author: Darrell Hickman, Justice. John A. Fogleman, Justice,

text:
    Adolphous SCOTT, Jr. v. STATE of Arkansas
    CR 78-15
    566 S.W. 2d 737
    Opinion delivered June 12, 1978
    (In Banc)

      Matthews & Sanders, by: Roy Gene Sanders, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Adolphous Scott, Jr. was convicted of capital murder in the Hot Spring County Circuit Court for the killing of Henry Puckett. After a jury trial, Scott was sentenced to life imprisonment without parole. He raises ten ¿negations of error on appeal. We find merit in many of these points and reverse and remand the case.

Scott, who resided, in Benton at the time of the killing, had been charged in June, 1973, with the first degree assault of V. O. McGuire. He was charged with shooting the store owner in Benton during the course of an argument. After a short period of time in jail, he was released on bond.

On July 31, 1973, Henry Puckett was killed during a robbery of his pawn shop. Scott was considered as a suspect in the killing. The law enforcement authorities had received information about a green Volkswagen, similar to Scott’s, having been in the vicinity at the time of the killing. Scott was brought in for questioning, taken to Little Rock for a lie detector test and a trace metal examination, returned to Benton and released. Apparently there was insufficient evidence to justify holding Scott for the Puckett killing.

In September, 1973, McGuire died. The assault charge against Scott was changed to first degree murder. Scott was immediately arrested and his bond was revoked.

There was considerable unrest in the area about the McGuire death. There were also racial tensions in the community since both victims were white and Scott is black. Scott stated many times that he feared for his safety while in jail. On one occasion before his trial for the McGuire killing an unknown person was seen with a gun outside the jail in which Scott was being held.

The day before the trial for the McGuire killing, Scott was taken to the prosecuting attorney’s office for questioning about the Puckett killing. The sheriff testified that Scott had initiated this meeting. Scott denied this and further stated that he had refused to talk to the prosecutor until his attorney had been called. The prosecutor did call Scott’s attorney. When the attorney refused to give his permission to an interview, Scott was returned to his cell.

This.first trial ended with a second degree murder conviction and a twenty-one year prison sentence for Scott. There were several outbursts during the trial. At least two people were arrested for disturbing the peace after the verdict was announced. Scott’s lawyer left town within ten or fifteen minutes after the verdict was handed down.

Scott was returned to jail. He indicated that he was afraid for his life and was eager to be taken to the penitentiary as soon as possible. He testified that he expressed these fears to the sheriff, but was told that he was not going to the penitentiary until he confessed to the Puckett killing.

The day after Scott’s first trial he wrote out a statement in longhand outlining the details of the Puckett killing. The essence of the statement was that Scott drove his car to the pawn shop under some duress, that someone else shot Puckett, and that Scott had no idea that Puckett was going to be killed. The statement also contained this curious phrase:

I have been read my rights and I understand that anything that I write in this statement can and will be held against me. I also understand that this statement and testimonial is not valid without the presence of my attorney or the consent of his word. [Emphasis added.]

The statement was not witnessed by any of the police officers present while Scott was writing it.

The sheriff and the other officers present at the jail as Scott was writing out this statement indicated that it was a totally voluntary act on Scott’s part. In fact, the sheriff testified that he had no interest in Scott making a statement clearing up the Puckett killing. The statement was not delivered to the sheriff until after Scott arrived at the penitentiary later that same day — October 17, 1973.

There was little evidence gathered after October 17, 1973, implicating Scott in the Puckett killing. The prosecuting attorney did allude to some investigation the summer before trial when depositions were taken in Michigan from Scott’s alleged accomplice. In any event, no charges were filed against Scott until July 1, 1976 — almost three years later. Scott’s attorney filed a motion to dismiss the charges because of delay. During argument on this motion the state failed to offer any real reason for the delay.

Scott claims that the delay prevented him from using two alibi witnesses, and therefore that he suffered irreparable prejudice. One of those witnesses was Scott’s former wife. Scott argued that if his wife had been present at trial she would have testified about his alibi. He stated that he had not seen his wife since about a year after his imprisonment and that he did not know her whereabouts. He said that she had divorced him. Scott proffered evidence that a friend of his, with whom he claimed he was playing basketball at the time of the Puckett killing, had died a year and a half after the killing. The state stipulated that if the two witnesses were present they would testify as Scott’s attorney represented.

Apparently the court and the prosecutor assumed that because there is no statute of limitations for murder, charges can be filed at any time. See Ark. Stat. Ann. § 41-104(1) (Repl. 1977). The state did not really respond to the motion to dismiss. If it cannot be shown that the state had good cause for its delay in filing the charges against Scott, then the charges should be dismissed. We cannot say from the record that the state does not have evidence that the matter was being investigated during this three-year gap. A new sheriff and prosecuting attorney were in office at the time these charges against Scott were filed. We cannot tell from the record if the former sheriff and prosecutor pursued this matter after receiving Scott’s confession. Therefore, the state will be given an opportunity to explain the delay.

Just because the statute of limitations does not run on a murder charge does not mean that a person can be brought to trial at any time. The prosecution cannot delay simply for the purpose of gaining a tactical advantage over the accused. The United States Supreme Court has noted that there may be circumstances where prejudice occurs from prosecutorial delay which require the dismissal of charges. United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2004, 52 L. Ed. 2d 752 (1977), reh. den. 434 U.S. 81. Since Scott was able to show prejudice to his defense, unless the state can come forward with a satisfactory reason for the delay, the charges should be dismissed.

Scott also argues that the case should have been dismissed because of failure to bring him before a judicial officer without unnecessary delay. We have mentioned that charges were not filed against Scott until almost three years after the offense occurred. The prison authorities received the service of process and attached it to Scott’s file. However, there is no evidence that Scott was personally served with a copy of the warrant. He was not arraigned until April 19, 1977. Counsel had been appointed for him on December 1, 1976; however, from the time the charges were filed until the trial, three different lawyers had been appointed to represent Scott.

In view of the fact that Scott was in the penitentiary at the time the charges were filed, and that one continuance was at the request of defense counsel, we cannot say that the charges should be dismissed because of failure to bring him before a judicial officer as required by Rule 8.1, Rules of Criminal Procedure (Repl. 1977). However, the fact that Scott was not promptly brought before a judicial officer and arraigned lends weight to Scott’s motion to dismiss the charges because of delay, and necessarily enters into our judgment requiring the state to offer a satisfactory explanation.

We hold that Scott’s statement was clearly not intended to be used against him in court. He stated that he understood the statement was invalid unless his attorney consented to its being given to the law enforcement authorities. No such consent was shown. Since Scott made this statement while in custody, the state has the burden of proving that it was voluntarily made. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968).

The evidence offered by the state consisted of statements by the law enforcement officers that Scott simply wanted to get this matter off his conscience and asked for paper to write out a statement. It is peculiar that no officer witnessed the statement. It is also peculiar that the statement was not delivered to the sheriff until Scott was taken to the penitentiary. This is particularly true in light of Scott’s assertion that he feared for his life in jail, but was told he would not be taken to the prison unless he confessed. Scott was obviously under considerable pressure. We have already mentioned the incident in the prosecutor’s office before the McGuire trial, and the unknown assailant outside Scott’s jail cell. There was a great deal of unrest in the community. When we consider the totality of the circumstances, we must conclude that Scott’s statement was involuntary and should have been suppressed. Loomis v. State, 261 Ark. 803, 551 S.W. 2d 546 (1977).

Scott also argues that the prosecuting attorney persisted in attempting to place the results of Scott’s polygraph examination before the jury. Whether this was reversible error, or warranted the drastic remedy of mistrial is a close question. Scott’s attorney, during an outline of the events that led to trial, mentioned in opening statement that Scott had taken a polygraph test the day he was first arrested but released for the Puckett killing. The prosecutor obviously wanted to get the results of that test before the jury. The matter came up during the direct examination of a state rebuttal witness when the prosecutor attempted to ask the witness for the results of the test.

The court had previously ruled in chambers that the witness could be asked if Scott had taken the polygraph, but that the results could not be disclosed. Scott’s counsel had asked the court to rule that the witness could not be asked any question about the test. The court denied this request, but specifically ruled that the results of the test were not admissible on direct examination. The court then denied in chambers a request that Scott’s counsel not be required to make his objections in front of the jury; in open court, the trial court also denied Scott’s counsel’s request for a continuing objection, as opposed to objecting after each question.

The prosecutor then asked the witness about the results of the polygraph examination. Scott’s counsel objected and was granted an in-chambers hearing on the question. However, before going in chambers the prosecutor, in the presence of the jury, asked:

MR. COLE: Your Honor, I didn’t hear the objection. Is the Court not allowing me to go into the results?
THE COURT: No, sir, not at this time.

Scott’s attorney then moved for mistrial. The motion was denied, and the prosecutor passed the witness. No admonition was requested, nor was one given to the jury.

Scott’s argument on appeal is that the trial court should have granted his motion for mistrial since the prosecuting attorney purposely asked about the results of the polygraph test despite the trial court’s specific ruling to not mention the results. We find no prejudicial error in this situation. Defense counsel first raised the issue during opening statement. This raised an inference that Scott’s test results were favorable. While the prosecutor’s action raised a negative inference, the actual results of the test were never before the jury. Scott may have been entitled to an admonition that the jury not consider the evidence, but since none was requested we find no error in the trial court’s failure to admonish the jury. See Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976). While the prosecutor’s actions may have warranted an admonition by the trial court, we cannot say that the drastic remedy of mistrial was required.

The trial court committed error in asserting a nonexistent husband-wife privilege for a prosecuting witness. One of the deputy sheriffs had testified that he never intimidated prisoners into signing confessions. His former wife was later called as a witness and, according to a proffer of evidence, would have testified that the deputy sheriff used to boast of intimidating prisoners. The trial court, on its own motion, inv ^ked the husband-wife privilege on behalf of the deputy sheriff. Such a privilege can only be exercised by a defendant in a criminal case. Rule 504(c), Ark. Stat. Ann. § 28-1001 (Supp. 1977).

The court also committed error when it allowed the state to have read into evidence a “Firearm Transaction Record” that had been taken from Puckett’s store. The document had not been properly authenticated by the police officer who testified about it. In an apparent effort to cure the authentication problem, the court allowed the witness to read the document rather than present it to the jury.

This document would have been admissible as a business record if it had been made available to the defendant according to the rules of evidence. Rule 803 (6), Ark. Stat. Ann. § 28-1001 (Supp. 1977). Since the defendant had not had the opportunity to see it before trial, and since it had not otherwise been properly identified, we hold that it was reversible error to allow its contents to be read to the jury.

The trial court also erroneously permitted testimony by a witness about an out-of-court identification of Scott’s Volkswagen. As previously mentioned, several witnesses identified a green Volkswagen in the vicinity of Puckett’s store at the time of the killing. Later Scott’s vehicle was illegally seized by the police and impounded. The trial court allowed a witness to testify the illegally impounded vehicle was the one she had seen near Puckett’s pawn shop on the day of the killing. Permitting this testimony was clearly erroneous. See Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909 (1975).

Several other allegations of error were made by Scott. However, we find no merit to any of these.

This case is reversed and remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

George Rose Smith, Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I dissent only from the remand of this case. As pointed out in the majority opinion, the state failed to file ¿ny response to appellant’s motion to dismiss. The state had an opportunity, by a response, to state the reason for the delay. Furthermore, the state did not offer one word of testimony or any oral explanation for this unusual lapse of time before charges were filed. Appellant’s guns were not masked. His position was clearly stated by his motion and by the stipulated evidence. If other questions had not been raised on appeal, this court would not have been justified in giving the state an opportunity to file a belated response or make a belated showing of good reasons for the delay in filing charges. There was nothing speculative or premature in appellant’s due process claim. The testimony of the unavailable witness was not cumulative, so prejudice was clearly established. Although I do not consider the dimmed memories of other witnesses controlling on the question, this condition was obvious.

If the state had reasons, the prosecuting attorney must have been well aware of them. It is not reasonable to assume that the prosecuting attorney filed these charges after the prolonged delay, without being aware of the reason for delay. It is reasonable to believe that he would have presented them, if they justified the delay. Instead, the prosecuting attorney stood mute, except for the stipulation entered into. Not a word of testimony or a bit of evidence was introduced at the trial that was not available to the state at the time of appellant’s involuntary confession. Although I do not disagree with the majority opinion on the other points for reversal, I would never reach them, because I would reverse and dismiss on the ground that the trial court erred in denying appellant’s motion to dismiss because of the delay in filing charges.

I am authorized to state that Mr. Justice George Rose Smith and Mr. Justice Byrd join in this opinion.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    Dennis GLICK v. STATE of Arkansas
    CR 77-206
    566 S.W. 2d 728
    Opinion delivered June 12, 1978

      Harold L. Hall, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   PER CURIAM

On March 3, 1974, appellant plead guilty to six counts of rape in the Pulaski County Circuit Court, First Division. He received six sixty-year sentences, to run concurrently, on these charges. Appellant later sought to set aside the plea agreement as involuntary and for other reasons, pursuant to Rule 37, Rules of Criminal Procedure (Repl. 1977). Counsel was appointed and a hearing was held on April 13, 1977. The petition was denied, and from that opinion comes this appeal.

Appellant’s attorney has filed a motion to be relieved as attorney of record, but in compliance with Anders v. California, 386 U.S. 738 (1967), has submitted a brief stating that there is no merit to the appeal. On December 28, 1977, appellant was notified of his right to file, within thirty (30) days, a pro se brief raising any issues he desired to have presented to this Court. Appellant has failed to file such a brief. The State concurs that there is no merit to this appeal.

Appellant raises several points for reversal. These deal with whether he was properly instructed about his rights at the time of the plea agreement and go to a determination of whether the plea was freely and voluntarily given. After a careful consideration of the record, we have determined that the plea was knowingly and voluntarily made and that the standards that we have set forth for such a determination were followed by the trial court. See Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974).

One other point, not raised by appellant, should be discussed. At the plea agreement the appellant was represented by a deputy public defender of the Sixth Judicial District. At this postconviction relief hearing, Harold Hall, Public Defender for the district, represented appellant. On its face it might appear that a conflict of interest arose which would have precluded Mr. Hall from representing appellant. See Hill v. State, 263 Ark. 478, 566 S.W. 2d 127 (1978). This case is readily distinguishable because in Hill, supra, the assistant public defender was still a member of the public defender’s staff at the time the ineffective assistance of counsel allegation was made. We noted that when attorneys work with each other on a day to day basis different counsel should be appointed to represent the defendant during post-conviction proceedings. In this case Robert Lowery, the assistant public defender who represented appellant at the plea agreement, had left the office when Mr. Hall was appointed to represent the appellant. Since they were no longer practicing together, the conflict that arose in Hill, supra, was not present in this case.

Upon review' of the record and the briefs before this Court, we find this appeal to be wholly frivolous and without merit. Accordingly, counsel’s motion to withdraw is granted and the judgment is affirmed.

Affirmed.


author: George Rose Smith, Justice.

text:
    Robert J. PARKER, Jr., and his wife v. Mary Louise LAMB and her husband
    77-426
    567 S.W. 2d 99
    Opinion delivered June 19, 1978
    (Division I)

      George F. Hartje, of: Hartje & Burton, for appellants.

      Clark & McNeil, for appellees.
   George Rose Smith, Justice.

This suit to cancel two deeds is between brother and sister: the appellant Robert J. Parker, Jr., and the appellee Mary Louise Lamb. The single question is whether the chancellor was right in holding that the deeds, executed by the parties’ parents, were ineffective for want of delivery. We agree with the chancellor.

In 1971 the elder Parkers went to a trusted friend, who was an abstracter, for advice about the disposition of their-property upon their death. The abstracter had an attorney prepare the two deeds in question, one conveying the city homeplace to the daughter and the other conveying a farm (which became quite valuable) to the son. The abstracter told the Parkers to put the deeds in envelopes, to be delivered after their death. He said that they could do anything they wanted to with the property before they died, but if they still owned it at the time of their death it would go according to the deeds. Needless to say, the advice was erroneous.

Upon the elder Parker’s death in 1974 the title passed to his widow as the surviving tenant by the entirety. Mrs. Parker kept the deeds in a storm cellar behind her home in Conway. The son, to prove delivery of the deeds, relies upon two incidents that occurred during his mother’s last illness in 1976. In the first incident Mrs. Parker, during the final several days of her life, told her daughter that she could go down to the cellar, get the two envelopes, and tear them up if she wanted to. The daughter declined.

The second incident took place two days before Mrs. Parker’s death. The son and daughter went together to the storm cellar upon another matter and noticed that the envelopes were not there. Knowing that their aunt, Mrs. Reidmatten, had another key to the storm cellar, they went next door to ask her about the envelopes. Mrs. Reidmatten had removed them, for safekeeping. She handed the envelopes to Robert, who kept them. He and his sister opened them just enough to be sure that the deeds were there. When Robert told his mother the next day about how he had come into possession of the envelopes, she said in effect: “Good enough. Take care of them. And for goodness’ sake put them in a safe place.” It is now argued that those words amounted to a ratification of Mrs. Reidmatten’s manual delivery of the deeds.

No effective delivery is shown. The law wisely requires the delivery of a deed, as a positive act bringing home to the grantor that he is definitely parting with the ownership of his land. An essential element of a valid delivery is the grantor’s intention to pass the title immediately. Smith v. Van Dusen, 235 Ark. 79, 357 S.W. 2d 22 (1962); Hunter v. Hunter, 216 Ark. 237, 224 S.W. 2d 804 (1949).

No such intention to pass title immediately could have existed in this case, because there is no suggestion whatever in the proof that Mrs. Parker did not still believe that the abstracter’s advice — that the envelopes be delivered after her death — was sound. There is no possibility that Mrs. Parker, relying upon that advice, could have intended an inter vivos delivery of the deeds. In fact, the existence of any such intention is actually rebutted by her offer to let her daughter tear up the deeds and by her warning to her son to put the envelopes in a safe place. Those statements imply that she thought the eventual delivery of the envelopes would carry out her wishes after her death.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Hoi.t, JJ.


author: John A. Fogleman, Justice.

text:
    Bert PAGE v. David S. SCOTT
    77-411
    567 S.W. 2d 101
    Opinion delivered June 19, 1978
    (In Banc)

      Friday, Eldredge & Clark, by: John Dewey Watson, for appellant.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellee.
   John A. Fogleman, Justice.

Appellant Page owned a residence which he rented to appellee Scott by an oral lease. The residence was damaged by a fire caused by the negligence of Scott. Total damages amounted to $8,050. Page carried a fire insurance policy with Hartford Insurance Company. It covered damages in excess of $50, which was the amount deductible under the policy terms. The company paid Page $8,000. Page paid the remaining $50. Page sued Scott for the entire amount of the damages. Scott defended on the ground that the insurance company was the real party in interest and that its subrogation claim was barred as a matter of law. The real basis of this defense, as stated in the trial court by appellee’s attorney, was the contention that the policy was procured for the mutual benefit of the lessor and the lessee with the implied agreement that Page would look solely to the insurance policy in case of loss by fire and not to the lessee. On this basis, the trial court held that no subrogation right existed, because the insurance company’s rights were no greater than those of its insured. Judgment for $50 was rendered in favor of Page. The complaint for damages in excess of that amount was dismissed. Appellant asserts that the trial court erred in failing to enter judgment for the full amount of the stipulated damages. We agree, reverse the judgment of the trial court and remand the case for entry of a judgment in favor of the appellant for $8,050, the full amount of the damages.

There are certain pertinent matters which are not subject to serious dispute. Although appellee contended that the insurance company was the real party in interest, his attorney expressly stated that he was not requesting that the company be made a party plaintiff. Actually, where the insured has a deductible interest, he is the real party in interest in whose name an action such as this must be brought. Dowell, Inc. v. Patton, 221 Ark. 947, 257 S.W. 2d 364; McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W. 2d 566. See also, Erwin, Inc. v. Arkansas Louisiana Gas Co., 261 Ark. 537, 550 S.W. 2d 174. The amount collected on a fire insurance policy by an insured does not, in any sense, constitute proceeds of the property and the coverage is personal to the insured and is for his benefit only. Whitley v. Irwin, 250 Ark. 543, 465 S.W. 2d 906; McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88; Langford v. Searcy College, 73 Ark. 211, 83 S.W. 944. The lessor and the lessee each had an insurable interest in the property, independent of the other; and either, or both, may separately insure his interest for his own benefit. Hale v. Simmons, 200 Ark. 556, 139 S.W. 2d 696; Roesch v. Johnson, 69 Ark. 30, 62 S.W. 416. A landlord may recover from his tenant for fire damage caused by the negligence of the tenant. See Kirkpatrick v. Reese, 219 Ark. 124, 240 S.W. 2d 1; 49 Am. Jur. 2d 911, Landlord & Tenant, § 934. If there had been no insurance involved, Page’s right to recover would have been beyond question and his right to recover the $50 deductible is not questioned. He was entitled to file the action in his own name, the insurer not being a necessary party, and the single cause of action could not be split. Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W. 2d 811. Appellee had no interest in any of the rights or interests of appellant in his insurance policy with Hartford. Dowell, Inc. v. Patton, supra; McGeorge Contracting Co. v. Mizzell, supra; Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S.W. 2d 491. The only issue then, is whether the insurance taken by the lessor was for the benefit of both parties. There is no evidence that it was.

Appellee contends, however, that a lessor’s insurer has no subrogation to the lessor’s claim against the lessee. This undoubtedly would be true if the parties had agreed as a part of the transaction that insurance would be provided for the mutual protection of the parties. U.S. Fidelity & Guaranty Co. v. Aetna Casualty & Surety Ins. Co., 418 F. 2d 953 (8 Cir., 1969). It would also be true if such an agreement could be implied from the terms of the agreement between the parties. Such an agreement has been implied when the terms of the lease require the landlord to carry insurance at the expense of the tenant, when the tenant’s contractual obligation to return the leased property in good condition excepts loss by fire and when the agreement requires the lessor to carry insurance and use the proceeds for restoration of the property insured. Liberty Mutual Fire Ins. Co. v. Auto Spring Supply Co., 59 Cal. App. 3d 860, 131 Cal. Rptr. 211 (1976); New Hampshire Ins. Co. v. Fox Midwest Theatres, 203 Kan. 720, 457 P. 2d 133 (1969); Rock Springs Realty, Inc. v. Waid, 392 S.W. 2d 270, 15 ALR 3d 774 (Mo., 1965); General Mills v. Goldman, 184 F. 2d 359 (8 Cir., 1950); Cerny-Pickas & Co. v. C. R. John Co., 7 Ill. 2d 393, 131 N.E. 2d 100 (1955). See also, 49 Am. Jur. 2d 912, Landlord & Tenant, § 935; Annot., 15 ALR 3d 786.

This is not the case here, because there is not even a suggestion that the agreement included any terms from which such an agreement could be implied. Appellee’s statement that Page procured the policy of fire insurance as a part of the leasing transaction is wholly unsupported by anything in the record before us. As a matter of fact, it was admitted that both appellant and appellee carried insurance. The fiction that by paying the rent, the lessee paid the insurance premium is not appropriate. There is no evidence that appellee paid any greater rent because of the insurance than he would have paid had appellant not taken insurance. If the tenant paid the insurance premium, he also paid the taxes on the property and the cost of construction or purchase of the house, not to mention cost of repairs and maintenance. Such a fiction ignores the fact that more often than not the market, i.e., supply and demand, is the controlling factor in fixing and negotiating rents.

We are not aware of any case in which it has been held that the landlord, who has recovered the proceeds of insurance he had obtained and paid for, without any agreement with the tenant regarding insurance or loss by fire, cannot recover from the tenant for negligence resulting in the destruction of the leased property by fire, solely on the basis of such a fiction.

It is no defense to an action by an insured against his tenant for negligence that the insured has collected the full amount of the insurance carried by him on the leased property, as the question of entitlement to the proceeds of the recovery in tort is between the insured and the insurer. Anderson v. Miller, 96 Tenn. 35, 33 S.W. 615, 54 Am. St. Rep. 812, 31 LRA 604 (1896). As pointed out in Anderson, in the absence of an agreement, the tenant has no equitable claim for reduction in damages because the landlord has but a single recovery for the tenant’s wrong and the landlord’s recovery of the proceeds of an insurance contract, to which the tenant was not privy, entitles the tenant to no equities-because of the tenant’s own wrongful act. We have held that evidence of a recovery of insurance proceeds was properly excluded in a somewhat similar background. Dowell, Inc. v. Palton, 221 Ark. 947, 257 S.W. 2d 364.

Furthermore, we are not persuaded by appellee’s argument that appellant should not be entitled to a tort recovery for the benefit of the insurance company because the company insured against losses by negligence and the recovery would result in a windfall to the insurer. The same might be said about a recovery from a third party liable because of negligently causing a fire. It also could be said of the insurer affording collision coverage to an automobile owner suffering damage from the negligent acts of another. We have never recognized the validity of such an argument.

The judgment is reversed insofar as it denied recovery of the amount of appellant’s insurance payment and the trial court is directed to enter judgment in favor of the appellant for the full amount of appellant’s damages.

      In any event, the denial of the right of recovery is not because the insurer is not entitled to subrogation. It is based upon the absence of a cause of action by the insured landlord. See cases cited. Cf. St. Louis-San Francisco R. Co. v. Travis Insulation Co., 215 Ark. 868, 223 S.W. 2d 765.


author: Conley Byrd, Justice. George Howard, Jr., Justice,

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. David J. POTTER, Attorney for Emma J. YOUNG
    77-418
    567 S.W. 2d 104
    Opinion delivered June 19, 1978
    (In Banc)

      Tompkins, McKenzie, McRae & Passer, for appellant.

      David J. Potter, of Potter & Potter, for appellee.
   Conley Byrd, Justice.

Appellee David J. Potter, attorney for Emma J. Young was awarded the maximum attorney’s fee on the worker’s compensation total disability claim of Emma J. Young. Emma J. Young is being paid weekly benefits of $43.68 for the remainder of her life. This litigation ensued when appellee filed a petition requesting that the remaining portion of his fee be paid in a lump sum equal to ten percent of all compensation to be paid to Emma J. Young for the rest of her life as determined under applicable mortality tables. Notwithstanding, the medical proof showing that Emma J. Young, because of the nature of her injuries, was not expected to live a normal life span for a woman of 53 years, the Commission using the standard mortality table ordered appellant United States Fidelity and Guaranty Company to pay a lump sum attorney’s fee in the amount of $2,898.96. The circuit court affirmed. Appellant appeals raising the sole issue of whether appellee is lawfully entitled to be paid a lump sum attorney’s fee when the claimant is being paid her compensation periodically in compliance with the provisions of the workers’ compensation law.

To sustain the action of the Commission, appellee relies upon Ark. Stat. Ann. § 81-1332 (Repl. 1976) and Ark. Stat. Ann. § 81-1319(k) (Repl. 1976). The first statute § 81-1332, supra, provides that “. . . the Commission shall direct that fee [fees] for legal services be paid by the employer or carrier in addition to compensation awarded, and such fee [fees] shall be allowed only on the amount of compensation controverted and awarded. . . .” Section 81-1319(k), supra, merely provides for lump sum settlements “Whenever the Commission determines that it is for the best interest of the parties entitled to compensation. . . .”

In the case of Emma J. Young, the only compensation awarded is weekly benefits, consequently, it follows that the Commission had no statutory authority to direct that an attorney’s fee be paid on the basis of a lump sum award. Since the award and assessment of an attorney’s fee against the employer or carrier is purely statutory, we must hold that the Commission erred in awarding a lump sum fee.

Reversed and remanded.

Hickman and Howard, JJ., dissent.

George Howard, Jr., Justice,

dissenting. I am compelled to dissent from the holding of the majority in this case for the following reasons:

The Arkansas Workmen’s Compensation Commission, in the exercise of its discretion and wisdom, has issued an order directing the payment of the fees due claimant’s attorney in a lump sum rather than being paid over a long period of time on a piecemeal basis. The amount of the attorney’s fee involved in this action is $2,898.96. However, under the holding of the majority, the attorney is required to receive his fee at the rate of $4.37 weekly until such time as he has received the fee allowed under the law, providing the claimant does not die before her attorney receives the fee awarded.

The majority asserts that the Commission had no statutory authority to direct that the fee be paid on the basis of a lump sum award. However, I submit that Ark. Stat. Ann. § 81-1332 (Repl. 1976) which reads in material part as follows supports the Commission’s action:

“Whenever the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fee [fees] for legal services be paid by the employer or carrier in addition to compensation awarded, and such fee [fees] shall be allowed only on the amount of compensation controverted and awarded. Whenever the Commission finds the claim has not been controverted but further finds that bona fide legal services have been rendered in respect to the claim, then the Commission shall direct the payment of such fees out of the compensation awarded. ... In determining the amount of fees, the Commission shall take into consideration the nature, length and complexity of the services performed, and the benefits resulting therefrom to the compensation beneficiaries.”

In Littlejohn v. Earle Industries, 239 Ark. 439, 389 S.W. 2d 898, we said, in recognizing the discretion afforded the Commission under the Workmen’s Compensation Law in dealing with an attorney’s fee:

“Our Workmen’s Compensation Commission has authority to assess attorneys’ fees whenever the Commission finds the claim has been controverted in whole or in part. . . . Thus, our legislature has entrusted to the Commission the right to determine the necessity of a claimant to secure the services of an attorney in order to preserve his benefits. We have indicated that on appeal this court will not interfere with the Commission’s determination on the issue of attorneys ’ fees unless there is an abuse of discretion. . . . Generally, the courts do not question the discretionary power of a commission in the matter of an attorney’s fee unless the determination is ‘clearly wrong ’, . . . or unless there is a ‘gross abuse' ...” (Emphasis added)

In Hillman v. O’Hearne, 129 F. Supp. 217 (D. Md. 1955), the Court made the following applicable and pertinent observation:

“[F]ees in compensation cases should not be fixed by reference to an arbitrary percentage applicable to all or most cases. The extent and character of the legal work, the amount involved, the intricacy and novelty of the issues, and the results obtained must all be considered.
“Some authorities also include as elements for consideration in fixing the fees the circumstances of the claimant and the standing of counsel. The latter element has less application in compensation cases than in other fields. As to the former, the circumstances of the claimant are almost always needy, and should moderate the demands of counsel, but should not be so emphasized by those approving the fees as to drive competent counsel out of the field. In some compensation cases the issue of liability is bitterly contested and the collection of any fee is necessarily contingent upon success; in other cases, the only question is how much compensation wiM be awarded, some fee is sure to be allowed and to make a lien upon the award, and that factor should be considered in fixing the fee.”

It is my conviction that not only should the Commission be sustained, but the Commission should be commended for taking such an objective and forthright step in dealing with a problem that has concerned many persons in the legal profession over the years. It is apparent that many capable and qualified attorneys may be reluctant to represent a claimant in Workmen’s Compensation cases when one realizes that the fee that he is to receive is to be parceled out over a long period of time at a nominal sum, as in the instant case at the rate of $4.37 per week. At a time when there is great and universal concern in our nation about making legal services available to many citizens who have been denied legal representation in the past, for one reason or another, the posture taken by the Commission is one step in the direction of coming to grips with this problem.

I can fully appreciate the posture of the Commission and, indeed, the law in favoring the payment of benefits to a claimant or his dependents on a periodic basis inasmuch as the purpose of Workmen’s Compensation Coverage has a social purpose in view. It is well recognized that the primary purpose of Workmen’s Compensation Coverage is to provide for employees or their dependents economic aid where employees have suffered injuries or death in connection with their employment. Thus, lump sum awards could, in all probability, defeat the objective of the coverage and add another statistic to the welfare rolls. But in the case of an attorney who has given his time, advice and expertise in the representation of a claimant to be required to receive his fee in the fashion directed by the majority is an imposition rather than a benefit. Moreover, it is unlikely, in the event the attorney should misuse his award, or fails to use it for the essentials of life, that the attorney would become a recipient of welfare.

In response to the argument that an attorney who receives a lump sum award, and his client-claimant should die before the benefits due the claimant have been fully paid, the attorney stands to reap a windfall, I submit the following from an opinion rendered by the Commission in the case of Rankin v. Campbell, (WCC Opinion September 7, 1967):

“The award to the claimant was the result of the diligent effort and services of the attorney and we do not believe that his fee was contingent upon the claimant’s drawing the entire award . . . The only reason shown by the record for the claimant not receiving his compensation was his untimely death. It is true that the compensation terminated and relieved respondents of further liability to the claimant at the time of his death; but the attorney had rendered his services in securing the award. Such services entitle claimant’s attorney to a fee as awarded and such entitlement is unaffected by the claimant’s untimely death. ...”

I would affirm the Commission.

I am authorized to state that Hickman, J., joins in this dissent.

      The following are cases where the Commission has awarded a lump fee to attorneys involving permanent and total disability claims, based upon the claimant’s life expectancy: Vernon P. King v. Ark. State Highway Dept., W.C.C. Vol. 407, page 066; Bobbie Grimes, Employee and Claimant v. Ed White, Jr. Shoe Company, Employer, and Hartford Insurance Company, Insurance Carrier, Respondent, Claim No. W.C.C. 32900.

      It was stipulated that the claimant who is 53 years of age has a life expectancy of 21 years, but her doctor, in giving his professional opinion, could not state with any reasonable certainty that she will live 21 years from now because of a chronic condition.


author: Conley Byrd, Justice.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. Ruby NICHOLSON
    78-17
    567 S.W. 2d 107
    Opinion delivered June 19, 1978
    (Division II)

      Wright, Lindsey & Jennings, for appellant.

      Joe Cambiano and Robert E. Irwin, for appellee.
   Conley Byrd, Justice.

Following our decision in Nicholson et al v. Shipp et al, 253 Ark. 464, 486 S.W. 2d 691 (1972), holding that the deed prepared by Josephine Huett did not create an estate by the entirety, appellee Ruby Nicholson filed suit against Josephine Huett and the Morrilton-Conway County Abstract Company seeking damages for the alleged negligence of Josephine Huett in preparation of the deed. Josephine Huett brought in appellant St. Paul Fire & Marine Insurance Company (hereinafter referred to as: St. Paul) asking for judgment over against St. Paul who had issued an errors and omission policy to the abstract company, Huett’s employer. St. Paul admitted the errors and omission policy and that Josephine Huett was an employee of the abstract company. However, St. Paul defended the claim on the basis of an exclusion in the policy that provided:

“This Policy does not apply: ... to the ownership, maintenance, use or repair of any property, or the conduct of any business enterprise other than abstracting services. ...”

The record shows that appellee went to the abstract company to get the deed prepared, that the deed was prepared by Josephine Huett at the request of appellee, and that appellee paid the $10 fee which the abstract company charged for the preparation of the deed. The evidence on behalf of appellee showed that abstract companies in Conway County regularly prepared real estate deeds for a fee in the same manner that Josephine Huett prepared the deed for appellee. The trial court denied St. Paul’s motion for a directed verdict. The jury returned a verdict in favor of appellee upon which a judgment was entered for $5500, the agreed damages. Only St. Paul has appealed.

In Beach Abstract & Guaranty Co. v. Bar Ass’n of Ark., 230 Ark. 494, 362 S.W. 2d 900 (1959), we held that title examination and curative work, including the preparation of deeds, when done for another, constituted the practice of law and entered a declaratory decree to the effect that such conduct on the part of an abstract company constituted the illegal practice of law. While the results of Beach Abstract & Guaranty Co. v. Bar Ass’n of Ark., supra, were modified with respect to the preparation of deeds without a fee which arise in connection with and in the usual course of the abstractor’s business by Creekmore v. Izard, 236 Ark. 558, 367 S.W. 2d 419 (1963), we there held that the preparation of a deed by Creekmore for a fee clearly constituted the unlawful practice of law.

In view of Creekmore v. Izard, supra, and Beach Abstract & Guaranty Co. v. Bar Ass’n of Ark., supra, we clearly have before us the question of whether Josephine Huett in preparing the deed for appellee was engaged in “the conduct of any business enterprise other than abstracting services. . . . ?” Since it clearly appears that Josephine Huett was engaged in the practice of law in the preparation of the deed, we have concluded, that coverage under the errors and omission policy was excluded. It follows that the trial court erred in not directing a verdict in favor of St. Paul.

Reversed and dismissed as to St. Paul.

We agree: Harris, C.J., and Hickman and Howard, JJ.


text:
    OSCEOLA MOTOR COMPANY, INC. v. Cletus TACKER, Jr.
    78-22
    567 S.W. 2d 109
    Opinion delivered June 19, 1978
    (Division II)

      Moore & Gibson, P.A., by: Michael L. Gibson and Michael R. Bearden, for appellant.

      Burk Dabney, for appellee.
   Conley Byrd, Justice.

Appellee Cletus Tacker, Jr. bought a four wheel drive pickup from appellant Osceola Motor Company, Inc. on January 22, 1975. Appellee experienced some difficulties with the truck during the year including a broken speedometer cable and some trouble with the transfer case. Sometime before January 22, 1976, before the first annual installment payment was due, appellee returned the truck to appellant who refused to repair the transfer case under the warranty. Appellee notified appellant that if appellant did not repair the truck under the warranty, appellee was not going to pay for the truck. Appellant sold the truck under the applicable provisions of the Uniform Commercial Code and brought this action to recover a deficiency of $1,870.92. Appellee defended on the basis that he had revoked his acceptance of the vehicle and counterclaimed for his down payment of $901.59. The jury found the issues in favor of appellee but stated on their verdict that appellee should not recover his down payment. For reversal appellant contends:

I. Since Cletus Tacker, Jr., requested permission to make a partial payment and requested an extension of time within which to make a payment, he waived his right to attack the condition of the vehicle by alleging breach of warranty and should be estopped to do so; that the trial court erred in not finding waiver and estoppel and either directing a verdict for Osceola Motor Company or granting their motion for a judgment notwithstanding the verdict.
II. That the trial court erred in not granting Osceola Motor Company, Inc’s, motion for a judgment notwithstanding the verdict since Cletus Tacker, Jr., did not allege or prove any damages which is an essential element to prove a breach of warranty.

The record shows that the truck was financed through Ford Motor Credit on the basis of three annual installments of $2362.98. The warranty on the vehicle was 12,000 miles or one year. At the time appellee returned the vehicle the speedometer showed 11,600 miles. The cross-examination of appellee, as abstracted, was as follows:

“I have had trouble with the truck for some time and had it repaired and serviced several times during the year. I waited a year before saying they had breached the warranty because they always fixed it until the last time I took it back. It was still in warranty and that’s why I said breach of warranty.
I told John Carter of Osceola Motor Company that if I was going to have to make a payment on the truck and pay to have it fixed, which they said would cost around $1600.00 for the repairs, that I would need an extension on the payment to make them both. John Carter told me about the $1600.00 on about January 16th, which was five or six days before my first annual payment was due.
That day he didn’t ask me about the payment. He said the warranty wouldn’t cover it and suggested I call Ford Motor Credit and find out if I would have to pay all of it without a partial payment.
I guess I asked John Carter of Osceola Motor Company on about January 16th for an extension on my payment. We had talked about it other times and I do not know the exact date.
I deny that on January 16th I asked John Carter for an extension of payment. (At this point the attorney refers to the witness’s discovery deposition and reads the question that was asked.) ‘Did you, at some time around January of 1976, go to Osceola Motor Company and ask John Carter, who is one of the officers of the corporation, if you could make a partial payment on the note that was due?’ Answer: ‘I did.’ (Abstract continues) I am not saying now that that’s not correct, but since the deposition was made, I have found out what the date was. At that time I didn’t know the exact date.
I did mention a partial payment to Ford Motor Credit Corporation in Memphis. This was before my payment was due and I called and asked them about the warranty and they said I would have to talk to Osceola Motor Company. During the conversation with Ford Motor Credit, I told them I had the money to make a payment on the truck, but I didn’t have enough to pay $1500.00 to fix the truck and make the payment, too. I asked if I could work out some kind of deal to make the payment. I wanted the truck, but if I was going to have to pay for having it fixed, I was going to have to see what I could do about it. I was going to see what it would cost to work it out. You can call somebody and ask them something but it doesn’t mean you are going to do it. John Carter did not tell me he would extend my payment and he stated that the truck had too many miles on it and he wouldn’t fix it.”

Appellant in making his contention that appellee waived the alleged breach of warranty relies upon Kern-Limerick, Inc. v. Mikles, 217 Ark. 492, 230 S.W. 2d 939 (1950), where we held that one with full knowledge of the facts waived a breach of warranty by asking for and accepting additional time in which to make his installment payments. Even if we should consider that case to still be good law, it would appear under the record here, that there was still a fact issue as to whether appellee’s inquiry about a partial payment was an unconditional offer. As we view the record, in the light most favorable to the jury’s verdict, thejury could have determined that appellee was merely trying to determine the options available to him as a result of appellant’s refusal to repair the vehicle under the warranty. Whether the warranty had terminated was a fact issue for the jury on the evidence presented.

Following the adoption of the Uniform Commercial Code, this court continued to rely upon Kern-Limerick, Inc. v. Mikles, supra, in holding that a consumer waived the breach of a warranty by not revoking his acceptance when the breach occurred, Hudspeth Motors v. Wilkinson, 238 Ark. 410, 382 S.W. 2d 191 (1964). However, after more thorough study of the Uniform Commercial Code, this court in Stimson Tractor Co. v. Heflin, 257 Ark. 263, 516 S.W. 2d 379 (1974), reconsidered the matter and stated:

“We recognize that to permit Heflin to now seek damages for breach of warranty is contrary to our holding in Hudspeth Motors v. Wilkinson, 238 Ark. 410, 382 S.W. 2d 191, where this court held that there was no rejection or revocation by the buyer and we thus remanded the case for entry of a judgment in favor of the seller. Hudspeth was decided during the early years after the Uniform Commercial Code became effective in this State, and we were without benefit of briefs from both parties, only appellant submitting an abstract and a brief. We have now concluded, under the authority of the statutes cited in the previous paragraph, that this holding was in error and accordingly Hudspeth is overruled to the extent that the Circuit Court was directed to enter judgment for Hudspeth without first giving Wilkinson the opportunity to show damages for breach of warranty.”

Neither can we find any merit in appellant’s second contention. In view of the evidence showing that the vehicle was still in warranty and that the repairs which appellant refused to make would cost $1,500, we cannot say that appellee failed to prove any damages.

Affirmed.

We agree: Harris, C.J., and Hickman and Howard, JJ.


author: Frank Holt, Justice.

text:
    Clyde T. WALLACE v. Woodrow WILLIAMS et ux
    77-400
    567 S.W. 2d 111
    Opinion delivered June 19, 1978
    (In Banc)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Joe Cambiano, P.A., for appellees.
   Frank Holt, Justice.

A jury awarded $11,325.41 to appellees for property damage and personal injuries incurred in an automobile collision with appellant. For reversal appellant first asserts the trial court erred in failing to strike the opinion testimony of a physician as to the permanency of appellee Audley Williams’ injuries.

A properly qualified expert’s opinion constitutes substantial evidence unless it be shown that the expert’s opinion is without reasonable basis. Ark. State Highway Comm’n v. Geeslin, 247 Ark. 537, 446 S.W. 2d 245 (1969). Here the physician is a general practitioner with twenty-six years’ experience. His expertise is not questioned. Appellant concedes that the opinion testimony given on direct examination by this treating physician that Mrs. Williams would require future medical treatment for her injuries and had sustained a five percent permanent partial disability as a result of the accident would be sufficient to justify the jury’s award of damages. However, appellant argues that on cross-examination, it was demonstrated that the physician’s opinion was conjectural and without reasonable basis inasmuch as he did not sufficiently delineate the nature of the injuries received by Mrs. Williams in this accident from her injuries in a previous accident and other infirmities. Mrs. Williams had received an injury to the same area of her low back in an automobile accident four and a half years before the present injury. From the date of the earlier accident, she has been under this physician’s care and treatment.

On direct examination, this physician testified that, immediately following Mrs. Williams’ last injury, January, 1977, he examined her and found she “had tenderness of the muscles in the lumbrosacral spine and some tenderness in the region of the cervical spine.” He x-rayed her and found “[s]he had arthritis of the spine and a degenerative disc disease of the lumbro-sacral spine — that’s the low back. And of the cervical spine, she had degenerative disc disease and osteoarthritis there also.” Thereafter, he continuously saw her for treatment, prescribing medications for the pain and giving her injections of ACTH. He had treated Mrs. Williams four and a half years for accidental injuries to her lower back but did not recall with specificity what her condition and problems were because he had lost his chart on her. However, Mrs. Williams’ condition “had improved” since the earlier accident. Following the present accident, “her condition worsened.” He anticipated Mrs. Williams would continue to require medical treatment “probably” for the rest of her life. Regardless of what her condition was before, as a result of the last accident, it was definitely his opinion that she “probably has about five percent more [permanent disability] than she did have.” He based his opinion “[u]pon tenderness and muscle spasm and x-rays of injury and arthritis.”

On cross-examination, he testified that since he had lost his records on Mrs. Williams, his comparison of her present injuries with her previous condition was based upon “what I remember.” He was not sure when appellee hurt her lower back four and a half years before whether she then aggravated a pre-existing arthritis condition, but was “sure that is probably right.” He could not remember prescribing new drugs or medications for her arthritic condition in the interval between accidents except for “one that made her sick.” He recalled Mrs. Williams was hospitalized in December, 1976, (a month before the present injury) and diagnosed as suffering from acute gastroeneritis, arteriosclerotic heart disease, coronary sclerosis, and an osteoarthritic condition. He did not recall whether the injury Mrs. Williams received in the prior accident was of such a nature that he gave her a disability rating then. He remembered that she had a narrowing of the intervertebral disc spaces before the 1977 or recent accident which required her to wear a brace and that she had been receiving ACTH as medication for many years. However, the physician reiterated that he felt Mrs. Williams was probably five percent worse off now than she was four and a half years before. At trial the doctor had the benefit of appellee Mrs. Williams’ x-ray reports as of March, 1977, and a duplicate card of her numerous office visits since the last injury.

The burden is upon the party against whom the opinion testimony is offered to show by cross-examination that the witness had no logical basis to support his opinion before the testimony is subject to being stricken on motion. Ark. State Highway Comm. v. Jones, et ux, 256 Ark. 40, 505 S.W. 2d 210 (1974); and Ark. State Highway Comm. v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963). It must be demonstrated “that the witness had no reasonable basis whatever for his opinion. Ark. State Highway Comm. v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966). There we also said:

.... [I]f cross examination shows that the witness has a weak or questionable basis for his opinion, that fact has a bearing upon the weight to be given the witness’ testimony.

Here, although the testifying physician had lost Mrs. Williams’ medical records of her treatments and did not recall in detail these treatments, he stated that based upon what he did remember together with a study of her x-rays following her present injury, he definitely felt that she was five percent worse off as a result of the 1977 accident than before. His inability to remember specifics over a five year period merely weakens the basis of his testimony and the weight to be accorded by the jury.

In the circumstances, we cannot say there was no reasonable basis whatever for this treating physician’s opinion. Therefore, since the testimony was properly admitted, there was no error in instructing the jury on the permanency of the injury and future pain, suffering, and mental anguish. See Pointer, et ux v. Ricker, 251 Ark. 1105, 476 S.W. 2d 798 (1972); and Swenson and Monroe v. Hampton, 244 Ark. 104, 424 S.W. 2d 165 (1968).

Affirmed.

Harris, C.J., dissents.


text:
    James R. BRASWELL et ux v. Albert GEHL et ux
    78-9
    567 S.W. 2d 113
    Opinion delivered June 19, 1978
    (Division I)

      Howell, Price, Howell & Barron, P.A., for appellants.

      Brazil & Roberts, for appellees.
   Frank Holt, Justice.

Appellees brought suit in Faulkner County Circuit Court to evict appellants for nonpayment of rent on premises leased to them. Appellants answered and counterclaimed for damages, alleging that appellees had breached the lease agreement. Appellees moved to dismiss appellants’ counterclaim on the basis that the same issues were involved in a pending action in Puiaski Chancery Court. Appellees also moved for judgment on the pleadings or summary judgment on the ground that appellants, in their responses to the requests for admissions, admitted they had been in arrears in their rent payments which under the lease agreement voided the lease. The trial court granted both motions. After a hearing, the court denied appellants’ motion to vacate the order. Appellants first contend the court erred in denying their motion to vacate the order which granted appellees’ motion for summary judgment. Appellants assert they were not given adequate time to respond to the motion and they had a meritorious response to it.

Here appellees filed their motion for summary judgment on May 31, 1977. The motion included a notice that a hearing was to be held on June 3 at 9 a.m. The motion was mailed to appellants’ attorney on June 1 and received by him on June 2. On June 2, rather than on June 3 as stated in the motion, in the absence of appellants’ attorney, the trial court heard and granted appellees’ motions for summary judgment and dismissed appellants’ counterclaim.

Ark. Stat. Ann. § 29-211 (c) (Repl. 1962) provides that a motion for summary judgment “shall be served at least 10 days before the time fixed for the hearing.” We have stated that these notice requirements “are not mere formalities and should not be treated so lightly as to deprive a party of an opportunity to present rebutting evidence and argument.” Purser v. Corpus Christi St. Nat’l Bank, 258 Ark. 54, 522 S.W. 2d 187 (1975). See also Sikes v. Segers, 263 Ark. 164, 563 S.W. 2d 441 (1978). Appellees argue that even if there was error in the failure to give appellants adequate notice, they were not prejudiced because regardless of what proof appellants may have presented, the court would have no choice but to grant their motion as a matter of law since appellants were admittedly in arrears on their rent. In regard to the required showing of prejudice, we stated in Purser v. Corpus Christi St. Nat’l. Bank, supra, that where “[tjhere was error in the premature entry of the judgment .... unless it is manifest that the error is not prejudicial, we should reverse.” Here although appellants admitted they failed to make rent payments, they, also, in their responses to appellees’ requests for admissions of fact, stated that they had “tendered full payment of their rental obligation and any arrearage which did occur was a result of a bona fide error of which circumstances plaintiffs are aware.” Further, in their answer, appellants asserted that the appellees were “merely attempting to take advantage of” the error “in order to unjustifiably remove defendants from the property. ...”

We have stated that “ [a] motion for a summary judgment is an extreme remedy” and “where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable men night differ, then a motion for summary judgment is not proper.” Deltic Farm & Timber Co. v. Manning, Adm’x., 239 Ark. 264, 389 S.W. 2d 435 (1965). Here the assertions made by appellants in their answer and responses to appellees’ requests for admissions reveal aspects which could reasonably vitiate their failure to make rent payments, particularly if they had been given the opportunity to develop them by affidavits or other evidence at the hearing on the motion for summary judgment. In the circumstances, we cannot say that it is manifest that appellants were not prejudiced. Accordingly, the court erred in prematurely entering summary judgment against appellants and denying their motion to vacate the court’s order.

Appellants also assert the court erred in not vacating its order dismissing their counterclaim. We agree. Appellees moved for dismissal of the counterclaim pursuant to Ark. Stat. Ann. § 27-1115 (3) (Repl. 1962) on the ground that the “allegations set forth in the counterclaim .... are presently being litigated in the Chancery Court of Pulaski County .... ” Appellants responded, inter alia, that the litigation in Pulaski Chancery Court sought injunctive relief. Appellants insist that their counterclaim in the case at bar was filed to recoup their business investment and solely because appellees’ present action against them jeopardized that investment. Further, their counterclaim was a “substantially different” action than the case in Pulaski Chancery Court. Here appellees’ motion to dismiss and appellants’ response created a factual dispute as to whether the objects of the two suits were the same. It, also, appears that when the trial court dismissed appellants’ counterclaim on June 2 and when it denied appellants’ motion to vacate that order, it had before it neither the pleadings in the chancery case nor any other evidence.

It is well settled that if the objects of the two suits are different, they may progress at the same time although they are between the same parties and involve the same subject matter. Wilson v. Sanders, 217 Ark. 326, 230 S.W. 2d 19 (1950); and Garabaldi v. Wright, 52 Ark. 416, 12 S.W. 875 (1889). We have also held “that a judgment relied upon as a bar to an action could not be considered unless introduced into evidence” and “courts cannot take judicial notice of their own records in other causes pending therein, even between the same parties” nor of the record and proceedings of other courts. Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962). We elaborated on this principle of law in Wirges v. Arrington, 239 Ark. 1047, 396 S.W. 2d 292 (1965), stating that “though some jurisdictions will take judicial notice of the pendency of more than one suit on the same subject matter, this procedure is not permissible in Arkansas.” It follows the trial court erroneously dismissed appellants’ counterclaim.

Appellants next contend the trial judge should have disqualified himself because he was the father-in-law of the appellees’ attorney. Ark. Stat. Ann. § 22-113 (Repl. 1962) provides:

No judge of the circuit court, justice of the county court, judge of the court of probate or justice of the peace, shall sit on the determination of any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity, .... without consent of parties.

Our decisional law has required the filing of a motion to disqualify or an objection at trial to preserve the issue for appeal; otherwise, it is waived and when it is raised for the first time on appeal, it cannot be considered. Carr v. City of El Dorado, 217 Ark. 423, 230 S.W. 2d 485 (1950); Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919); and Pettigrew et al v. Washington County, 43 Ark. 33 (1884). Here there was no request made that the judge disqualify. However, Canon 3C of our recently approved Code of Judicial Conduct provides:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(ii) is acting as a lawyer in the proceeding;

We have interpreted this provision of the Code of Judicial Conduct in Edmondson v. Farris, 263 Ark. 505, 565 S.W. 2d 67 (1978). There, as here, we reversed on another issue. Nevertheless, we issued a clear-cut caveat which we reinterate.

In cases arising in the trial court after this date, we construe our rule to require the judge to note his disqualification without any request by a trial lawyer.

Therefore, upon a retrial, no affirmative action or request on the part of the trial counsel is necessary.

Reversed and remanded.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.


author: Darrell Hickman, Justice.

text:
    ORKIN EXTERMINATING CO. v. WHEELING PIPELINE, INC.
    78-5
    567 S.W. 2d 117
    Opinion delivered June 19, 1978
    (In Banc)

      Floyd M. Thomas, Jr., of: Brown, Compton & Prewett, Ltd., for appellant.

      Shackleford, Shackleford & Phillips, for appellee.
   Darrell Hickman, Justice.

Wheeling Pipeline, Inc. sued Orkin Exterminating Company in the Union County Circuit Court for damages caused in a highway accident to a Wheeling Pipeline truck. Wheeling alleged that Orkin was liable because an employee of Orkin’s, Jo M. Walker, negligently caused an accident damaging Wheeling’s truck. Orkin denied liability arguing that Walker was not acting within the scope of his employment at the time of the accident.

The case was submitted to the jury and a verdict was returned in favor of Wheeling for $23,400.00. Orkin, on appeal, alleges three errors, two of which have merit, requiring reversal of the judgment.

First the facts. Walker was a combination salesman for Orkin in that he sold both services and products and serviced customers. He was a resident of El Dorado and worked out of Orkin’s district office located there. Orkin’s El Dorado office covered a district that included the following south Arkansas counties: Ashley, Columbia, Calhoun, Nevada, Ouachita, Union and a portion of Bradley. Walker’s area of assignment varied, but on the day in question his territory included the cities of Hampton, Camden and part of El Dorado.

Walker was paid $600 per month, which was a draw toward commissions he might earn, and he was allotted $100 a month as a car expense. Walker drove his own pickup truck with removable signs bearing the Orkin logo on the doors.

On the morning of June 15, 1976, Walker attended an Orkin sales meeting in El Dorado. He left that meeting and his whereabouts and business are unknown until he arrived at McGehee in Desha County — outside his area and the Orkin El Dorado district. All of the evidence reflects that his visit to McGehee was a personal visit. He arrived just before noon to see a friend and former supervisor named James Thomas who was the manager of Evans Pest Control in McGehee.

According to Thomas it was purely a personal visit and did not involve any business on behalf of Orkin. Thomas testified that they went to his home for lunch where they had one beer each and returned to the office. Thomas said that in addition to visiting as old friends, Walker made inquiries about possible employment with Evans Pest Control. Thomas said that when Walker left he said he had one or more appointments in Hampton and an appointment in Camden at about six o’clock. He said Walker left about 4:00 p.m.

A secretary for Thomas said that Walker mentioned that he had a couple of calls to make. Walker had not called the El Dorado office that day as he-was required to do at 10:00 a.m., 2:00 p.m., and 4:00 p.m.

Over four miles south of the city limits of Hampton on Highway 167, which is a main thoroughfare leading from Hampton to El Dorado, the accident occurred. The driver of the Wheeling truck said that Walker’s vehicle crossed the center line causing the accident. The Arkansas state policeman testified he received a call on the accident about 5:00 p.m. His report corroborated the Wheeling truck driver’s version of the accident. Walker was killed in the collision. There was testimony that Walker’s body smelled of liquor. However, there were no liquor containers found in or about Walker’s vehicle and no blood-alcohol test was made.

A Hampton resident testified that she had made an appointment with Orkin for services on the day of the accident and was told that a representative would be there that afternoon. There was no specified time for the appointment and the witness testified that she remained home, but a representative of Orkin never arrived.

An Arkansas state highway map was introduced into evidence. It reflects that the most direct route from Hampton to El Dorado is Highway 167; the most direct route from Hampton to Camden is Highway 4, which proceeds west from Hampton to Camden. The accident occurred south of the highway leading to Camden, south of the city limits of Hampton, and, obviously, past the residence of the witness who testified that she was supposed to have had an appointment with an Orkin representative that day.

In other words, the only logical conclusion that can be drawn from these facts is that Walker was beyond Hampton, a place where he said he had an appointment later that day. He was undoubtedly heading in a direction towards his home in El Dorado.

The appellee argues, and it is speculation, that Walker perhaps had a call to make south of the city limits of Hampton, which he intended to make, return to Hampton and then go on to Camden. This is speculation because there is no evidence to support this supposition.

This brings us to the legal issues. The trial court, finding that it was a fact question as to whether Walker was within the scope of his employment at the time of the accident, instructed the jury that it could consider the signs on Walker’s vehicle and the SI00 expense money in deciding if Walker was within the scope of his employment at the time of the accident. The appellant argues that this was an erroneous instruction which amounts to a comment on the evidence. We agree. The instruction given by the court was a modification of AMI 2d 703. AMI 2d 703 is only proper when the vehicle driven by an employee is owned by the employer. It provides that if a regular employee is driving a vehicle owned by the employer, then that is a fact which may be considered in deciding if the employee was within the scope of his employment at the time of the accident. Such an instruction is not applicable to the case where the employee, in fact, owns the vehicle, is paid expense money and may have signs of the employer displayed on the vehicle. Consequently, it was error for the court to give this instruction, since it commented or called attention to a particular piece of evidence. Art. 7, § 23, Ark. Const.; see also, Comment, AMI 2d 703 (1974); Steel Erectors, Inc. v. Lee, 253 Ark. 151, 484 S.W. 2d 874 (1972).

The more difficult question concerns the deviation by an employee from the scope of his employment.

Undoubtedly Walker had deviated from the scope of his employment by going to McGehee on a personal visit — a location outside his sales district.

The question is, was there substantial evidence to show that Walker had returned to the scope of his employment at the time of the accident? If he was acting in furtherance of his employer’s interest at the time of the accident, and was not still engaged in an exclusively personal act, then he was within the scope of his employment. Reserve Life Insurance Co. v. Hall, 246 Ark. 186, 437 S.W. 2d 226 (1969). We find that there was no such evidence.

The only evidence presented on this issue is that Walker had business in Hampton and Camden. There was no evidence presented that he had engaged in any business on behalf of his employer after he left McGehee. In fact, the evidence is to the contrary. He was beyond Hampton on a highway which would carry him home and beyond a highway which would carry him to Camden. Anything beyond these facts would be speculation. In other words, there is no evidence of any substantial nature that can be used to justify finding that Walker was acting in the interest of his employer at the time of the accident. It might be different if the accident occurred between McGehee and Hampton, but that is not the case.

In a similar case we found that a fact question was presented when an employee had deviated from his route, performed his personal business, and testified he was enroute to deliver some goods for his employer when the accident occurred. Based on the evidence in that case we decided that the jury could have found the employee was acting in furtherance of his employer’s interest at the time of the accident. Nipper v. Brandon Co., 262 Ark. 17, 553 S.W. 2d 27 (1977).

In this case there is no evidence to show that Walker had resumed his duties as an employee. The appellee argues that the accident occurred in an area where Walker could have sold services or goods or acted on behalf of Orkin. However, the question is not was a given act done during the existence of an employment but whether it was done while carrying out the object and purpose of the employer’s business. Van Dalsen v. Inman, 238 Ark. 237, 379 S.W. 2d 261 (1964).

In this situation the burden was on the appellee to offer substantial evidence that at the time of the accident Walker was acting within the scope of his employment. Reserve Life Ins. Co. v. Hall, supra. The only evidence in the record is that Walker had deviated from his employment. There is no substantial evidence to show that he had returned to the scope of his employment at the time of the accident.

The improper instruction and the lack of substantial evidence require reversal. However, we will not dismiss the case because we cannot say that a deficiency of proof could not be supplied upon a retrial. Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919 (1969).

The appellant also argues that the statements made by Walker as to his intended journey were irrelevant to the issue of scope of employment and should have been excluded. We find no merit to this argument. We mention this only because it will likely occur on retrial.

Reversed and remanded.


author: George Rose Smith, Justice. Jimason J. Daggett, Special Justice,

text:
    Stanley DICKSON et al v. E. F. RENFRO et al
    77-403
    569 S.W. 2d 66
    Opinion delivered June 26, 1978
    (In Banc)
    [Rehearing denied September 11, 1978.]

      Phillip E. Norvell and Keith, Clegg & Eckert, for appellants.

      Woodward & Kinard, and Robert R. Wright, for appellees.
   George Rose Smith, Justice.

In 1976 a producing oil and gas well was completed on a 76-acre tract of land in Columbia county. The six appellants, claiming an undivided two-thirds contingent interest in the land under the peculiar wording of a deed executed in 1920, brought this suit to protect their contingent interest in the royalties to be derived from the well. Both sides filed motions for summary judgment. The chancellor did not find it necessary to construe the 1920 deed, because he found the appellants’ claims to be barred by a 1928 foreclosure suit and by limitations and laches. He therefore granted the defendants’ motion for summary judgment. We hold that the chancellor erred in entering the summary judgment, which makes it also necessary for us to construe the 1920 deed.

In 1918 the land was owned by M. J. Lecroy, who mortgaged it to W. S. McKissack to secure a $550 debt. Lecroy died in about 1919, survived by his widow, Maude, an adult son, Gus, and two adult daughters, Carrie Dickson and Omie Lecroy. In 1920 the widow and the two daughters conveyed their interest to Gus and his wife Mattie, the granting clause containing this language:

... do hereby grant, bargain, sell, and convey unto the said Gus Lecroy, and Mattie Lecroy, and unto their heirs and assigns, forever, if Gus and Mattie Lecroy have no heirs then to the heirs of Carrie Dickson, and Omie Lecroy, the following lands . . .

The habendum, covenants of warranty, and release of dower and homestead were in the usual form.

In 1928 McKissack brought suit to foreclose the mortgage. The widow and three children were the defendants. The complaint alleged, as a basis for a personal judgment, that Gus had assumed the payment of the mortgage indebtedness as the consideration for the 1920 deed. The foreclosure decree also recited that the consideration for the deed to Gus had been that he assume the payment of the note secured by the mortgage. The decree, in the usual form, included a personal judgment against Gus. McKissack bought the land at the sale and received a commissioner’s deed to it. About ten months later he sold the land back to Gus Lecroy for a recited consideration of $698. We may surmise that the land is unimproved, because the motions for summary judgment make no reference to actual possession by anyone.

Omie died in 1945, survived by one son, who is a plaintiff. Carrie died in 1967, survived by five children, who are the other plaintiffs. Gus and Mattie had no children. Gus died in 1972. Mattie is still living and in 1976, at the age of 85, adopted a daughter, the defendant Opal Renfro. As we have said, oil and gas were discovered on the land in 1976. This suit was filed later that year. There are 15 defendants in all, but, except for Opal Renfro and Mattie Lecroy, the abstract does not disclose what interest they assert in the property.

We consider first the effect of the 1928 foreclosure decree. Of course, as far as the mortgage was concerned, that decree extinguished the defendants’ equity of redemption. But Gus Lecroy had obtained his sisters’ two-thirds interest by agreeing to pay the mortgage debt. The grantors did not convey all their interest in the land, because the granting clause created an estate in their “heirs” if Gus died without “heirs.” Consequently, when Gus repurchased the land from McKissack soon after the foreclosure sale, his purchase amounted under familiar principles of law to a redemption in favor of his sisters and their “heirs.” See Slinkard v. Caldwell, 208 Ark. 398, 186 S.W. 2d 431 (1945); Lewis v. Bush, 171 Ark. 192, 283 S.W. 377 (1926); and other similar cases. Thus the effect of Gus’s redemption was to erase the foreclosure proceedings, leaving the parties in their original positions with respect to the title. We note in passing that the essential facts were all a matter of record and therefore in the chain of title.

We turn next to the interpretation of the 1920 deed, which conveyed the land to Gus and Mattie and their heirs and assigns forever, [but] “if Gus and Mattie have no heirs then to the heirs of Carrie Dickson, and Omie Lecroy.” It is our rule to construe deeds as a whole, giving effect if possible to all the language in our effort to carry out the intention of the parties. Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W. 2d 215 (1946). Here the word “heirs” was plainly intended to mean children or descendants, as it has often been construed in similar situations. Dyer v. Lane, 202 Ark. 571, 151 S.W. 2d 678 (1941); Powell v. Hayes, 176 Ark. 660, 3 S.W. 2d 974 (1928); Robinson v. Bishop, 23 Ark. 378 (1861); Restatement, Property, § 267, Comment c (1940). As we reasoned about an analogous problem in Dyer v. Lane, supra, the statement that if Gus died without “heirs” the property should go to his sisters’ heirs would be meaningless if the word “heirs” did not mean children, because Gus could not die without heirs in the broader sense if his sisters or their descendants were living.

Two minor arguments by the appellees do not require extended discussion. The rule against perpetuities was not applicable to the 1920 deed. All five parties to the deed must be included as the measuring lives; so the title had to vest at the death of the last survivor, well within the time allowed by the rule. Restatement, Property, § 374 (1944). Mattie’s adopted daughter cannot qualify as an “heir” within the intent of the 1920 deed. For one thing, an adopted child is not a bodily heir within the meaning of a prior conveyance. Nuckolls v. Mantooth, 234 Ark. 64, 350 S.W. 2d 512 (1961). For another, the deed, as we construe it, was to Gus and Mattie and their children, not to the children of either of them separately.

Finally, the defendants’ motion for summary judgment states no facts, other than the ones we have narrated, to show that the plaintiffs are barred by limitations or laches. We need not determine whether the plaintiffs’ estate is a contingent remainder or an executory interest, for in either case it did not become a possessory estate at least until Gus’s death, if not until Mattie’s. See Restatement, Property, § 267, Comment a; Simes & Smith, Future Interests, § 222 (2d ed., 1956); and compare Horsley v. Hilburn, 44 Ark. 458 (1884), and later cases treating contingent remainders in Arkansas.

The appellants, not having a possessory estate, could not have asserted any cause of action so long as Gus was living. Ordinarily a remainderman is not affected by adverse possession during the lifetime of the life tenant, because he has no right of entry. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809 (1952). Here the case is even stronger, because the identity of the “heirs” of Carrie and Omie could not be determined at least until Gus’s death, if not Mattie’s. The defendants’ motion for summary judgment asserts no facts suggesting that any basis for a finding of limitations or laches arose after Gus’s death in 1972. That question therefore remains open, for the appellants are mistaken in arguing that when both sides file motions for summary judgment they impliedly agree that there is no issue of fact in the case. Wood v. Lathrop, 249 Ark. 376, 459 S.W. 2d 808 (1970). This opinion merely disposes of issues of law raised by the trial court’s action in granting the defendants’ motion for summary judgment. The court expresses no opinion upon issues of fact that may be raised by either party at a trial on the merits.

Reversed and remanded for further proceedings.

Holt, J., not participating.

Special Justice Jimason J. Daggett and Byrd and Hickman, JJ., dissent.

Jimason J. Daggett, Special Justice,

dissenting. I respectfully dissent from the majority opinion herein. The case is presented to us on Motions for Summary Judgment. Thus the facts are undisputed. It seems to me that the majority opinion completely overlooks the conclusive evidentiary effect of the passage of time in this case. I can agree with the majority opinion, save and except the language therein where it is stated that “when Gus re-purchased the land from McKissack, soon after the foreclosure sale, his purchase amounted under familiar principles of law to a redemption in favor of his sisters and their heirs.” I readily agree that this is established law under most factual situations. It is commonplace in landlord and tenant cases (such as the Slinkard case, supra), and tax redemption cases wherein the close, sensitive, fiduciary relationship is shown. In both the Slinkard and Lewis cases, supra, relied upon by the majority, a party to the relationship promptly protested to violation of it, and clearly established a fiduciary, sensitive, trust relationship. Having so established the relationship, then the violation thereof was clearly a redemption. The Lewis case, supra, was decided upon the theory of a constructive trust, as well as upon the after-acquired title statute. It refers to “the necessary element of that unconscientious conduct which equity calls constructive fraud.” It is this element that appears to me to be completely missing from the facts here involved.

Here the parties to the alleged relationship, over a span of 39 years, have made no protest whatsoever of any so-called “unconscientious conduct.” It seems to me that the majority opinion overlooks this, simply holding that upon establishing an assumption of the indebtedness, a default, and a repurchase, irrespective of all other facts, as a matter of law the repurchase is an equitable redemption. I cannot agree because of the factual situation in this record. The conduct of the parties themselves, followed for 57 years, seems to me to establish a complete absence of any unconscientious conduct.

I concur that the consideration (but not necessarily the sole consideration) for the 1920 deed was an assumption by Gus of the McKissack indebtedness. I do not agree, however, that this fact supports the indispensable finding that a family agreement was necessarily made, between Gus on the one hand and Maude, Carrie and Omie on the other, which created a fiduciary, a sensitive, a trust relationship which converted the 1928 deed from McKissack to Gus into an equitable redemption. Appellants’ position is squarely based upon such a finding. The majority assumes that Gus agreed to pay the indebtedness in order to preserve the property for the benefit of Carrie’s and Omie’s heirs. Absent such a relationship, the doctrine of equitable, redemption has no application.

The complaint filed in the old foreclosure proceedings indicates that other factors were involved. It states that an agreement was made with Gus, “in writing,” to assume this obligation. The 1920 deed makes no mention of any obligation to assume the indebtedness. It is the only “writing” between those parties. Thus it seems fair to assume that the “in writing” obligation was with McKissack, and the decree renders personal judgment in favor of McKissack against Gus. The foreclosure decree recites: “All defendants herein deeded their interest in the aforesaid land to Gus Lecroy, one of the defendants, for the consideration, among other things, that he assume the payment of the aforesaid note, which by agreement of all parties to this suit he did assume. ”

Note the language, “by agreement of all parties.” This, of course, includes McKissack. The indebtedness was due in 1919, and the deed to Gus was dated in 1920. Thus, the indebtedness was then delinquent, and McKissack had the right to immediately foreclose. Certainly McKissack had no interest in obligating Gus to assume the obligation in order to protect the title for the benefit of Carrie’s and Omie’s heirs. It is much more logical to assume that McKissack imposed the assumption agreement for his own betterment and that the Lecroys felt required to agree in order to avoid immediate foreclosure. This would explain why, when the inevitable foreclosure did occur, with Maude, Omie and Carrie parties thereto, that Omie and Carrie made no protest and reflected no outrage for the remainder of their lives because of Gus ’ reacquisition of the property ten months later.

Maude, Carrie and Omie were all parties to the foreclosure proceedings. They filed no answer and introduced no proof whatsoever, yet McKissack was fully aware of the assumption by Gus. It is most logical, therefore, to me, to find that Gus’ agreement to assume was made to McKissack to avoid the immediate loss of the land by foreclosure. The indebtedness secured by the Deed of Trust was, as aforesaid, due January 10, 1919. The Deed of Trust was not foreclosed until 1928.

From this record I cannot read into it any ruse or device exercised by Gus to permit the lands to be foreclosed to defeat the limitations in the deed. I think it is clearly and irrefutably established by the acts and conduct of the parties to the so-called family agreement that there was no understanding that Gus would assume the indebtedness for the purpose of protecting the land for the benefit of Omie’s and Carrie’s heirs. The so-called equitable redemption — the McKissack deed to Gus — occurred in 1928. The deed was absolute on its face, was dated August 22, 1929, and recorded August 26, 1929. Thereafter, as is alleged in the plaintiffs’ complaint, “Gus Lecroy and Mattie Lecroy executed and delivered to these defendants (16 in number), or their predecessors in title (the record does not reflect how many), deeds purporting to convey some interest in the above described land.” Various mortgages or deeds of trust have been executed upon the property, purporting to convey and encumber an absolute interest therein. The holders of three current mortgages are parties defendant to this action. It also appears that there are outstanding Oil and Gas Leases, since the prayer of the complaint seeks a decree impounding the proceeds of oil, gas and other minerals produced from these lands. In short, Gus Lecroy exercised absolute, overt, full and complete ownership of these lands from 1929 until the date of his death in 1972. Moreover, his widow still lives, and until 1976 no protest was made of her absolute ownership. During all of these years the title to this land was vested in Gus and Mattie, as husband and wife. None were heard to protest that, on the event of Gus’ death prior to Mattie’s death, she would become the sole record owner of the property.

Omie died July 4, 1945. Thus, for 16 years she observed her brother and his wife exercising such acts of ownership, and she made no protest. Carrie died July 1, 1967. She, likewise, observed this “unconscientious conduct” for 38 years, without protest. I am not unmindful of the fact that Carrie and Omie had conveyed their interest in these lands to Gus and that the ultimate owners thereof had no present right to bring a possessory action. Carrie and Omie did, however, have the right to institute a proceeding to declare and establish this to be an equitable redemption, a violation of the trust agreement to which they allegedly were parties. Yet they did nothing. To me, this is most persuasive, if not conclusive, evidence of the fact that they did not consider Gus’ reacquisition of the property, following the proceedings, a violation of any family agreement. Both Omie and Carrie, as aforesaid, were parties to the foreclosure and they are charged with knowledge that it purported to completely destroy any interest which they, their heirs or assigns, might have in these properties. They are equally charged with knowledge that Gus reacquired the property free and clear of any “family” obligation. His deed, on its face, purported to be in direct and specific violation of the agreement, if such agreement existed. Carrie and Omie observed the creation of interests in this property in favor of innumerable third parties (16 of whom are presently owners and defendants herein), which interests were directly and diametrically opposed to those of Omie’s and Carrie’s “heirs.” Yet they remained silent. To me, this silence speaks most eloquently in establishing that there was no family agreement. It seems quite obvious to me that such agreement was conceived and found its being by the discovery of oil on the property in 1976. In the absence of such discovery, the course of conduct previously pursued by all of the parties would have continued indefinitely, everyone being quite content with Gus’ and Mattie’s absolute ownership of the property.

I would affirm the Chancellor’s denial of the plaintiffs’ Motion for Summary Judgment and his action in granting the defendants’ Motion for Summary Judgment, agreeing with him that the record fails to establish any family agreement as asserted by the plaintiffs.

I am authorized to state that Justices Byrd and Hickman concur in this dissent.