proceeding by appellant, Dr. L. C. McYay, to establish a private road across certain lands belonging to appellee, U. Stupenti, under Ark. Stats., Secs. 76-110 and 76-111. The lands are near the intersection of U. S. Highways 61, 63 and 64 west of Marion in Crittenden County, Arkansas.

Appellant owns lands along a drainage canal which failed to follow the property lines between his land and that owned by appellee along TJ. S. Highway 63 so that a small strip of appellant’s land was left east of the canal and immediately west of appellee’s land. The strip comprises about 2 1/2 acres along a ditch bank and is about 97 feet wide at the widest point and tapers to a point on the north end and to a width of 14 to 20 feet at the south end. Appellant’s land is unimproved and for several years a portion of it has been cultivated by his son-in-law. Ingress and egress to and from the land to Highway 63 for purposes of cultivating and harvesting crops has been maintained by crossing the tract owned by appellee near a tenant house along a ditch bank and a turn row which appellee used in the cultivation of his land. Appellee has at all times consented and never objected to this use of his land by the appellant.

After some negotiations between the parties for an exchange of lands or the construction of a road, appellant filed the instant proceeding in county court alleging he was without any means of access to his lands which were so situated as to render it necessary that he have a private road across appellee’s lands to Highway 63 and asked that viewers be appointed to establish such road in accordance with the statute. The county court first refused to appoint viewers but on appeal to circuit court was directed to do so and to determine whether a road should be established. On remand viewers were appointed who filed majority and minority reports. Hearings and personal inspections of the premises by the county court and the circuit court, on appeal, resulted in a judgment and findings that no present necessity existed for the establishment of a private road as sought by appellant and that the petition should be denied.

Appellant argues the trial court erred in failing to follow the report of the two majority viewers by granting the petition of appellant. We think a proper determination of such contention depends upon whether or not the evidence is sufficient to sustain the court’s finding that no present necessity existed for the establishment of the road as sought by appellant. In making this determination the evidence must be viewed in the light most favorable to appellee under our settled rule.

The statute in question provides that when the land of any person is so situated as to render it necessary for him to have a private road therefrom to a public road over the land of another who shall refuse to allow it then the county court shall on the petition of such owner appoint viewers to lay off said road. Upon their report to the county court an order shall be made establishing said road provided the court be of the opinion that it is necessary for petitioner to have it. The statute also provides that the report of the viewers shall describe the route of the road and the damages to the owners of lands through which it passes and that the road shall be laid out so as to produce the least inconvenience to the parties through whose land it passes.

We have held that a road established under the statute to become a public road in the sense that it is open to the use of all who see fit to use it. Roberts v. Williams, 15 Ark. 43; Pippin v. May, 78 Ark. 18, 93 S. W. 64. In construing the statute we have also held that, while it is not required that a petitioner establish an absolute necessity for such a road, mere inconvenience is not sufficient to entitle one to condemn a way over another’s lands which may be taken only upon a showing of reasonable necessity. Houston v. Hanby, 149 Ark. 486, 232 S. W. 930; Mohr v. Mayberry, 192 Ark. 324, 90 S. W. 2d 963; St. Louis-San Francisco Ry. Co. v. Logue, 216 Ark. 64, 224 S. W. 2d 42. In Pippin v. May, supra, the court said: “In determining whether such a road is. necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through ■whose place it is proposed to extend it. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.”

The report of the majority viewers appointed by the county court stated: “We feel that Dr. McYay should be permitted to cross the Stupenti property in order to get to his farm land. We recommend that this crossing be provided along a ditch bank at the rear of a tenant house on the Stupenti property. There is ample space at this location for an access road, and it would not disrupt Mr. Stupenti’s farming operations at this point. Since the Stupenti property will not be damaged at this location, we do not recommend that Dr. McVay pay any damages to Mr. Stupenti.”

One of the majority viewers called as a witness by the appellant testified there was no intent on their part to recommend the construction of a permanent road across appellee’s lands; that since their investigation disclosed that appellee had never refused appellant entrance to his land by the “crossing” already in use which could be used as long as appellant was “out there,” it was their intention that he continue to go across appellee’s land in the future as he had in the past. Apparently it was for this reason that they also declined to recommend that appellant pay any damages despite the fact that the land to be taken had an estimated market value of from $300.00 to $1,500 because it fronted on a U. S. Highway near a busy intersection. While appellant testified he was “sorta thinking” of improving or developing his land “some day,” there was no indication that he intended to do so in the near future. Appellant’s engineer stated that an access road to the land from U. S. Highway 64 near the south end of the property could be provided by the erection of two bridges at a cost of $1,500 to $2,000 without the inconvenience to appellee of crossing his strip of land at its widest point.

In none of the cases relied on by appellant did the petitioner already have permissive access to the public highway over the very route that the viewers determined he should, or should not, have a private road. Under all the facts and circumstances we hold the evidence sufficient to sustain the finding that there was no reasonable necessity for the establishment of the road in question.

Affirmed.


text:
    Williams v. State.
    4858
    297 S. W. 2d 771
    Opinion delivered January 21, 1957.

      Pat Robinson and Patsy Robinson, for appellant.

      Tom Gentry, Attorney General; William M. Dabbs, Jr., Assistant Attorney General, for appellee.
   George Rose Smith, J.

The appellant was convicted of having murdered Arnold Hutchison and was sentenced to life imprisonment. The evidence is amply sufficient to support the jury’s finding of guilt. The homicide arose from a dice game that was in progress after midnight on the morning of May 12, 1956, at the home of Fred Wesley in the city of Stamps. According to the state’s testimony, Hutchison refused to lend Williams two dollars so that the latter might enter the game. After an exchange of heated words Williams went home and got his shotgun. The state’s witnesses say that the accused did not re-enter the Wesley house when he returned with the shotgun; from the steps he called to one of the players to move out of the way and then fired through the screen door, killing Hutchison. This testimony fully sustains the charge of murder in the first degree.

For reversal it is argued that the court erred in arraigning Williams before he was arrested. This contention is based on the fact that the bench warrant in the record was served on May 15, although the accused had entered his plea of not guilty on the preceding day. The sheriff testified, however, that Williams voluntarily surrendered himself on May 12, a few hours after the shooting, and was put in jail on the same day. Even if Williams was not still under arrest when he was arraigned two days later he made no objection at the time. The record reflects that when the case came on to be heard the appellant’s attorney announced his readiness for trial (though a motion for a continuance was filed and overruled). By such an announcement the accused waives his right to a formal arraignment. Bettis v. State, 164 Ark. 17, 261 S. W. 46. If the arraignment may be waived in its entirety it follows that a supposed defect in the arraignment can also be waived; for the whole includes its parts.

The sheriff testified that on the afternoon of May 12 AVilliams signed a confession, and while the sheriff was on the witness stand this document was handed to him by the prosecuting attorney, to refresh the witness’s memory. The defense objected to this procedure, but, by failing to save an exception, apparently acquiesced in the court’s adverse ruling. In the absence of an exception the asserted error is not available on appeal. Walker v. State, 138 Ark. 517, 212 S. W. 319.

The appellant’s attorney was correctly permitted to examine the written confession and, during the accused’s examination in chief, exhibited it to the witness in eliciting a denial of a damaging statement in the confession. Later on, when the prosecuting attorney sought to cross-examine Williams about other statements in the confession, the defense objected on the ground that the paper had not been offered in evidence. Quite apart from the possibility that the prosecution’s questions were a proper method of laying the foundation for impeachment by proof of prior inconsistent statements, voluntarily made, the defense had gone into the matter on direct examination and therefore could not object to its further development on cross examination. Robinson v. State, 174 Ark. 899, 298 S. W. 349.

We have studied the other assignments of error and find them to be without merit. Affirmed.


text:
    Peairs v. State.
    4855
    297 S. W. 2d 775
    Opinion delivered January 21, 1957.

      McMath, Leatherman d> Woods, for appellant.

      Tom Gentry, Attorney -General; Ben J. Harrison, Assistant Attorney General, for appellee.
   Paul Ward, Associate Justice.

This appeal challenges the constitutionality of the criminal provision of Ark. Stats. 51-601 as being in violation of Art. 2, Sec. 16, of the constitution of the State of Arkansas, presenting a question of first impression to this court.

The section above mentioned consists of two legislative acts, viz: Act 146 of 1895 and Act 563 of 1923. The first act provides generally that laborers and material-men shall have a lien on the property constructed or repaired, and provides how said lien shall be perfected and enforced. The second act added to the first act a criminal provision for failure of the contractor to satisfy the lien, reading as follows:

“Any original or principal contractor or his assignee who shall be paid the contract price or any portion thereof, and who shall fail or refuse to discharge the liens created by this section, to the extent of the contract price received by him, shall be deemed guilty of an offense and punishable as follows:” (If the amount received by the contractor exceeds $10.00, he shall be deemed guilty of a felony, and if less than $10.00, he shall be deemed guilty of a misdemeanor.)

An information charged appellant with a violation of the above criminal statute based on the following factual situation: Appellant, Allen M. Peairs, entered into a contract with the Pan-Am Southern Corporation to build certain large oil tanks in El Dorado. Peairs subcontracted the work to the Baker Tank Company, which furnished the materials and built the oil tanks in question. The Pan-Am Company paid appellant the contract price, but appellant failed to pay the Baker Tank Company. The Baker Tank Company perfected its lien against the property of Pan-Am but appellant failed to discharge the lien.

Appellant was tried and convicted of violating the criminal portion of Section 51-601, and was sentenced to one year in the penitentiary. It is his contention on this appeal that the said criminal statute violates Article 2, Section 16, of the Arkansas Constitution, which reads as follows: “No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.” After careful consideration we have concluded that appellant’s contention must be sustained.

At the very outset we are forcibly impressed with the absence of any language in Section 51-601 which makes fraud or fraudulent intent a part or prerequisite of the criminal offense. It is the absence of such language in the statutes which makes it violative of that portion of the constitution above quoted. As the statute now reads, a contractor would be guilty of a felony if he fails, for any reason, “to discharge the liens,” of, in other words, if he fails to pay a debt. It is not difficult to imagine many situations in which a contractor might be prevented from paying the subcontractor or laborers even though he may have acted in all good faith and without any intent to defraud any one, yet, under the wording of the statute, he could be convicted of a felony.

Although this court has not had occasion to pass upon the question under consideration, other jurisdictions have, and those decisions support the conclusion we have reached. In the case of Commercial National Bank of Sturgis v. Smith, 60 S. D. 376; 244 N. W. 521, the Supreme Court of South Dakota, in dealing with a statute somewhat similar to ours, had this to say: “In our opinion the legislature is without authority to provide that a contractor shall be deemed guilty of a crime punishable by imprisonment for failure to pay the claims of creditors furnishing labor and materials from money paid to him under contract,” holding said statute unconstitutional. In this opinion the court referred to People v. Holder, 53 Cal. App. 45, 199 P. 832, and quoted therefrom as follows: “In our opinion the legislature is without the power to do either of these things. That is, the legislature has not the power to provide that a contractor who breaches his agreement to pay a certain class of debts with money that is his own, shall, for that reason alone, be deemed guilty of a crime punishable with imprisonment.”

In an early case, the Supreme Court of Minnesota, in the case of Meyer v. Berlandi, et al., 39 Minn. 438, 40 N. W. 513, in speaking of the criminal provision of a lien statute, had this to say:

‘ ‘ Section 3, if not unconstitutional on other grounds, is clearly repugnant to Section 12, Art. 1, of the constitution of the state, prohibiting imprisonment for debt. It is not necessary that a contractor be guilty of any fraud or other tort in order to subject him to the penalties of this section. If he has received his pay from the owner of the property, and owes a debt due on contract to one of his laborers or materialmen which he is unable to pay, he is guilty of obtaining money on false .pretenses, and liable to imprisonmént in the penitentiary. No matter how honestly he may have paid over the last dollar which he has received on his contract, yet if, through honest mistake, he took the job too cheap, or if by unforseen accident it cost more than he anticipated,, and for that reason he cannot pay all that he owes for labor or material, he is a felon. This is returning with a vengeance to the old barbarous fiction upon which imprisonment for debt was originally based.”

Later the legislature of Minnesota changed the statute referred to above, making the intent to defraud a necessary element of the crime. The amended statute was held constitutional in the case of State v. Harris, 134 Minn. 35, 158 N. W. 829, where the court, in referring to the original statute and to the decision in the Meyer case, supra, said: “When, however, that case is examined, it will be found to sustain the legislation here in question, rather than to overturn it. The ‘intent to defraud,? which is the gist of the Act of 1915 (Amended Act), was not contained in the act there under consideration, and it is the ‘intent to defraud’ which makes unlawful and criminal the acts prohibited by the statute.” The same line of reasoning, when applied to the statute under consideration, forces the conclusion that it violates the constitutional prohibition against imprisonment for debt in the absence of fraud.

The Supreme Court of the United States in the early case of Bailey v. Alabama, 219 U. S. 219, 31 S. Ct. 145, 55 L. Ed. 191, in a lengthy and well considered opinion, discussed an Alabama statute which, in general, provided that any person who, with intent to defraud his employer, entered into a written contract for service and thereby obtained money or property, and who failed to perform said services would be guilty of a criminal offense. As set forth in the opinion, however, this statute was later amended so as to provide that the intent to defraud would be presumed if the service was not in fact rendered. In holding the amended statute unconstitutional the court noted that the original statute had been upheld in the case of Ex Parte Riley, 94 Alabama 82, 10 So. 528, on the ground that it was necessary to prove “the intent to defraud,” and that this was not necessary in the amended statute. In that case the court pointed out it was no longer necessary for the prosecution to establish the intent to defraud which, as the court said, constituted the gist of the offense.

The Bailey case has been cited with approval many tines by the United States Supreme Court and has in no instance been overruled. Some of these cases are: Pollock v. Williams, Sheriff, (Fla.), 322 U. S. 4, 23; 64 S. Ct. 792, 88 L. Ed. 1095; Morrison, et al. v. California, 291 U. S. 82, 31 S. Ct. 145, 55 L. Ed. 191; Bandini Co. v. Superior Court, 284 U. S. 8, 52 S. Ct. 103, 76 L. Ed. 136; and Minski v. U. S., 131 F. 2d 614.

The state thinks the constitutionality of the questioned statute is sustained by the holdings in State v. Hertzog, 92 S. C. 14, 75 S. E. 374, and State v. Williams, et al., 133 Wash. 121, 233 Pac. 285, but we do not agree. The Hertzog case dealt with a constitutional provision like ours, but the statute was different. The South Carolina statute created a lien (in favor of the laborer or materialman) on the money paid by the owner to the contractor, and the defendant was charged with, and convicted for, violating a general statute “which, in general terms, made a criminal offense the disposition of any personal property upon which a lien exists,” etc. The Williams case dealt with, a statute which started out with this language:

“Every person who, with intent to deprive or defraud, the owner thereof,” etc. (emphasis supplied).

The above quoted language was what convinced the Washington court the statute was constitutional. It is the lack of the same or similar language in Sec. 51-601 which forces us to conclude that said section violates Art. 2. Sec. 16 of our constitution.

Reversed and dismissed.