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WOOD, J., (after stating the facts). The record shows that the appellants filed in the court below the following motion: “That the defendants opposed the transfer of this cause from the law side of the docket and now and here object to the jurisdiction of the court to try said cause, wherefore defendants ask that the said action be dismissed.” The record further shows that, when this motion came on to be heard, the parties agreed in open court “that this cause was transferred to this court by order of the Boone Circuit Court over the objection of the defendants.” The record thus shows that the appellants duly objected to the jurisdiction of the chancery court, both when the transfer was made from the law court over their protest and again when they moved to dismiss after the cause had reached the chancery court, on the ground that the chancery court had no jurisdiction. The court can only look to the allegations of the complaint to determine whether or not the cause was properly transferred to the equity court. For it appears that the transfer was made over the objection of the appellants before the answer had been filed or the testimony adduced. The complaint does not state a single ground to give a court of equity jurisdiction. It states only a cause •of- action for the recovery of money which it is alleged had been obtained through the false representations of Harry Gore, for the firm of Rinehart & Gore, by which the appellees were induced to enter into a written contract with oné C. E. Sarber, who was representing the firm of Rinehart & Gore, and by which false representations appellees were induced to pay over their money which the appellants converted to their own use; that same was a fraudulent scheme, etc., by which appellees were deprived of their money. In Dillon v. McAllister et al., 40 Ark. 189-191, we said: “But, in the absence of other equitable elements for relief, courts of chancery do not entertain bills for compensation in money merely. Such relief, if it be all to which complainant is entitled, cannot be administered under a prayer for general relief. ’ ’ Appellants filed a motion to dismiss the complaint on the ground that “the same is vague and uncertain in this, that it alleged a suit upon a contract without stating whether same was written or oral and if written not made an exhibit.” Appellees contend that appellants by filing this motion and by a failure to move the court specifically to transfer the cause to the circuit court waived the right to have the cause tried in that court. The appellees would be correct in their contention perhaps if the above motion had been the only one filed by. the appellants. But, as we haveo already stated, the record shows that the appellants at the inception also objected to the transfer of the cause to the chancery court. The name by which a pleader designates his pleading is immaterial. The pleading should be treated according to its legal effect. The motion to dismiss on the ground that the complaint was vague and uncertain and that it did not set out the written contract should have been, and doubtless was, treated by the court as a motion to make the complaint more definite and certain. Both motions of the appellants were filed on the same day, September 5, 1917, and were overruled on the same day, October 19,1917. It, therefore, is conclusively established by the record that the appellants at the proper time challenged the jurisdiction of the court to hear this cause and that they have not waived their right to have the same reviewed here. But, notwithstanding the allegations of the complaint fail to show a cause of action in equity, inasmuch as the appellees selected their forum and adduced their testimony and submitted their cause to a hearing before the chancery court, they are not in an attitude to complain. Therefore, if the uncontroverted testimony or even a clear preponderance of the evidence proved that the appellees had no cause of action, the decree of the chancery court should be reversed and a decree should be entered here dismissing their complaint for want of equity. The finding of the trial court was not clearly against the preponderance of the evidence. Therefore, appellants are not entitled to have a decree rendered here in their favor dismissing the complaint for want of equity. But appellants are entitled to have the cause transferred to the law court, and to have the issue of fact tried before a jury. It could serve no useful purpose to set out and comment in detail upon the evidence, and since the cause must be tried at law we refrain from so doing. There was testimony which tended to prove that the leases, on lands for the purpose of drilling for oil, designated in the record as the Sarber leases, though taken in Sarber’s name, were taken for the benefit of the appellants, and that in the making of the contracts for the drilling, as alleged in the complaint, Sarber acted for the appellants ; that Gore, of the firm of Rinehart & Gore, was present and made the representations when the last drilling contract was entered into with Sarber and made the alleged false representations set up in the complaint by which it is alleged the appellees were induced to enter into the contract and pay over their money. The principle applicable in the case of a vendor who by false representations induced one to enter into a purchase is, by analogy, applicable here. “It is well settled that one who has been induced to purchase property by the false representations of the vendor has the right to recover in the court of law any damages which he has sustained thereby.” Joyce v. McCord, 123 Ark. 492. In Grayling Lumber Co. v. Ebbitt, 134 Ark. 182, we said: “ It is not necessary for the relationship of agency to exist between a vendor and the party inducing or procuring the sale of lands through fraud and deceit in order to warrant relief against the vendor. A vendor will be held liable if he participates in the fraud; or if he had knowledge of the fraud and adopts or takes advantage of it.” While there was a decided conflict in the evidence on the issue of fraud, that was an issue for the jury which should have been sent to them under proper instructions in such cases. For the error in refusing to transfer the cause to the law court, the decree is reversed and the cause will be remanded with directions to transfer to the circuit court and for further proceedings according to law and not inconsistent with this opinion.

SMITH, J. Appellant, who is the owner of a large amount of land situated in the Cypress Creek Drainage District, brought this suit to enjoin the officers of that district from enforcing the collection of the taxes claimed to be due on his lands for the years 1915 and 1916. The lands were delinquent for those years at the time of the institution of the suit. Appellant alleged that the acts of the Legislature under which the district was organized were unconstitutional. He also alleged that the Board of Directors was illegally organized, in that one of the directors was ineligible, and that the assessments against his lands were unjust, unequal and excessive. In an answer and cross-complaint the drainage district prayed the foreclosure of its lien for the taxes. It was admitted that certain lands owned by appellant were erroneously assessed as town lots when they should have been assessed as acreage property and given the assessment of corresponding property similarly situated, and the prayer of the complaint for this relief was granted. The court held against appellant on all other questions and directed that his lands be sold if the taxes were not paid within the time limited, but refused, to impose the penalty of twenty-five per cent, as required by section 13 of the act (Acts 1915, p. 297), amending the act of March 18, 1911 (Special and Private Acts 1911, p. 260), organizing the district, and both parties have appealed. It is first insisted that the act is unconstitutional because, as counsel says, “It is a double-header, treats of two subjects, distinct and opposite,” his specific objection.being that, whereas the title to the act is an act to organize certain territory into a drainage district for the purpose of draining the lands in said district, it also provides for the construction of certain levees. Two answers may be made to this objection. The first is that the present Constitution, unlike that of 1868, contains no inhibition against an act of the Legislature embracing more than one subject. The second answer is that section 3 of the act declares, “The intent and purpose of this act being to protect the territory described in section 1 hereof from floods from the gap in the Mississippi River levee between Jefferson lake and Cypress creek, and to provide a complete and thorough system of drainage for surface water, said board is hereby authorized, empowered and directed to adopt the maps, profiles and other information shown by the survey now on file in the office of the present Board of Directors of said district, which maps and profiles were made under the supervision of the Bureau of Drainage Investigation of the United States Department of Agriculture'; * * *” The report of the Bureau of Drainage Investigation referred to in the act is found in the transcript, and an essential part of the plan there approved involved the construction of certain levees to prevent the overflow of the territory sought to be drained. The act divided the territory of the district into five subdistricts and provided that one director should be elected from each subdistrict in which he resided; and it is contended that the director elected for subdistrict No. 1 was an actual resident of subdistrict No. 5. This director was at least a cle facto officer and his title and right to act cannot be inquired into in this collateral proceeding. The testimony in the case was chiefly directed to an attempt to show that excessive betterments were assessed against appellant’s lands. But that question is not open to inquiry in the present suit. This district was created by the acts of the General Assembly above referred to, which amended Act No. 110 of the Acts of 1911 (Special and Private Acts 1911, p. 260), and at the time of the passage of Act No. 80, Acts 1915, litigation was pending which involved- the assessment of benefits against the lands in the district, and section 5 of this act of 1915 undertook to validate these assessments and, after a legislative declaration that “all of the lands of the district will receive benefits to the extent .of the assessment against them,” directed that “all persons claiming that their lands will not be benefited by the making of the improvement contemplated by this act are hereby required to apply to the proper court of chancery, within sixty days after the passage of this act, to enjoin the enforcement of said assessment; and any person failing so to apply to the court of chancery within said sixty days shall be forever barred from contesting the assessment of benefits aforesaid.” The appellant did not avail himself of the right given to appear within the sixty days and protest against his assessment, and he cannot complain, if, by ja, belated appeal to the court, he was denied the redress he might have obtained by a seasonable application to the court made within the time limited by law. Board of Improvement v. Pollard, 98 Ark. 543. The court below properly rendered a decree against appellant’s lands for the foreclosure of the lien fixed by law; but refused to impose the penalty of twenty-five per cent, which had accrued before this suit was filed, the action of the court being based upon the ground that appellant was blind and had been ill. But section 13 of the act requires the taxes to be paid between the first Monday in January and the 10th day of April and imposes a penalty of twenty-five per cent, against all lands on which the taxes are not paid. The law makes no exception in favor of the sick or the blind, and the courts are powerless to write that exception into the law. Sims v. Cumby, 53 Ark. 418; Smith v. Macon, 20 Ark. 17. The decree must be reversed with directions to impose the penalty fixed by law. In all other respects it is affirmed.

MoCULLOCH, C. J. This is an action instituted in the chancery court of Prairie County attacking the validity of a special statute enacted by the General Assembly of 1919 creating a road improvement district in Prairie County. Act No. 107, session of 1919. Appellant owns property in the district, and, in addition to the attack on the validity of the statute, he challenges the legality and fairness of the assessment of benefits made by the commissioners. The cause was heard upon oral testimony and there was a decree entered by the chancery court dismissing the cause for want of equity. Another property owner in the district brought a similar suit attacking the validity of the statute on precisely the same grounds as involved in the present action, but that cause has not been decided below. Counsel for plaintiff in that suit have appeared here, however, and asked leave to file a brief, and permission was given for them to do so, but instead of filing brief on the merits of the case they merely filed an abstract of the record in their case for the purpose of showing identity of the issues involved, and they ask for the postponement of the hearing of the present case until their case can be brought here on appeal. We see no reason for postponing the hearing of this case, but, of course, the conclusion we reach in the present case will not affect the rights of the litigants in another cause on a different state of facts, if it is developed that the facts are different. The several grounds of attack on the validity of the statute are summarized in the briefs as follows: “(1) Because it authorizes the commissioners to pay expenses of preparing the act itself; (2) because it limits the right of appeal from a judgment of a county court to twenty days, which is contrary to the general law of the State, allowing six months’ time for appeal; (3) because it limits the time within which suit may be brought relative to said improvement district, contrary to the general statute of limitations; (4) because it authorizes the commissioners to advertise and sell lands of the district where assessments have been made and not paid, without bringing a proceeding against the owner, but by description of the land only; (5) because it authorizes the commissioners to assess gnd tax against the property in the district the cost of organizing and promoting said district even though no improvements were made thereon; (6) because it provides that the commissioners shall not be liable for negligence; (7) because it authorizes the commissioners to sell any land which may be purchased by the district at any price and upon any terms, thereby ignoring the rights of property owners entirely ; (8) because the .act was not approved by the Governor as required by law, in that after the act had been passed by both houses of the Legislature a protest was filed with the Governor asking that he veto the same, the hearing upon the protest was set for a certain day and in the interim the Governor was absent from the State and the promoters of the act, including the representative of Prairie County and one of the commissioners, with full knowledge of all these facts, xiresented the bill to the Lieutenant Governor or Acting- Governor and induced him to approve and sign said bill before the date set for said hearing, concealing from him the facts, which amounted to fraud, and said bill was therefore not legally approved or signed by the Executive of the State; (9) because each one of the three commissioners is a large landowner in the district, and each one of the commissioners is authorized to act as an assessor and to act as a judge in passing on issues as to the amount of the assessments, which is contrary to that clause of the Constitution that no person shall sit as a judge in his own case.” Nearly all of the questions stated above have been expressly decided by this court against the contention of appellant. We decided in the recent case of McClelland v. Pittman, 139 Ark. 341, that a provision in a statute creating a road improvement district which authorizes payment of legal expenses of preparing the statute and other work in promoting the formation of the district before the passage of the statute, even if void and unenforceable, does not render the whole statute invalid. This answers the first and fifth grounds of attack stated above. The second ground of attack, that the limitation on the right of appeal is void, is answered by the decision of this court in St. Louis, Iron Mountain & Southern Railway Company v. Maple Slough Drainage District, 138 Ark. 131, 211 S. W. 168. According to the principles which control in that and other cases, the third ground of attack is also untenable. We have repeatedly upheld a similar provision in general statutes with reference to improvement districts in cities and towns. The fourth ground of attack seems to be that the Legislature has no authority to authorize a foreclosure of a tax lien by proceedings in rem, or by proceedings in the nature of proceedings in rem, but we have upheld such authority in cases dealing with a similar provision in other special statutes creating* improvement districts, as well as general statutes authorizing organization of improvement districts in municipalities. McCarter v. Neil, 50 Ark. 188; Greenstreet v. Thornton, 60 Ark. 369; Ballard, v. Hunter, 74 Ark. 174. No reason is stated in the brief why we should strike down the provision in the statute to the effect that the commissioners shall not be liable for negligence. Such provision is found in most of the statutes on this subject enacted in this State, and no attack has ever been made on any of the statutes because of such provision. Commissioners act in a representative capacity and the question of personal liability for their own acts is a matter which is within the control of the Legislature. Neither is any reason given why it is beyond the power of the Legislature'to authorize the commissioners to fix the terms for the sale of lands which the district may acquire. That is a matter entirely within legislative control and there is no constitutional restriction upon the power of the Legislature in this reg’ard. The eighth ground, of attack cannot be sustained, as it is not within the province of the courts to inquire into the motives of .the Chief Executive in approving or disapproving an act of the General Assembly. The motives and conduct of the Chief Executive, as well as members of the Legislature, are not proper matters for review by the courts when they are acting within the scope of their constitutional functions. The last contention is that the act is void because it names as the commissioners of the district and ex-officio assessors men who are large land owners in the district. We decided in the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Board of Directors, 103 Ark. 141, that the fact that members of the board of commissioners of an improvement district were owners of land in the district did not avoid the statute or render the members of the commission incompetent to act. In the attack on the validity of the assessments of benefits numerous objections are made with respect to the failure of the commissioners to comply with the terms of the statute, such as the requirement to take the oath of office and of filing with the county court plans and estimates and other such matters, but the record presented shows that those requirements were fully complied with. Other grounds for setting aside the assessments are stated in the pleadings as follows: “That the commissioners did not make a fair and equitable assessment and assessed the lands of the commissioners, J. F. Sims and T. T. Sims, at a much lower basis and amount than that assessed against the lands of the plaintiff and other land owners, tailing into consideration the amount of real benefits to said lands; that the commissioners, after assessing the benefits against the Chicago, Rock Island & Pacific Railway Company and the St. Louis Southwestern Railway Company, voluntarily decreased the same to avoid litigation and prevent said railways from instituting proceedings to test the validity of the act and the proceedings of the district, which reduction correspondingly increased the assessment -against the land of the plaintiff.” Oral testimony was heard by the court concerning the method of assessment and the reasons for reducing the assessments of the railway corporations mentioned, and we are of the opinion that the evidence justified the court in refusing to declare the assessments to be discriminatory and void. A discussion of the testimony in detail would serve no useful purpose. Upon the whole we are unable to discover any reasons for declaring invalid either the statute itself or any of the proceedings thereunder. The decree is, therefore, affirmed. HUMPHREYS, J., not participating.

HART, J., (after stating the facts). It appears from the record that in 1893, A. J. Hanson executed to J. T. Waller, as trustee, a deed of trust to the lands in controversy to secure an indebtedness which he owed to J. M. Waller and that his wife never joined him in its execution. The act to render more effectual the constitutional exemption of homesteads, approved March 18, 1887, provides that no conveyance or mortgage affecting the homestead of any married man shall be of any validity except for taxes, laborer’s and mechanic’s liens, and the purchase money, unless his wife joins in the. execution of such instrument and acknowledges the same. Kirby’s Digest, section 3901. The Legislature of 1893 passed an act to cure defective conveyances and acknowledgments which were defective or ineffectual by reason of not having complied with the act of March 18, 1887, above referred to. See Acts of 1893, p. 303. This act has the effect to validate the deed of trust from A. J. Hanson to J. T. Waller to secure an indebtedness to J. M. Waller. W. B. Stevens, as substituted trustee, sold the lands pursuant to the terms of said deed of trust to J. M. Waller for the sum of $209.60 and executed a deed to him therefor, on the 6th day of May, 1899. On the 20th day of November, 1900, J. M. Waller entered into an executory contract of sale in writing with A. J. Hanson for sale of said lands for the sum of $117. The contract of sale provided that the note for the purchase money should be due and payable on the first day of November, 1901, and that, upon the failure of A. J. Hanson to pay tbe note when due, the contract of purchase should cease and $40 rent should be paid for said lands for the year 1901. Under the terms of this agreement the vendor had the power, upon the failure of his vendee to pay the purr chase money, to declare the contract of purchase at an end, and thereafter to establish the relation of landlord and tenant between the parties. See Ish v. Morgan, McRae & Co., 48 Ark. 413, and Souter v. Witt, 87 Ark. 593. This, however, Waller failed to do. It is true Waller wrote Hanson a letter in September, 1902, reminding him that he had not paid the purchase money and threatening to take action in the matter at once, but so far as the record discloses, no action was ever taken by him in the premises. This letter was written almost a year after the purchase money became due. Hanson died soon after this letter was written, and in a few months thereafter his widow and some of his children moved back on the lands and have continued in possession thereof in person, or through their tenants, ever since. Waller did not make any attempt to oust them from the land. He gives as an excuse that he was advised by his attorneys that the widow of A. J. Hanson had a homestead interest in the lands and was therefore entitled to the possession of them. For the reasons already given, it is apparent that Mrs. Hanson had no homestead interest in the lands and it is no excuse that J. M. Waller made a mistake about the law; for he is presumed to know the law and to have asserted his rights under it. His action, therefore, in allowing the defendants to continue in the possession of the lands after so long a period of time will be deemed a waiver of his right to a forfeiture under his contract with A. J. Hanson. This brings us to a consideration of the prayer of the defendants and cross-complainants for specific performance. A. J. Hanson died intestate, leaving the defendants as his heirs at law. By virtue of the bond for title from J. M. Waller to himself, he came into the possession of an estate which was descendible by inheritance, which at his death vested in his heirs at law. Roach v. Richardson, 84 Ark. 37. A. J. Hanson was left in possession of the land under this contract and he continued in possession until his death; His widow and heirs have been in possession in his right ever since. The continuation of their possession, by the tacit consent of J. M. Waller and his vendee, J. G-. Brown, until the latter brought this suit to quiet his title and made the defendants parties thereto, was a constant and continued affirmance, on the part of them, that the holding of the defendants and their father was under the bond for title. There was no necessity for the defendants to bring a bill for specific performance until J. M. Waller, or his vendee, J. Gh Brown, created the necessity by bringing an action for the lands. Hargis v. Edrington, 113 Ark. 433. To the same effect see Waters v. Travis, 9 Johnson’s Rept. (N. Y.) 448; Norman v. Bennett (W. V.), 9 S. E. 914; Coffey v. Emigh (Col.), 10 L. R. A. 125; Mudgett v. Clay (Wash.), 31 Pac. 424, and Western Railroad Corporation v. Babcock, 6 Mete. (Mass.) 346. Therefore, neither the statute of limitations, nor the doctrine of laches can have any application to the rights of the defendants to maintain their bill for specific performance. The chancellor, however, found that the defendants had not paid the purchase money, and in this finding we think he was correct. It is true one of the defendants testified that he was with his father when he paid the purchase money in the fall of 1900 just before Christmas. He said that his father went to town with some cotton and after selling it paid off the note. He was 33 years of age when he testified and consequently was only 15 years old when this transaction occurred. J. M. Waller flatly contradicted his testimony and he is corroborated by the circumstances of the case. According to the testimony of N. S. Hanson, the money was paid to J. M. Waller at the latter’s house. The note was not de livered to A. J. Hanson, but was retained in the possession of Waller. This is inconsistent with the fact of payment. Besides this, A. J. Hanson did not demand a deed, but on the- contrary soon moved away from the lands to the State of Louisiana. When all the attending circumstances are considered, we are convinced the chancellor was right in holding that neither the defendants, nor their father ever paid the purchase money. For this reason a decree for the specific performance will not be granted to the defendants except upon their payment of the purchase money together with the accrued interest and the taxes which have been paid by J. M. Waller, or the plaintiff, J. Gr. Brown. For the error indicated in the opinion the decree must be reversed, and the cause will be remanded for further proceedings in accordance with this opinion.

McCULLOCH, C. J. Appellant is the holder of a county warrant of Greene County issued prior to certain statutory proceedings in that county calling in the warrants of the county for reissue or cancellation, and this appeal involves an attack on said order, appellant having failed to appear and present the warrant for reissuance. The sole point of attack on the validity of the proceedings in the county court is that the affidavit to the proof of the publication of notice was made by the publisher of one of the newspapers in which the notice was published, whereas the statute (Kirby’s Digest, section 4924) provides that notices and advertisements required by law be proved by the affidavit of “the editor, proprietor, manager or chief accountant, with a copy of such advertisement annexed, stating the number of times and the date of the papers in which the same was published shall be sufficient evidence of publication.” The sheriff made his return in writing, which recited in detail proper service of the order of the county court in the manner required by statute. Kirby’s Digest, sections 1176, 4923.' Separate affidavits concerning the publication in tbe two newspapers were filed with tbe return of the officer—the affidavit concerning the publication in one of the newspapers being properly made by the manager of the newspaper, but the other was made by the publisher. Appellant relies upon the case of Gibney v. Crawford, 51 Ark. 34, where the rule was laid down that the calling in of county warrants for cancellation or reissue is a special statutory proceeding which, in order to be valid, must be strictly in accordance with the terms of the statute, and that, the statute “having prescribed the manner in which the notice should be given, it could not be given legally in any other manner; and having prescribed what shall be the evidence of the publication it can be proven in no other manner. ’ ’ In the case just referred to there was no return of the sheriff in the record, and the only evidence of publication was a defective affidavit. The statute in force at that time provided that the affidavit of the ‘ ‘ editor, publisher or proprietor, or the principal accountant of any newspaper” should constitute “the evidence of the publication thereof.” Mansfield’s Digest, section 4359. The statute now in force differs from the one .in force at that time in that it merely provides that the affidavit of the parties named shall constitute “sufficient evidence of publication.” Kirby’s Digest, section 4924. The distinction has been pointed out, and the difference in the effect of the two statutes discussed in the opinion of this court in Porter v. Dooley, 66 Ark. 1, and in subsequent cases. In Gibney v. Crawford, supra, it was also pointed out that it is the duty of the sheriff in making his return on the order of the county court calling in warrants to file with his return the affidavits proving the publication in newspapers, and in that case, since there was no return on the record, the affidavits constituted the sole evidence of the proof of publication. In Baker v. York, 65 Ark. 142, and Miller County v. Gazola, 65 Ark. 353, it does not appear from the opinion whether or not written returns were made by the sheriff, and the several orders of the county court were declared to be void because of the defective affidavits concerning the publication in the newspapers. The present case differs from either of those cases in both respects, for here we have the return of the sheriff showing publications of the notice in the manner prescribed by statute. The delivery of the order of the court by the clerk pursuant to the terms of the statute (Kirby’s Digest, section 1176) constitutes process which the sheriff must serve as required by la.w, and the statute directs the sheriff to make a return in writing on all process which comes to his hands. Kirby’s Digest, section 6381. It being the duty of the officer to make return of the affidavits of each “editor, proprietor, manager or chief accountant,” the recitals of his return may be contradicted by the other evidence which accompanies it. Nevada County v. Williams, 72 Ark. 394. But in this instance the accompanying affidavit does not contradict the return of the sheriff, for it is defective only in that it was made by the wrong person, and, as the statute does not make the affidavit of the “editor, proprietor, manager or chief accountant” the sole evidence of publication, but only makes it sufficient evidence, it does not contradict the return of the sheriff in the complete statement made therein that the publication was for the requisite number of times, at the proper time, and by a newspaper which had a bona fide circulation, as required by the statute. We are of the opinion, therefore, that the order of the county court is not void, and the judgment of the circuit court was correct. Affirmed.

Per Curiam. Road Improvement District No. 1 of Perry County, one of the appellees, is a road improvement district formed by an order of the county court of Perry County pursuant to Act No. 338 of the General Assembly of 1915 (p. 1400), and the other appellees are commission ers of the district. Appellants own property in the district and instituted this action in the chancery court of Perry County for the purpose of obtaining a decree enjoining the commissioners from proceeding, under an order of the county court, to construct certain lateral roads and extensions not described in the original plans for the improvement. It appears from the pleadings that after the organization of the district, the plans were, altered so as to provide for additional lateral roads and extensions of the originally specified roads, and that those plans have been approved by an order of the county court, and that the commissioners are about to proceed with the construction of the roads and the additional laterals and extensions pursuant to the altered plans. This litigation involves an attack on the validity of the proceedings on two grounds, one, that the statute does not, when properly interpreted, authorize the alteration of the original plans so as to provide for the construction of additional laterals or extensions not mentioned in the original plans which would constitute a substantial variance of those plans, and the other ground, that if the statute is an attempt to confer such authority, it is ineffectual because it contains no provision for assessing additional benefits arising from the added improvements. The chancery court upheld the validity of the proceedings and sustained the demurrer to the complaint. Two of the justices of this court, Mr. Justice Hart and Mr. Justice Smith, are of the opinion that the first of the grounds of attack stated above should be sustained, that the proceedings looking to an alteration of the original plans are, for that reason, invalid, and that the decree of the chancery court should be reversed; two of the justices, Mr. Justice Wood and Mr. Justice Hart, are of the opinion that the second ground of attack stated above is well taken and that the proceedings are, for that reason, invalid, and that the decree should be reversed; Mr. Justice Wood does not agree with the other two justices as to their conclusion on the first ground of attack, and Mr. Justice Smith does not agree with the other two justices as to the second ground of attack. The Chief Justice and Mr. Justice Humphreys are of the opinion that both grounds of attack are untenable, that the proceedings are valid, and that the decree should be affirmed. A majority of the justices entertain views on each of the points of attack which, if separately involved, would result in affirmance of the decree, but since the majority are, on different grounds, in favor of reversal, that must be the net result of their divergent views on the points involved. It thus appears from the above recital that three of the justices are of the opinion that the decree should be reversed, but they do not agree on the ground of reversal. The decree is, therefore, reversed and the cause remanded with directions to the chancery court to overrule the demurrer to the complaint, and for further proceedings.

HUMPHREYS, J. Appellant was indicted, tried and convicted of a felony, in the Benton Circuit Court, under section 1902 of Kirby’s Digest, for unlawfully, maliciously and feloniously cutting down ten apple trees growing upon the land of Julius Giger and Henry Giger in said county and State, and one year’s imprisonment was imposed upon him as a punishment therefor. Prom the judgment of conviction an appeal has been duly prosecuted to this court. The evidence tended to show that, on or about the 10th day of October, 1918, appellant, who had had a dispute or quarrel with his employers, Julius Giger and Henry Giger, the owners of an apple orchard near Benton-ville, Arkansas, consisting-of about 65 acres of 17-year-old apple trees and some resets, entered the orchard in the night time and cut down 75 or 80 apple trees of the value of $1,000, and injured others by cutting the limbs off and hacking them; that the trees so cut down and injured were of the value of about $1,000 as fruit trees, but were of nominal value, only, as wood or timber trees, and had to be hauled to the brush heap and burned. Over the objection and exception of appellant, the jury were instructed, in substance, that, if they found from the evidence beyond a. reasonable doubt that appellant cut down and injured the trees at the time and in the manner alleged in the indictment, and that they were of the value of more than $10, they should find him guilty and assess his punishment at imprisonment not exceeding two years; but, if they found from the evidence beyond a reasonable doubt that appellant cut down and damaged the trees at the time and in the manner charged in the indictment, and that said trees were of the value of $10 or less, they should find the defendant guilty of malicious mischief and assess his fine at not less than $50. Appellant requested instructions to the effect that the value of the trees should be determined by the jury according to their market value as timber, and not their estimated value as fruit trees. The instructions requested by appellant upon the method of valuing the trees were each refused and proper objections and exceptions were made and saved to the ruling of the court in refusing to give said instructions. It is insisted by appellant that section 1902 of Kirby’s Digest, under which appellant was indicted, which is section 1 of the act of March 17, 1883, does not include the destruction of, or injury to, fruit trees. Said section reads as follows: “Any person who shall, -without lawful authority, wilfully and knowingly enter upon any lands belonging to this State, or any lands belonging to any corporation or person, and shall cut down or destroy, or cause to be cut down or destroyed, any tree or trees standing or growing thereon, of the value of more than ten dollars, or any person who shall induce, assist, aid or abet any other person so to do, shall be deemed guilty of a felony, and shall upon conviction be punished by imprisonment, at hard labor, in the State penitentiary not more than two years.” It will be observed that there is no ambiguity in the language used in the section. In plain terms, it is made a felony by the section just quoted to wilfully and knowingly enter upon the lands of the State, any corporation or person and destroy or injure “any tree or trees” standing or growing on said land. Giving each word in the section its ordinary meaning, all kinds of trees, whether timber, fruit, ornamental or shade, are included under the rules for the construction of statutes laid down by this court in the cases of McNair v. Williams, 28 Ark. 200; Geary v. Parker, 65 Ark. 521; Hancock v. State, 97 Ark. 38. As suggested by the Attorney General, in order to place the interpretation contended for by appellant upon section 1902 of Kirby’s Digest, it would be necessary to insert the word ‘1 timber ’ ’ before the word ‘ ‘ tree ’ ’ or to add an exception to the section of “fruit trees.” This addition or exception would conflict with the rule of this court laid down for the construction of statutes in the case of Hodges v. Dawdy, 104 Ark. 583. By reference to section 1906 of Kirby’s Digest, which was section 5 of the act of March 17,1883, being the same act in which section 1902 of Kirby’s Digest appears as section 1, it is apparent that the Legislature did not intend to limit the kind of trees cut to timber trees. The following language appears in the latter part of section 1906 of Kirby’s Digest, or section 5 of the act of March 17,1883: “It shall not be necessary to allege in the indictment, or prove on the trial, the kind of trees, timber, lumber, staves or shingles cut, destroyed or carried away; * * # It is urged by appellant that the crime! charged against him is not included in section 1902 of Kirby’s Digest because specifically defined in section 1901 of Kirby’s Digest. Section 1901 not only defines malicious mischief as destroying or injuring “any kind of wood or timber, standing or growing upon the lands of any other person,” but also characterizes the destruction or injury of ‘ ‘ any fruit, ornamental or shade trees ’ ’ a crime. The use of the words “wood or timber” in section 1901 might have reference to only trees growing which could be converted into “wood or timber” and, in order to include all kinds of trees, it was necessary to specifically designate the other kinds of trees as fruit, ornamental or shade trees. It was not necessary, however, to add “fruit, ornamental or shade trees” in section 1902, as the use of the words “any tree or trees” would include, necessarily, all kinds of trees. It will be observed that section 1902 of Kirby’s Digest makes the same trespass a felony if the value of the tree or trees destroyed or injured exceed $10 in value. So, from that fact, it is quite clear that there is no conflict in the statutes. A party might be prosecuted under either. This court said in the case of Meadows v. State, 130 Ark. 471, in an indictment for a felony under section 1902 of Kirby’s Digest, that the defendant could be convicted for a misdemeanor under section 1901 of Kirby’s Digest, for the reason that section 1901 of Kirby’s Digest was not repealed by section 1902 of Kirby’s Digest, because there was no inconsistency between the two sections. This conclusion was necessarily reached because section 1901 made the trespass a misdemeanor, and section 1902 made it a felony if the value of the trees exceed $10. It is true in the case of State v. Malone, 46 Ark. 140, that Mr. Justice Smith, in holding that there was no inconsistency between the two statutes, said that “the earlier statute punishes the trespasser without regard to the intent of the trespasser; whereas the later requires the act to be done with intent to convert the property to the use of the taker or that of his employer or principal.” In that case, the learned justice was not dealing with section 1902 but 1903 of Kirby’s Digest. Section 1903 of Kirby’s Digest is clearly a larceny statute involving the question of intent. Section 1902 of Kirby’s Digest does not make the intent to .convert the property to one’s own use an element of the crime any more than does section 1901. It is next insisted by appellant that reversible error was committed because the value of the timber was not ascertained by the jury and included in the verdict. It is provided in section 1906 of Kirby’s Digest that “in case the accused be found guilty, the value of the timber so cut down, destroyed, sawed or carried away shall be stated in the finding or verdict.” We think the only purpose and intent of said section 1906 was to form a basis for civil liability. It was necessary under the instructions of the court for the jury to find that the trees exceeded $10 in value before they could convict appellant. The failure to insert in the verdict the real value of the trees in excess of $10 could not affect appellant’s guilt or innocence. The statute is directory and not mandatory. Lastly, appellant insists that the judgment should be reversed because the court erred in refusing to instruct the jury that, in ascertaining the value of the trees destroyed or injured, they must determine it by their market value as timber, and not their estimated value as fruit trees. The rule for measuring the value of such trees, defined in the requested and refused instructions, does not conform to the rule announced by this court in the case of Laser v. Jones, 116 Ark. 206. The rule therein announced is the criterion by which the value of fruit trees should be determined. No error appearing in the record, the judgment is affirmed.

McCULLOCH, C. J. This case involves an attack on the validity of act No. 82 of the General Assembly of 1919, which was approved February 14, 1919. Section 1 of the statute, which declares its pupose, reads as follows : “The purpose of this act is to secure the construction of a highway running from the city of-North Little Rock, Arkansas, through the counties of Pulaski, Lonoke, White, Jackson, and connection with the Alicia and Walnut Ridge Highway on the Lawrence County line at or near Alicia, thereby giving a through route to the Missouri line, over the Alicia and Walnut Ridge Highway to Walnut Ridge, thence over highway of Road Improvement District Number Two of Lawrence County to Randolph County line, thence over highway of Road Improvement District Number Three of Randolph County to Pocahontas, thence over highway of Pocahontas and Donathan to Missouri. To that end, there are hereby organized four improvement districts: One for Pulaski County, one for Lonoke County, one for White County and one for Jackson County. Said districts shall be entitled respectively, the Arkansas and Missouri Highway District in Pulaski County, the Arkansas and Missouri Highway District in Lonoke County, the Arkansas and Missouri Highway District in White County and the Arkansas and Missouri Highway District in Jackson County. Each of said districts shall be corporate bodies, with the right to sue and be sued, to have a corporate seal and to perform all the functions granted to them by this act. The limits of each district shall embrace all quarter sections of land, any portion of which is within five miles of the route as selected by the commissioners, whether the same be laid off in town or city lots or not. ’ ’ Other sections name the commissioners for each of the districts and provide for the construction of the improvement, the issuance of bonds and the assessment of benefits. The other provisions of the statute involved in the attack made in this case on its validity will be referred to later in the discussion. It appears from the section copied above that the lawmakers intended in this single statute to create four separate road improvement districts in different counties with no relation to each other except an effort to attain uniformity in the route of the combined roads to be con strueted under the provisions of the statute. Section 4 authorizes the commissioners of the respective districts, in connection with 'the State Highway Department to “proceed to select a highway across their respective counties and joining with the highway selected by the commissioners of the adjacent counties,” but that if “the commissioners of any two districts are unable to agree upon a meeting point of the respective highways, the State Highway Engineer shall fix the meeting point.” That section further provides that when the route may be selected the county court shall proceed to lay out the public roads pursuant to the general statutes on that subject. Appellee owns lands in Jackson County within the limits of the district as laid out, and he instituted this action in the chancery court of Jackson County to restrain the commissioners of the Jackson County district from proceeding under the terms of the act to assess benefits and levy taxes thereon. Some of the attacks relate to the validity of the whole statute, and others are directed to the question of the validity of only that part of the statute which creates the Jackson County District. The first point involved relates to the question of inclusion or exclusion of lands in Independence County. The Jackson County route as selected by the commissioners runs for a considerable distance within five miles of the Independence County line, and it is insisted that the statute is invalid because it either includes Independence County lands lying within the five-mile limit without providing for a method of assessment, or excludes those lands, notwithstanding the fact that the statute itself constitutes a legislative determination that all lands within the five-mile limit will be benefited by the improvement. We interpret the language of the statute to mean that only Jackson County lands within the five-mile limit are embraced within the boundaries of the district. There is some ambiguity in the language of the several provisions of section 1 when read separately, but, when read together and in connection with the statute as a whole, it is apparent that the lawmakers intended to create four separate districts, the boundaries of which were to be within the four separate counties mentioned, and that the concluding words of the section specifying the limits of the districts relate only to lands in the county, notwithstanding the fact that the route may run near enough to the boundary of an adjoining county to include lands of that county within the five-mile limit. The name by which the separate districts are indicated in the statute shows clearly the intention of the lawmakers. The districts are designated respectively, the “Arkansas and Missouri Highway District in Pulaski County, the Arkansas and Missouri Highway District in Lonoke County, the Arkansas and Missouri Highway District in White County and the Arkansas and Missouri Highway Dis: trict in Jackson County.” The fact, too, that the various sections relating to the organization of the district, the supervision of the respective county courts and the appointment of assessors all indicate that the districts are created by counties, and are confined to the limits of the counties mentioned. The other point of attack that the statute is void because it excludes the Independence County lands is answered by saying that the statute only constitutes a legislative determination of benefits to the lands embraced in the districts and not all land within five miles of the route. It may have been determined by the lawmakers that lands in adjoining counties where perhaps the trend of travel is in a different direction may not receive benefits, even though within five miles of the road, or that the benefits received may be relatively so slight as not to justify inclusion within the boundaries of the district. We cannot say, in other words, that the legislative determination that the lands in Independence County will not be benefited is on its face arbitrary and without foundation. On this point the case is ruled by the decision of this court in Conway v. Miller County Highway & Bridge District, 125 Ark. 325, which involved the validity of a statute authorizing the construction of a bridge across a navigable stream which formed the boundary between two counties, and it was held that the failure to include lands in one of the counties would not render the statute invalid. The same conclusion was reached in other cases. Mullins v. Little Rock, 131 Ark. 59; Fenolio v. Sebastian Bridge District, 133 Ark. 380. The chancery court decided that the statute was void for the reason that the construction of the road in .White County through the agency of a district in that county was dependent upon the petition of a majority of the property owners in that county and might not be constructed at all, thus thwarting the purpose of the lawmakers in providing for the creation of four districts for the construction of continuous roads. Section 27 of the statute provides, in substance, that, after the adoption of plans for the construction of the improvement in White County, further progress shall- be suspended until a majority of the owners of property within the district in that county shall petition the county court for the ratification or adoption of the statute, and when a majority so petitions the county court an order shall be entered directing the commissioners to proceed with the construction of the'road. The General Assembly of 1919 subsequently passed Act No. 128, which was approved February 26, 1919, taking the White County district out of the operation of Act No. 82, or rather abolishing the district created by Act No. 82 in White County and authorizing the construction of the highway in that county pursuant to the terms of Act No. 213 of the session of 1917. The validity of the last mentioned statute is not involved in the present litigation further than it may be found to affect the validity of Act No. i82 relating to the creation of the districts in the other counties mentioned. We are of the opinon, however, that neither section 27 of Act No. 82, or Act No. 128 abolishing White County District created by Act No. 82, renders the former statute invalid so far as it creates the districts for the improvement of the roads in the other threé counties. The effect of act No. 82 as originally enacted was, as before stated, to provide for the construction of a road along a continuous route, but the lawmakers saw fit to express in section 27 the condition that the construction of the road in only one of the counties should be dependent upon the will of a majority of the land owners. An intention is clear that the force and validity of the statute with respect to the construction of the roads in the other counties should not depend upon the construction of the road in White County. There is a clearly expressed legislative purpose to build each of the roads, and a condition is attached to the construction of only one of them, which does not affect either one way or the other the force of the other parts of the statute creating the districts in Jackson, Lonoke and Pulaski counties. The new statute (act No. 128) does not affect the validity or force of any part of the old statute, except that part which relates to White County. It leaves the remainder of the statute in force. The chancellor also decided that the statute was void because the limitation upon the assessment of benefits contained in section 22 “is unjust and inequitable, and not equal and uniform, as required by the Constitution of the State.” Section 22, as amended by the subsequently enacted statute approved March 13, 1919, reads as follows : ‘ ‘ The total assessed benefits shall not be collected in less than twenty years and one-twentieth of said assessed benefits shall not exceed an average of ten cents per acre per annum on the rural property nor an average of thirty cents per annum per lot of the dimensions of 50x140 feet on the property in cities of the first class and proportionately for larger or smaller lots or tracts of land, and an average of one-half that amount on lots or tracts of land in incorporated towns or cities of the second class. Provided this section shall not apply to any lands or cities located in the district known as ‘ Arkansas-Missouri Highway District in Jackson County.’ ” It will be observed that this section, by its express terms, is made inapplicable to the district in Jackson County. We fail to discover in this part of the statute any grounds for declaring act No. 82 invalid, even as applied to Jackson County or any of the other counties. The section quoted merely fixes the maximum of annual assessments and constitutes a legislative determination of the uniformity of this maximum in fixing the annual assessments on rural land at ten cents per acre and the assessments on city property at thirty cents on each lot of certain dimensions and half that amount on other urban property. This classification does not appear to be obviously erroneous, and the will of the lawmakers ought not to be disturbed. Nor'does the method of collecting assessments lack uniformity because there is no maximum prescribed as to property in Jackson County. Of course, under the law the assessments must be limited to the benefits derived from the improvement and must be uniform, but the limitation prescribed in this section of the statute relates only to the maximum annual levy of taxation, and it did not violate any rule of uniformity by failing to apply to one of the counties embraced in the statute. Each of the districts created are just as separate and distinct as if they were created by different statutes, and it was within the power of the Legislature to prescribe the method of collecting assessments, even though different methods are prescribed in the different districts. The next point urged against the validity of the statute is in respect to its operation in connection with another road district in Jackson County which has adopted the same route. The statute itself makes no reference to the other road district, but it is alleged in the compláint that a road improvement district has been organized under general statutes for the purpose of building a road from Newport to Tuckerman, that the district has sold its bonds and is actively engaged in the construction of the road, which is laid out along the route adopted by the commissioners of the Arkansas and Missouri Highway District in Jackson County, and that this fact constitutes a frustration of the design of the Legislature in creating the last mentioned district. In the answer of the commissioners they admit that Road Improvement District No. 2 of Jackson County organized under general statute is constructing a road from Newport to Tuckerman along the route selected by the commissioners, but that the plans formed by these commissioners do not provide for the construction of a road along that route and that their plans do not interfere with the construction of that part of the road by Road Improvement District No. 2 of Jackson County. It will be seen from inspection of any map of the State that the road between Newport and Tuckerman constitutes a section of the route in Jackson County which ends at Alicia on the Lawrence County line. The exclusion of that section from the operation of the present statute will constitute a gap in the road to be constructed through the agency created in Act No. 82. We do not stop to consider what effect, if any, the enactment of this statute has upon the creation under the general statutes of Road Improvement District No. 2 of Jackson County, but we are called upon merely to consider the effect of the action of the commissioners of the Arkansas and Missouri Highway District in Jackson County in selecting a route through that county along which a road is being constructed by another public agency. It will be observed that section 1 of act No. 82 authorizes the commissioners of the district in each county to select the route, and that it declares that all lands situated within five miles of the route as selected shall be embraced within the district. Note in this connection that the boundaries run from the route selected, not necessarily the road actually constructed. The commissioners have selected the route along which the road from Newport to Tuckerman is proposed to be constructed through another agency, but the route remains as selected, and the boundaries embrace all lands within five miles of the route selected. The fact that the plans adopted by the commissioners do not contemplate a construction of the road along part of the route does not affect the boundaries of the district. It may affect very materially the question of the assessment of benefits, but that is a matter with which we are not concerned in determining the validity of the statute. We do not know judicially the extent to which the lands within the five-mile limit along the route between Newport and Tuclcerman may be affected beneficially by the construction of the other portions of the road in addition to that portion of it which is to be constructed through another agency. Nor do we know judicially the boundaries of Road Improvement District No. 2. There may be such a thing legally as the overlapping of the boundaries of separate improvement districts if substantial benefits are derived from each district. Cumnock v. Alexander, ante p. 153. Those matters are taken into consideration merely in ascertaining benefits, and, as before stated, do not affect the validity of the creation of the district unless the fixing of boundaries of different districts is shown to be arbitrary and demonstrably erroneous. The last point of attack made in this case is that section 4 of the statute authorizes the commissioners of the several districts “to construct bridges, subways, culverts and all necessary appurtenances of said roads,” and that the construction of a bridge across White River in Jackson County would operate as an unjust and unequal burden on tax payers on lands in that county. The answer to that contention is, we think, that the language of the statutes does not authorize the commissioners to construct a bridge across White River as a part of the road to be improved. That would constitute a separate and distinct improvement which is not embraced within the terms of the statute. The language quoted above was manifestly intended to refer to such bridges, subways, and culverts as would constitute necessary appurtenances to the road- to be constructed, and not bridges of such size and magnitude as would constitute separate improve- merits. Section 5, which is the one that relates to the method of assessing benefits, refers only to the assessment of benefits “which will accrue by reason of the construction of the highway in their respective counties, ” and makes no mention of the construction of bridges, which shows that the Legislature did not intend to authorize the construction of bridges which would constitute separate improvements, but merely bridges and culverts which would be essential portions of the road and constitute a part of the particular improvement and not a separate one. These are the only points of attack made in the pleadings and briefs of counsel, and we do not enter upon consideration of any other phases of the statute. The conclusion reached is that the attack is not well founded, and that the chancery court was in error in declaring the statute to be void. The decree is reversed, and the cause is remanded for further proceedings not inconsistent with, this opinion. HART and SMITH, JJ., dissent.

HUMPHREYS, J. Appellant instituted suit against appellee, in the year 1912, in the Arkansas Chancery Court, to foreclose a mortgage given to secure a note for $2,976.70, of date December 9, 1911, bearing interest at the rate of 8 per cent, per annum from date until paid. Appellant was a wholesale and appellee a local dealer in musical instruments. They transacted a large volume of business with each other prior to the execution of the note and mortgage ih question. The issues presented by the pleadings involved the statement of an account between the parties, which was made by a master appointed for that purpose by the chancery court. The master found that appellant was indebted to appellee in the sum of $226.58, and a judgment was rendered in ac cordance therewith, from which appellant prosecuted an appeal to this court. This court held on appeal that the account was improperly stated by the master and restated it on a different basis. The decree of the chancery court was thereupon reversed, annulled, set aside and remanded with directions to the chancery court to enter a decree in favor of appellant for the sum of $1,534.22 and to foreclose the deed of trust. A money judgment for that amount would have been rendered here in favor of appellant against appellee had the title to land not been involved. The aforesaid order and decree by this court was rendered on the 14th day of January, A. D. 1918. The mandate was filed in the chancery court on April 17, 1918, with the request by appellant to enter a decree of foreclosure for $2,608.55. This amount included interest from December 9,1911, on the amount of $1,534.22, ascertained by this court on restatement of the account to be the balance due from appellee to appellant. The request was denied and appellant duly excepted to the ruling of the court. On the 4th day of June, 1918, appellee tendered into court, for the use and benefit of appellant, all costs and the sum of $1,534.22, with interest at the rate, of 8 per cent, per annum from January 14, 1918, to the date of tender. The court ruled the tender sufficient and a full satisfaction, release and. discharge of the indebtedness and mortgage. To the aforesaid ruling of the court, appellant duly excepted. Appellant then accepted the amount tendered, under stipulation and agreement with appellee that the acceptance thereof should not waive or affect its right to prosecute an appeal to .this court. The appeal was perfected and the cause is before us a second time. It is contended that the chancery court, upon remand of the case, erred in not allowing interest on the sum of $1,534.22 at the rate of 8 per cent, per annum from the 9th day of December, 1911, the date of the note, to April 17, 1918, the date the mandate'was filed. Learned counsel for appellant places that construction on the decree and mandate of this court. The wording of the decree was as follows: “It is therefore ordered and decreed by the court that the decree of said chancery court in this cause rendered be, and the same is hereby, for the error aforesaid, reversed, annulled and set aside with costs; and that this cause be remanded to said chancery court with directions to enter a decree in favor of the appellant for the sum of $1,534.22, with foreclosure of the deed of trust. ’ ’ We are unable to discover any ambiguity in the language used or direction given. The decree rendered by the chancery court was reversed and remanded with directions to enter the decree of foreclosure for $1,534.22 in favor of appellant. The exact amount was specified and necessarily related to the amount of the indebtedness due on the date of the decree, as no other date was mentioned. The specific amount determined and directed to be entered became a final adjudication of this court upon adjournment of the court and cannot be changed or modified upon a second appeal. The decree, having been rendered in accordance with directions of this court, is affirmed.

McCULLOCH, C. J. This is an action instituted by appellant against appellee in the chancery court of Marion County to recover the amount of funds alleged to have been collected by appellee as the agent and trustee of appellant and wrongfully appropriated to another use in violation of the trust. Appellee pleaded his discharge in bankruptcy, and also pleaded that appellant is es-topped to pursue the remedy adopted in the present action by reason of its election to pursue another remedy in the bankruptcy court. The facts of the case are undisputed. Appellee and one Fee composed a mercantile firm doing business in Marion County, Arkansas, and the firm became indebted to appellant in the sum of $2,631.36, and pledged to appellant certain promissory notes executed by customers of the copartnership. On January 10, 1916, appellant delivered said notes to appellee under a written contract whereby appellee undertook to collect the notes, or to secure renewals from the several obligors, and to return to appellant “the original notes or renewal notes or the cash received in payment of any one or all of these notes.” Appellee collected the amount of the notes and mingled the funds with funds in bank of the copartnership, and in that way used the funds in the general business of the firm in the purchase of merchandise and in the payment of accounts of other creditors. In April, 1916, the copartnership and appellee went into voluntary bankruptcy and were discharged after having been adjudged to be bankrupt. Appellant proved its claim against the copartnership and received a dividend of about $800, which was credited on the amount of the indebtedness. "While the discharge of appellee in the bankruptcy proceedings was pleaded in the answer, it is now conceded that the discharge itself did not operate as a bar to the present action, but it is insisted that appellant waived its right to pursue the remedy against appellee by proving up its claim in the bankruptcy proceedings against the copartnership as an unsecured creditor and accepting dividends based on the allowance of the full amount of the claim. The contention of appellee is based on the theory that appellant occupied the position of a secured creditor of the copartnership but elected to prove its claim as an unsecured creditor, and must, therefore, be held to have released its security and waived its right to proceed to the enforcement of the security. The fallacy of this argument is in assuming that appellant was, at the time it presented a claim in bankruptcy, a secured creditor within the meaning of the Federal statute. The facts do not afford basis for that contention. Appellant had, prior to the bankruptcy proceedings, held as security the notes which had been pledged by the copartnership, but that security had become dissipated by the wrongful act on the part of appellee in committing a breach of the trust in mingling the funds with those of the copartnership. The security was no longer in existence and appellant’s only remedy, aside from the original obligation of the copartnership, was the right of action against appellee for his wrongful misappropriation of the funds. This, however, was purely collateral, and did not, as before stated, put appellant in the attitude of being a secured creditor within the meaning of the bankruptcy statute. Bank of Searcy v. Merchants Grocer Co., 123 Ark. 403. Nor can it be said that appellant waived its right to pursue this remedy by participating in the distribution of the funds collected by appellee and mingled with the assets of the copartnership, for the proof does not show that the funds constituted a part of the assets of the co-partnership at the time the assets were administered. Appellee in Iris answer alleged that he used the proceeds of the collection “in the payment of the indebtedness of the said J. H. Talburt & Company, ’ ’ and in his- testimony in the case he stated that he “put the money into the bank account of. the firm J. H. Talburt & Co., and paid it out to the creditors of the firm,” and on cross-examination he stated that the money was used from the bank account “to buy merchandise for the store and my family and I lived off the merchandise out of the store.” It does not appear, therefore, that the funds collected constituted a part of the assets distributed in kind or that appellant was put upon notice that such was the ease, and the doctrine of election does not, on that account, apply. The decree of the chancellor was erroneous, and the same will be reversed and judgment entered here in favor of appellant for the amount claimed, with interest. It is so ordered.

SMITH, J. Appellants are the widow and children of J. C. Chiles, and brought this suit as such to compensate the loss sustained by them in the death of their intestate. For their cause of action the following facts are alleged: That the defendants were conducting a mercantile business at No. 119 Rogers avenue in the city of Fort Smith in a four-story brick building, of which they had joint control and management. Other allegations of the complaint are as follows: “That said defendants were in joint control of all of the pipes, pumps, tanks, machinery and all • other appliances that were used by defendants in their business in furnishing the gas and ammonia that was used for the various purposes of the ‘defendants in said building. ‘ ‘ That there was large amounts of ammonia used by said defendants in said building and by reason thereof they had large amounts or quantities of ammonia stored in pipes, tanks and vats in the basement of said building and they also had large amounts and quantities of natural gas circulating through and into said building by means of large pipes. “That on or about 1:50 p. m. on the 22d day of October, 1918, through the negligence of the defendants, their agents, servants and employees, in some manner unknown and unexplained to plaintiffs, the gas and ammonia that was being used by said defendants in said building was exploded and was set on fire and said building was wrecked and burned up and demolished and the said J. C. Chiles, deceased, who was in said building at the time of said explosion and when said gas and ammonia was set on fire, was killed by reason of said explosion and fire by the gas, ammonia, and by fire which suddenly filled said building, before he was able to make his escape from the fourth floor of said building where he was at work as an employee of the W. J. Echols Company, wholesale grocers. “That at the time of the said explosion and fire, the said J. C. Chiles, deceased, was in the employ of the W. J. Echols Company, wholesale grocers, and when the explosion and fire occurred, he was in a room or on the fourth floor of the said building of the defendants aforesaid, which room or floor the said W. J. Echols Company, wholesale grocers, had rented or reserved from the defendants and into which the said W. J. Echols Company, wholesale grocers, had the right under its contract with the defendants to enter with its employees to transact its business on said fourth floor of said building and it also had the right of ingress and egress to said building and the said defendants by reason of their said contract with the said W. J. Echols Company, wholesale grocers, owed it and its employees a contractual duty and ordinary care not to injure or kill them by reason of an explosion of the said gas and ammonia or the burning of the gas and ammonia in said building which was used in their building, 'by their negligence or by the negligence of either of them. ; “That at the time that said J. C. Chiles, deceased, was killed by said explosion and by the burning of said gas and ammonia in said building, he was at work for the said W. J. Echols Company, wholesale grocers, and was in the due scope or course of his employment and was using due and proper care and caution for his own safety and protection at the time he was killed, and that it was through no fault of his that said explosion occurred or that said gas and ammonia was set on fire or that he was killed. ' , “That the defendants owed the said J. C. Chiles, deceased, a contractual duty as aforesaid not to injure or kill him by their negligence in the manner as aforesaid. “That plaintiffs do not know the exact act or acts of negligence of the defendants that caused said explosion and caused said gas and ammonia to be set on fire and they were unobtainable by these plaintiffs as^ said building, pipes, pumps, tanks, vats, machinery and appliances in and being used in said building were in the sole and exclusive control and management of the defendants, their agents, servants, and employees as was also the gas and ammonia that was in said building and that was being used by said defendants in their business in said building at the time. “That it was through the negligence of the defendants that said explosion occurred and said gas and ammonia was set on fire and that said building was wrecked and burned up and demolished and that said J. C. Chiles, deceased, was killed. “That said explosion would not have occurred and said gas and ammonia been set on fire and said building would not have been wrecked and burned up and demolished and the said J. C. Chiles, deceased, been killed if the defendants had used due and proper care in the management and control of the pipes, pumps, tanks, vats, machinery and appliances that were used by said defendants in their business in furnishing the gas and ammonia that was used for the various purposes of the defendants in said building and if they had used due and proper care in the storing and handling of the said gas and ammonia th^t was used by said defendants in said building. “That the act or acts of negligence upon the part of the defendants that caused said explosion and caused said gas and ammonia to be set on fire and said building to be wrecked, burned up and demolished and caused the said. J. C. Chiles, deceased, to be killed, were and are known to the defendants.” A demurrer was filed on the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendants, or either of them. The demurrer was sustained and the complaint dismissed, and this appeal has been prosecuted to review that action. Appellants first insist that negligence on the part of the defendants is sufficiently charged to constitute a cause of action; and the second contention is made that, if this be not true, sufficient facts are alleged to make applicable the maxim res ipsa loquitur. "We do not agree with the first contention. The allegations in regard to negligence- are in effect conclusions of law; and if the maxim res ipsa loquitur is not applicable the complaint is demurrable. Ballard v. Kansas City & Memphis Farm Co., 131 Ark. 83; Hollis v. Hogan, 126 Ark. 207; Phillips v. Southwestern Tel. & Tel. Co., 72 Ark. 478; Northern Construction Co. v. Johnson, 132 Ark. 528; Keller v. Vowell, 17 Ark. 445; C., R. I. & P. R. Co. v. Smith, 94 Ark. 524; Wood v. Drainage Dist. No. 2, 110 Ark. 416; Southern Orchard Planting Co. v. Gore, 83 Ark. 78. So far from alleging the cause of the explosion or the particular act or acts of negligence which occasioned it, the complaint contains the affirmative recital that the plaintiffs do not know the cause of the injury, consequently there could be no specific allegations concerning it. When analyzed, the complaint is found to contain substantially the following allegations: That a four-story business house was blown up and plaintiff’s intestate killed; that the building and all gas and ammonia fixtures and appliances therein were in the exclusive control of the defendants; that the intestate was rightfully in.the building at the time of the explosion but had no duty to perform in connection with the instrumentalities which occasioned the injury; and that the cause of the explosion was unknown to plaintiffs. The concurrence of these conditions makes applicable the doctrine of res ipsa loquitur. This doctrine does not dispense with the requirement that the party who alleges negligence must prove the fact; but relates only to the mode of proving it. Stewart v. Vandeventer Carpet Co., 138 N. C. 60, 50 S. E. 562. As 'applied to railroads the rule is stated in 4th Elliott on Railroads, section 1644, as follows: “The true rule would seem to be that when the injury and circumstances attending it are so unusual, and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road over which the company has entire control, a presumption of negligence on the part of the company usually arises from proof of such facts,in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury.” We quoted and approved this statement of the law in the case of Biddle et al., Recvrs., v. Riley, 118 Ark. 218; Choctaw, O. & G. Rd. Co. v. Doughty, 77 Ark. 9; Price v. St. L., I. M. & S. R. Co., 75 Ark. 491; and St. L., 1. M. & S. R. Co. v. Armbrust, 121 Ark. 351. In the Riley and Price cases the persons injured were passengers upon trains; and in the .Doughty case a fireman on a freight train, while in the Armbrust case the party injured was a traveler at a railroad crossing who was hit by a piece of coal falling from the train. But there is nothing in the opinion in any one of the cases which makes the doctrine applicable only to railroads. There are cases which apparently treat the doctrine as applicable only against carriers, and it is no doubt true that the doctrine has been more frequently applied in cases against carriers of passengers than in any other class of cases. But there appears to be no valid reason for thus limiting the doctrine. A leading case on the subject and one well considered is that of Judson v. Giant Powder Co., 29 L. R. A. 718. That was a case where property was destroyed by an explosion of nitro-glycerine in process of manufacture into dynamite, and Mr. Justice G-aroutte, speaking for the Supreme Court of California, said: “All courts agree that, where contractual relations exist between the parties, as in cases of common carriers, proof of the accident carries with it the presumption of negligence, and makes a prima facie ease. This- proposition is elementary and uncontradicted. Therefore the citation of authority is unnecessary. Yet we know of no sound reason, and have found none stated in the books, why this principle of presumptions should be applicable to cases involving contractual relations, and inapplicable to cases where no contractual relations exist. It is intimated in some Indiana case that the presumption arises upon proof of the accident by reason of the carrier’s contract to safely deliver the passenger at his destination, but there is no such contract. The carrier is not an insurer of his passenger. If he were, this presumption of negligence arising from the accident, aside from the act of God, would be conclusive and irrebutable; but such is not the fact, for it is only prima facie and always disputable. As was well said by the court in Rose v. Stephens & C. Transfer Co., 11 Fed. Rep. 438: “Undoubtedly the presumption has been more frequently applied in cases against carriers of passengers than in any other class, but there is no foundation in authority or in reason for any such limitation of the rule of evidence. The presumption originates from the nature of the act, not from the nature of the relations between the parties.’ The carrier’s contract with his passenger is simply to exercise a certain degree of care in his transportation. It is a duty which the law enjoins upon him; but the law also enjoins the duty upon this appellant and all others, in the conduct of their business, to exercise a certain degree of care towards this respondent and all mankind. The duty which the law enjoins in the two cases only differs in the degree of care to be exercised. The principle of law involved is wholly the same; and, as has been said, the reason of the rule is not found in the relations existing between the party injuring and the party injured. The presumption arises from the inherent nature and character of the act causing the injury. Presumptions arise from the doctrine of probabilities. The future is measured and weighed by the past, and presumptions are created from the experience of the past. What has happened in the past, under the same conditions will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown. Based upon the foregoing principles, a rule of law has been formulated, bearing iipon • a certain class of eases, where damages either to person or property form the foundation of the action. This rule is well declared in Shearman and Bed-field on Negligence (section 59): ‘When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable, evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.’ Tested by this rule, no question of contractual relation could ever form an element in the case. With the same reason it might as well be said that cases of contract were excluded from the effect of the rule, as that cases of pure tort were excluded; but, upon the contrary, it is plainly evident that both classes of actions come equally within its provisions. In speaking on this question, it is said in Cooley on Torts (p. 799): ‘The rule applied to carriers of passengers is not a special rule, to govern only their conduct, but is a general rule which may be applied wherever the circumstances impose upon one party alone the obligation of special care. ’ The author then cites the case of the householder engaged in repairing his roof. A piece of slate falls therefrom, and injures a traveler upon the street. He then says: ‘True, the act of Grod,. or some excusable accident may have caused the slate to fall, but the explanation should come from the party charged with the special duty of protection. ’ ’ ’ In support of the statement of the law thus quoted a larg’e number of cases are there cited and reviewed. There is also an extended case note. In the article on Negligence in 20 R. C. L., section 156, it is said: “More precisely the doctrine res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. * * * The presumption of negligence herein considered is, of course, a rebuttable presumption. It imports merely that the plaintiff has made out a prima facie case which entitles him to a favorable finding unless the defendant introduces evidence to meet and offset its effect. And, of course, where all the facts attending the injury are disclosed by the evidence, and nothing is left to inference, no presumption can be indulged—the doctrine res ipsa loquitur has no application.” Amd in section 157 of the same article it is said: “ * * * It has been held in some cases that the maxim applies only where the relation of carrier and passenger exists, or where there is a contractual relation between the parties “to the transaction producing the injury; but the prevailing view is that a presumption of negligence may be indulged in many other cases, and independently of any contractual relation between the person injured and him who is charged with responsibility for the injury. * # * .” At section 158 of the same article it is said that this doctrine has found frequent application in cases of injuries from falling objects and substances, and that the rule has been applied in many instances to injuries produced by the fall of awnings, signs, walls, buildings, parts of buildings, building materials, tools, electric wires, and many other objects. Annotated cases are cited in the notes to the text, which collect a very large number of eases. Among the annotated cases there cited are our own cases of St. L., I. M. & S. R. Co. v. Hopkins, 54 Ark. 209, annotated in 12 L. R. A. 189, and the case of Hall v. Gage, 116 Ark. 50, annotated in L. R. A. 1915 C. 704. The litigation in the case of Hall v. Gage, supra, arose from the falling of a wall which had been left standing after a fire, and in holding that the trial court had erred in refusing to charge the jury that the falling wall was prima facie evidence of negligence which imposed upon the owner the burden of showing that the ac-dent happened without his negligence, we said: “In the case of Earl v. Reid, 18 Am. & Eng. Ann. Cases, p. 1, 21 Ontario Law Reports, 545, Teetzel, J., said: ‘I think it is the plain duty of every owner of land to keep the buildings or structures thereon in such a condition that they shall not, by falling or otherwise, cause injury to persons lawfully on adjoining lands. In other words, every owner of a building is under a legal obligation to take reasonable care that his building shall not fall in the street or upon his neighbor’s land and injure persons lawfully there. “ ‘While the owner cannot be charged for injuries caused by inevitable accident, the result of vis major or of the wilful act or negligence of some one for whom he is not responsible, he is liable for injuries caused by the failure on his part to exercise reasonable care.’ “The fact that the wall fell is prima fade evidence of negligence in conformity with the maxim, res ipsa loquitur. Thompson’s Commentaries on the Law of Negligence, volume 1, par. 1213. See, also, paragraph 1060 of the same volume. To the same effect see Earl v. Reid, supra.” In the case of Gurdon & Ft. Smith Ry. Co. v. Calhoun, 86 Ark. 76, an employee working on the railroad track was injured by the falling of a tie-jack weighing three hundred pounds from a work car, and it was there contended by the railroad company that the injury complained of was not caused by the running of a train in the sense of the Constitution and statute making railroads liable for damage done by the running of trains; but the court expressly pretermitted the decision of that question for the reason there stated that the uncontradicted facts raised the presumption of negligence and in so holding the court said: “Appellee was in a place where he had a right to be. It was a safe place until made dangerous by the presence and operation of the train over which appellant railway company had the exclusive management and control. The falling of a ‘tie-jack/ weighing three hundred pounds, from the car could not well have happened in the usual course unless there had been some negligence in loading it on the car in the first place, or in the manner in which the train was operated and the car was moved, in the second place. Such an implement, if handled with ordinary care, could not fall from the car in the usual and ordinary method of its use as shown by the proof. The fact, then, that it did fall raises the presumption of negligence.” In the case of Southwestern Telegraph & Telephone Co. v. Bruce, 89 Ark. 581, the telephone company strung a wire across a vacant lot, which broke and left the end on the foundation of a house where the plaintiff was working. Plaintiff picked up the wire to throw it aside, and was shocked, and burned. The court applied the doctrine of res ipsa loquitur in fact but not eo nomme and in doing so said: “And where the defendant owes a duty to plaintiff to use care, and an accident happens causing injury, and the accident is caused by the thing or instrumentality that is under the control or management of the defendant, and the accident is such that in the ordinary course of things it would not occur if those who have control and management use proper care, then, in the absence of evidence to the contrary, this would be evidence that the accident occurred from the lack of that proper care. In- such case the happening of the accident from which the injury results is prima facie evidence of negligence, and shifts to the defendant the burden of proving that'it was not caused through any lack of care on its part.” Another case which applied the doctrine in fact but not eo nomine is that of Jacks v. Reeves, 78 Ark. 426. The complaint there alleged that as plaintiff was driving along the road the top of her carriage was caught by defendant’s telephone wire and tom off, causing the horse to become frightened and run away and injure the plaintiff. The court charged the jury “That the plaintiff, in order to entitle her to recover damages under this action, is required to prove that the accident occurred through the negligence of W. D. Reeves.” Discussing that instruction the court said it was abstractly correct; that no liability rested upon the defendant except through negligence,, but that the instruction was misleading under the facts of that case in not being qualified or coupled with another one explaining that the evidence of the accident and injury following therefrom, when the occurrence was (not) out of the usual course, was prima facie evidence of neglect and shifted the burden onto the defendant to prove that it was not caused by any want of care on his part. See, also, Arkansas Telephone Co. v. Ratterree, 57 Ark. 429; St. L., I. M. & S. R. Co. v. Steele, 129 Ark. 532; Thompson on Negligence, vol. 1, sec. 1213. In the case of Barnowski v. Hilson, 15 L. R. A. 33, the facts were that the roof of a house slipped and tipped to one side and fell while being raised by jackserews. There was no showing that the house had been sufficiently braced nor other explanatory proof offered, and the Supreme Court of Michigan held there was a presumption of negligence which entitled the plaintiff to go to the jury. Appended to this case is an extended note in which a large number of cases are collected. We conclude, therefore, that a cause of action was stated in the complaint, and if testimony is offered which supports these allegations a case will be made entitling plaintiffs to go to the jury to have decided whether such testimony, considered together with any other testimony which may be offered, discharges the burden of proof resting upon the plaintiff. The judgment of the court below sustaining the demurrer is, therefore, reversed and the cause will be remanded with directions to overrule the same.

SMITH, J. Appellant was the plaintiff below and alleged in his complaint that while employed by appellee (the defendant) he was directed to wipe an engine and while doing so got his fingers caught and crushed in the machinery and that thereafter he was directed to go to a physician employed by appellee to treat its injured employees, and that this physician treated his injuries so carelessly and negligently that the amputation of all the fingers on the injured hand became necessary. In support of these allegations testimony was offered which would have supported a verdict—had the jury so found— that appellant had not been properly and skillfully treated by the physician. But at the conclusion of appellant’s testimony the court directed the jury to return a verdict in appellee’s favor, and this appeal has been prosecuted from the judgment pronounced thereon. The testimony in the case appears to have been addressed to the proposition that the physician was negligent and that appellee was liable for this negligence because it directed appellant to consult him. There is no intimation in the pleadings that appellee was negligent in selecting a physician, nor is there any testimony to that effect unless it be by inference that appellee was negligent through having employed a negligent physician, and in appellant’s brief cases are cited in which this court has held that pleadings will be treated as amended to conform to the testimony where the testimony is admitted without objection. No offer was made to amend the pleadings in the court below, nor was it there insisted that the pleadings should be treated as amended to conform to the testimony, and we think that no policy, however liberal, of permitting pleadings to be treated as amended to conform to unobjected testimony would require us to treat the pleadings as amended to allege a fact which appears in the testimony, not as a direct affirmation, but only as an inference from the testimony. We have a case, therefore, in which the pleadings and proof show only that an injured employee was directed to, and placed in charge of, a physician who was guilty of negligence in his treatment of the case. But this allegation and this proof did not make a case for the jury. Where the employer owes his employee the duty of furnishing medical attention, or undertakes to discharge that duty, he does not become liable for the physician’s negligence or lack of skill, bnt is liable only when he fails in the discharge of his duty to exercise ordinary care to .select a physician possessing the requisite skill and learning and one who would give the patient the attention and treatment which the case requires. This is the doctrine of the case of Ark. Midland Ry. Co. v. Pearson, 98 Ark. 398, and of St. L., I. M. & S. R. Co. v. Taylor, 113 Ark. 445. The judgment of the court below is, therefore, affirmed.

WOOD, J., (after stating the facts). The first question presented is whether or not the court erred in refusing to allow the appellant to introduce records attacking the tax title and whether or not the court erred in instructing the jury as above set forth. Section 2743 of Earby’s Digest is as follows: “The defendant in his answer shall set forth exceptions to any of said documentary evidence relied on by the plaintiff to which he may wish to object, which exceptions shall specifically note the objections taken, and the plaintiff shall in like manner, within three, days after the filing of the answer, unless longer time is given by the court, file like exceptions to any documentary evidence exhibited by the defendant, and all such exceptions shall be passed on by the court, and shall be sustained or overruled, as the law may require; and if any exception is sustained to any such evidence the same shall not be used on the trial, unless the defect for which the exception is taken is covered by amendment.” The appellant complied with the above statute by setting forth his exceptions to the deed of the State Land Commissioner. There is nothing in the statute which requires that the exceptions to the documentary evidence shall be passed upon before the trial. . Section 4806 of Kirby’s Digest provides that the deed of the State Land Commissioner shall be prima facie evidence of title to the purchaser. Section 4807 of Kirby’s Digest provides that “such deeds shall be received as evidence in any court in the State.” Strictly speaking, an exception proper to a deed relates only to defects apparent on the face of the deed. See Ward v. Sturdivant, 81 Ark. 79. The object of our law making the deeds of the State Land Commissioner prima facie evidence of title and requiring such deeds to be received as evidence in any court in ti^e State is “to relieve the grantee and those holding under him from making proof until evidence is introduced showing or tending to show that the deed conveyed no title. Scott v. Mills, 49 Ark. 266-76. Under the comparatively recent case of Wolf and Bailey v. Phillips, 107 Ark. 374, we held (quoting syllabus) : “When plaintiff, in an ejectment suit, bases his right of recovery wholly upon the invalidity of the tax sale under which the defendant claims, and alleges such invalidity in his complaint, the allegations continue to be a part of the pleadings after the answer is filed, and the complaint will be held to be a substantial compliance with section 2743 of Kirby’s Digest.” The same rule will apply to an answer of a defendant which alleges the invalidity of a deed upon which a plaintiff bases his source of title. The pleadings in this form raise an issue which call for the introduction of evidence and the proper time and place to object to evidence offered, when such is the issue, is at the trial. The court, therefore, could not by any rule for the dispatch of its business deprive the appellant of the right to introduce the testimony at the trial to prove that the appellee’s deed was void. The very issue involved under the pleadings was whether or not the title was vested in appellees ’ decedent under the deed of the State Land Commissioner. This issue could not be disposed of as a preliminary one in advance of the trial. It follows that the court erred in excluding the evidence offered by the appellant. But the appellees contend that the undisputed evidence proves that the lots in controversy were unimproved and uninclosed and that Eickhoff acquired title thereto under the act of March 18, 1899 (section 5057 of Kirby’s Digest), by the payment of the taxes for seven consecutive years under his deed which was color of title. Whether or not city lots come within the purview of the above statute, we need not and do not here decide. For, if it be conceded that such lots were in contemplation of the Legislature when it passed the act, it was a question for the jury, as we view the evidence, whether or not the lots were unimproved and unenclosed. We refrain from setting out and discussing in detail the evidence on this issue and from expressing any opinion upon its weight, for the reason that the ease must be remanded for a new trial. Suffice it to say, the court was not warranted in assuming as a matter of law that the undisputed evidence proved that the lands at the time Eickhoff obtanied his deed were unimproved and remained so during the seven consecutive years that he paid the taxes. For the errors in excluding the records offered by the appellant “attacking this tax title” and in instructing the jury to find for the plaintiffs, appellees, as to possession, the judgment is reversed and the cause will be remanded for a new trial.

McCULLOCH, C. J. This appeal is from a judgment of the circuit court of Pulaski County in two consolidated actions instituted against appellee for damages resulting from injuries, received by the appellant in one of the cases, and by appellant’s intestate in the other case, while riding on one of appellee’s freight trains. Williams, the appellant in one of the cases, was seriously injured, and G-raham, appellant’s intestate in the other case, received injuries which resulted in his death. The trial court gave a peremptory instruction in favor of appellee, and the only question before us for consideration is whether the testimony was sufficient, viewing it in the light most favorable to the rights of appellants, to warrant a verdict in their favor. Williams and G-raham were young men residing in the State of Telmessee and started on a trip to Oklahoma for the purpose of working in the harvest fields in that State. They attempted to make the trip on the railroad without paying fare, that is to say they undertook to “beat their way” to the journey’s end. They, together with others who were bent on the same mission, rode on a freight train from Memphis to1 Argenta and then walked to Hot Springs junction, which is just outside of the southern limits of the city of Little Rock, where they boarded a through freight train. The rules of the company did not permit passengers on through freight trains, but in violation of the rules, two of the brakemen allowed these young men and quite a number of others to board the train. The testimony shows that the brakemen found these young men on the train and consented for them to remain there after paying a trifling sum for permission to ride, and that they let others board the train along the route. They directed the young men to get into furniture car, which the proof 'shows was about eighteen inches wider than an ordinary car. Whenever a new man would board the car, one of the brakemen would come in and require him to pay fifty cents to ride. The car was crowded and it was a warm day in June and and the brakemen informed the men in the car that they might leave the side doors open except while they were passing through a town. About a mile east of Magazine, Arkansas, there is abridge about seventy-five feet long with an iron railing’or side structure about three feet high. The extra width of the furniture car in which the young men were riding, of course, narrowed the space between the side of the car and the structure of the bridge. Williams and Graham and another one of the young men were sitting in the door with their legs hanging down the side when the train went over the bridge at a speed of about thirty miles per hour, and their feet and legs struck against the bridge structure and the injuries heretofore mentioned were inflicted. Graham was jerked from the car and instantly killed. Williams’ leg was broken and he was otherwise injured. The testimony shows that one of the brakemen was in the car where the boys were sitting in the door about fifteen minutes before the train reached the bridge. The act of negligence set forth in each of the complaints consists of the failure of the brakemen to warn the men of the danger of sitting with their legs hanging out of the door. According to the undisputed evidence in the ease, it is a violation of the rules of the company for the trainmen to accept passengers on a through freight train, and that the men who rode on the train, including the injured parties mentioned, were aware of this fact. In other words, they knew that they had no right to ride on the train. The fact that only a trifling sum was exacted of them makes it plain that they knew that the trainmen were not acting in good faith or with authority to allow passengers to ride on the train. That being true, they were no more than trespassers, and the servants of the defendant company owed them no duty except to refrain from injuring them by any act of negligence committed after discovery of their perilous position. The servants of the company were under no legal duty to warn these trespassers of the hazards of that mode of travel, but, on the contrary, the trespassers assumed the risk of all the dangers incident to the situation. As stated by Judge Riddick in a similar case (St. Louis, Iron Mountain & Southern Ry. Co. v. Read, 76 Ark. 106), the liability of the company, if it exists at all, must rest upon the wanton and wilful act of employees after discovering the peril of the trespasser. In that case, as in this, the injured party was wrongfully riding on a through freight train, and the injuries resulted from a collision caused by the negligence of the servants of the company, but this court held that there was no liability on the part of the company for the injuries so inflicted. So, in the present case, if it be conceded that there was negligence on the part of the company in failing to provide additional space between the sides of the passing cars and the bridge structure, that was not such negligence as would render the company liable to a trespasser on the train to whom it owed no duty except, as before stated, to refrain from acts of wilful negligence after discovering that the trespasser was in danger. Under no view of the law can it be held that the company’s servant’s, under the circumstances described, owed the trespassers on the train the duty of instruction or of warning them of the dangers of the journey. The judgment of the circuit court was, therefore, correct, and the same is affirmed.

MoCULLOCH, C. J. Pursuant to the terms of Act No. 338 of the legislative session of 1915, the county court of Little River County, by order entered on May 14, 191)8, on petition of property owners, created an improvement district in that county designated as “Road Improvement District No. 6 of Little River County,” for the purpose of constructing a road running northward from Ashdown, the county site, about eleven or twelve miles. There was no appeal from said order of the county court creating the district. The road to be improved runs parallel with the line of railroad of the Kansas City Southern Railway Company and 9.7 miles of the railroad right-of-way is included in the district, as well as station property, and after the assessment of benefits was made by the board of assessors and a certificate thereof filed with the clerk of the county court pursuant to section 13 of the aforesaid statute, the date for hearing on the assessments before the county court was set for August 23, 1918, and appellant appeared in the county court for the first time and made objections to the assessment against the railroad property. The county court overruled the objections to the assessment and appellant prosecuted an appeal to the circuit court. In addition to the objections to the fairness and correctness of the assessment, appellant filed a written plea attacking the validity of the organization of the district on various grounds, viz., that the original petition for the improvement filed in the county court did not contain the signatures of a majority of the property owners; that the petition specified certain tracts of land to be embraced in the district which were omitted by the order of the county court; that the road to be improved was not a public road; that the description of the boundaries of the district set forth in the original petition were vague and uncertain, and that the notice of the hearing on the petition was not published as provided by law. There were several other objections to the validity of the order, which it is unnecessary to set forth. The plea also attacked the fairness and uniformity of the assessments. The circuit court sustained a demurrer to those paragraphs of appellant’s plea attacking the validity of the statute and the proceedings creating the district and confined the hearing entirely to the question of the correctness of the assessments. Testimony was introduced by both parties on that issue, and judgment was entered by the circuit court approving the assessments as made by the board of assessors and approved by the county court. The first contention is that the court erred in sustaining tlie demurrer to appellant’s plea attacking the validity of the district. Counsel for appellant relies on the decision of the court in the case of Lee Wilson Company v. Road Improvement District No. 1, 127 Ark. 310', where, on appeal from the assessment of benefits in a road improvement district formed under this same statute, we said: “Appellants made no attack upon the organization of the appellee district in the court below. But as the organization of the district was essential to any valid local assessments and levies, the question as to whether there was such organization was one of jurisdiction which appellants have the right to raise at any time.” Counsel for appellee rely on the decision of this court in Missouri Pacific Railroad Company v. Conway County Bridge District, 134 Ark. 292, where, under a special statute creating an improvement district and authorizing an appeal by property owners from the assessment of benefits, the court held that on such an appeal a. property owner could not attack the validity of the statute creating the district,- and that the inquiry on such appeal was confined to the ascertainment of the correctness of assessment of benefits, the property owners being left to other remedies in attacking the validity of the organi zation of the district. The latter case was followed and the samé rule applied in the case of Chicago, Rock Island & Pacific Railway Co. v. Road Improvement District No. 1 of Prairie County, Arkansas, 137 Ark. 587, 209 S. W. 725. .In that case the improvement district was created under a special statute (Acts 1913, p. 864) authorizing the creation of road improvement districts in Lonoke and Prairie Counties. That statute was similar to Act No. 338 of the session of 1915 except that it applied only to the two counties mentioned. It is contended by counsel for appellant that those cases are reconcilable with each other and that appellant’s right to attack the validity of the order creating the district is sustained under the decision in Lee Wilson & Co. v. Road Improvement District No. 1, supra, without conflicting with the decisions in the later cases which arose under special statutes. It is true, as before stated, that the two last mentioned cases arose under special statutes and that in the first of those cases the statute itself created the improvement district, but in the last case the district was created by an order of the county court and in that respect is almost, if not entirely, identical with the facts in the case of Lee Wilson & Co. v. Road Improvement District No. 1, supra. We are of the opinion that the cases are apparently in conflict and that, while the questions arose under different statutes, the principles which control are the same. In the last two cases we proceeded upon the theory that after the creation of the district there was conferred merely the privilege to appear before the board of assessors and the county court for the sole purpose of testing the correctness of the assessment of benefits and that the circuit court on appeal derived only such powers as the board of assessors and the county court has. Section 3 of Act No. 338, supra, provides that an order of the county court establishing a road improvement district “shall have the force and effect of a judgment and shall be deemed conclusive, final and binding upon all territory embraced in said district, and shall not be sub ject to collateral attack, but only to direct attack on appeal,” and that any property owner “may appeal from said judgment within thirty days by filing an affidavit for appeal, stating in said affidavit the special matter on which said appeal is taken.” And in section 13 of the same statute, providing for notice of the filing of assessments and the appearance of property owners to contest the same, the proceedings are expressly limited to “the purpose ef having any errors adjusted, or any wrongful or grievous assessment corrected.” Section 14 provides for an appeal by a property owner from an order of the county court approving or readjusting the assessments. These features of the statute place it in the same category with a special statute creating an improvement district and makes the same principle applicable as is announced by the last two cited cases of this court. These features of the statute were not called to our attention in the case of Lee Wilson & Company v. Road Improvement District No. 1, supra, and were not discussed in the opinion. The brief statement of the law in that case declared a correct principle that in all legal proceedings the question of jurisdiction may be raised at any stage, even, on appeal to this court, but we failed to take cognizance of the principle that the right to raise the question of jurisdiction at any stage is limited to the same proceeding, and not to a separate proceeding. Under the statute now under consideration the organization of the district and the proceedings for the assessment of benefits and adjustment of the same are entirely different proceedings. While the abstract principle of law was correctly announced in the case of Lee Wilson Co. v. Road Improvement District No. 1, supra, it was not applicable in that case, and after declaring it we determined that there was nothing in the record, as disclosed on appeal, to show the want of jurisdiction and we declined to disturb the proceedings on that ground. The case was reversed on the sole ground of the obvious unfairness of the assessments. After further consideration of the whole matter we reach the con elusion now that the principle announced in the two last cases (Missouri Pacific Railroad Co. v. Conway County Bridge District, supra; Chicago, Rock Island & Pacific Railway Co. v. Road Improvement District No. 1 of Prairie County, 137 Ark. 587, 209 S. W. 725, supra) is the correct one and is applicable to the present case, and so much of the language of the opinion in Lee Wilson Co. v. Road Improvement District No. 1, supra, as is in conflict with this view is disapproved. This leaves only for consideration the question of correctness and fairness of assessments. In cases of this character, where the appeal is from a judgment of the circuit court, we apply the rule that the judgment will not be disturbed if the evidence is legally sufficient to sustain the findings. St. Louis & San Francisco Rd. Co. v. Fort Smith & Van Buren Bridge District, 113 Ark. 493; Missouri Pacific Rd. Co. v. Conway County Bridge District, supra; Chicago, Rock Island & Pacific Ry. Co. v. Road Improvement District No. 1 of Prairie County, supra. This case was heard on oral evidence adduced by both parties to the controversy and the testimony is conflicting. That adduced by appellee tends to show that the assessments were fair and uniform. It would serve no useful purpose to discuss the testimony in detail, for we find it to be legally sufficient to sustain the judgment of the circuit court. One of the principal points of attack is that the assessment of benefits exceeds the cost of the improvement and that the assessment is erroneous on that account. We cannot say as a matter of law that benefits from the construction of a given improvement will not accrue to real property in excess of the cost of such improvement. The law does not thus limit the assessment of benefits, but there cannot be a collection-of funds in excess of the total cost of the improvement, including, of course, the interest on money borrowed, and all other expenses of the proceedings. Property owners cannot be compelled to contribute funds for any other purposes than those contemplated by the organization of the district and funds in excess of the amount necessary for those purposes cannot be collected, but the question of estimate of benefits in the beginning is a different one, and they are not necessarily limited to the actual amount of money to be raised. Benefits are first appraised and then taxes levied based upon those benefits to raise funds to carry out the purposes of the organization. It is contended that the evidence shows that the benefits were not assessed uniformly, in that private property was not assessed in the same proportion as railroad property. The testimony of the assessors shows that they considered all of the elements which entered into the question of benefits or enhancement of values, and we cannot say that appellant has been discriminated against in the assessment of its property, or that the fairness of the assessment's, as a whole, is not sustained by legally sufficient testimony. The judgment is, therefore, affirmed.

CROSS, J. This was an action of ejectment, brought by the appellants against the appel-lee, in the circuit court of Crittenden county, for the recovery of a tract of land, containing five hundred and forty-four acres and forty-four hundredths of an acre. At the last May term of the circuit court of that county, a motion was made on the part of the ap-pellee to dismiss this cause upon the ground that there was no law in force in this territory by which the title to real estate could be tried, and the possession recovered by action of ejectment. This motion was sustained by the court, and the cause dismissed accordingly. To this decision, the appellants by their attorney excepted, and prayed an appeal to this court The record presents but a single question, namely, whether the court below erred in sustaining the motion to dismiss upon the ground, that by the laws of this territory the action of ejectment could not be maintained. The action of ejectment is peculiar to the common law, and was invented in England during the reign of Edward II., or in the early part of that of Edward III. Adams, Eject c. 1, pp. 7, 8. On its first introduction, it was a remedy afforded a lessee for a term of years, when he had been ousted by the lessor for the recovery of his term, or the remainder of it, with damages. 3 Bl. Comm. 199. During the reign of Henry II. it was converted into a method of trying titles to the freeholds, but did not assume its fictitious form until the exile of Charles II. From the period of its first having been used in trying titles to land, up to the time last mentioned, an actual lease, entry, and ouster, which, according to its present modification, constitutes the fiction, was necessary, and without it the action could not be sustained. By a recurrence to the history of our laws, and an inquiry, first, as to the period when the common law was adopted in this country; and secondly, whether as it now stands, the action of ejectment is authorized, we shall be enabled .to arrive at a correct conclusion in regard to the question before us. In considering the first branch of the subject, it may be necessary to declare that by the treaty of cession in the year 180S, between France and the United States, the province, as it was then called, of Louisiana, was acquired; a portion of which now comprises Arkansas. At the first session of congress after the treaty, the president of the United States was authorized to take possession of the country, and a law was passed, entitled “An act erecting Louisiana into two territories, and providing for the temporary government thereof.” By this act all west of the Mississippi river, and south of latitude thirty-three north, was called the “Territory of Orleans,” and the residue the “District of Louisiana.” The same act vested in the governor and judges of the territory of Indiana the power to make all laws which they might deem conducive to the good government of the inhabitants of the district, and declared that the laws then in force in the district, not inconsistent with its provisions, should continue in force until altered, modified, or repealed. Act 1804, 8 Bior. & D. Laws, 608, 609 [2 Stat. 2S3]. The succeeding session of congress in 1805, passed a law further providing for the government of the district of Louisiana, by which the name was changed from that of “District” to that of the “Territory” of Louisiana, and a different legislative power created and vested in the governor and three, or a majority, of the judges of the territory. A provision was also inserted continuing all such laws and regulations as were in force at the time of its passage until altered, modified, or repealed. 3 Bior. & D. Laws, 659, 660 [2 Stat. 331]. That act continued in force until December, 1812, when the organic law of Missouri took effect By that law the name of the “Territory of Louisiana” was changed to that of “Missouri,” and all laws and regulations in force at the time of its passage, and not inconsistent with its provisions, were declared to be in force,until altered, modified, or repealed. In March, 1S19 [3 Stat. 493], the law was passed creating the territory of Arkansas, in the southern part of the Missouri territory, which continues in like manner all such laws and regulations as were in force at the time of its passage until modified or repealed. From this view it will be seen, that such laws and regulations as were in force at the time of the acquisition of Louisiana, were continued from time to time up to the date of our organic law in the year 1819, except such as were inconsistent with the constitution and laws of the United States, and until altered, modified, or repealed. In 1S16 the legislature of the Missouri territory passed a law, by which it Is enacted, “that the common law of England, which is of a general nature, and all statutes of the British parliament in aid of, or to supply the defects of the common law, and of a general nature and not local to that kingdom, which common law and statutes are not contrary to the laws of this territory, and not repugnant to, nor inconsistent with, the constitution and laws of the United States, shall be the rule of decision in this territory until altered or repealed by the legislature.” Geyer, Dig. 124. By that act, which is still in force, the common law of England, of a general nature, is introduced, except where it conflicts with our statutes, or is repugnant to or inconsistent with the constitution and laws of the United States; and here, perhaps, the inquiry might be closed as to the period when the common law was adopted. To prosecute it further would be rather a matter of curiosity than necessity upon the present occasion. We are induced to believe, however, from the numerous common law phrases and terms used in our statutes anterior to the passage of the law of 1816, that it must have been adopted either by statutory provision or by common consent at an earlier day. As far back as the year 1807, we find most of the common law actions mentioned in the acts of the legislature of Louisiana, such as trespass vi et armis, ejectment, case, debt, covenant; also, the terms murder, presentment, and indictment. Demurrers, general and special, are spoken of, and pleas of various kinds known to be authorized by the common law. In using these terms, and recognizing such actions and pleas, did the legislature intend those only authorized by the laws and regulations in force at the time Louisiana was acquired? If so, it is doubtful whether the laws of France or Spain should have been resorted to, to find their definitions, and the manner of proceeding in them, inasmuch as the province of Louisiana had been acquired from the latter by virtue of the treaty of San Ildefonso, in October, 1800. It would certainly be conjectural altogether to say the laws of either of these governments were intended, and to say both would be absurd. To arrive at the conclusion, then, that the legislature intended actions, pleas, and terms defined by the laws of France or Spain or both, we have first to suppose their existence, and from this hypothetical existence the deduction must be made, that the legislature intended such actions, pleas, and terms, as were never known to their laws, or the laws of one of those governments. This would be a conclusion alike inconsistent with the rules of logic and law, and the legislature never so intended it. How then, it may be asked, are we to ascertain the meaning of the legislature in speaking of such actions, pleas, and terms, as are known to be sanctioned by the rules of the common law? Certainly, by referring to the common law itself, thereby avoiding the necessity of a hypothetical existence. In corroboration of the opinion that the legislature alluded to the common law actions, pleas, and terms, is the fact, that all the proceedings had in the courts, immediately after the passage of the acts in which they are mentioned, were in accordance with the rules of the common law. The maxim, therefore, applies with great force, “contemporánea ex-positio est fortissima in lege.” The inquiry may be made, as to what has become of the laws and regulations declared to be in force by the act of congress, passed in 1804. We would answer, that many have been abolished, or superseded by our statutes, and others have shared the fate of all ancient customs, when there no longer exists any necessity for their observance. The conclusion, therefore, Is well founded, that the common law was, at least partially, adopted as far back as the year 1807, and indeed prior to that time, and it is not very material whether by common ■consent or by statute. The second branch of the subject to be considered is, whether, by the common law as it now stands, the action of ejectment is authorized. It has been contended that the act of 1816, adopting the common law, did not introduce It, because a statute was then in force, passed by the legislature of Louisiana in the year 1807, which is contrary to, and inconsistent with, that portion of the common law which relates to it. The statute alluded to is in the following words: “In all actions of ejectment, the plaintiff shall declare in his proper name, and instead of the fictitious suggestion of lease, entry, and ouster, shall state that he is legally entitled to the premises,” &c. Geyer, Dig. p. 176. The legislature, by the act of 1816, have certainly introduced no part of the common law inconsistent with statutory provisions in force at the time of its passage, and hence it is clear, that the fiction, invented, as we have shown, during the exile of Charles II., pertaining to the action of ejectment, was excluded, the act of 1807 then being in force. But this does not prove that the legislature, by the qualifications inserted in the act of 1816, intended to exclude it according to its ancient form. The argument on the part of the appellee, appears to be based upon an assumption, that the action could not, at the time of the passage of the law of 1816, be maintained, by the rules of the common law, without the fictions. This is untrue. The lessee in England, may still prosecute ejectment for the recovery of his term, where he has been ousted, without the fictitious suggestions of lease, entry, and ouster, in the same way he could have done before its enaction, and so in this country after the time of 1807. That the action of ejectment was authorized, at the time of the passage of that law, and after-wards, is as clearly indicated as it could be done without using express words for that purpose. It may be regarded as a negative statute, with an affirmative meaning. In 1823, the legislature of this territory passed an act, repealing the act of 1807, by which it evidently Intended to revive the fiction. But this does not change the matter in the slightest degree, according to the view we have taken, so far as the existence of the action itself is concerned. At the same session, and after the passage of the repealing act, just mentioned, an act was passed, regulating evidence in actions of ejectment; and if it should still be considered doubtful, as to the existence of the action under our laws, prior to 1S16, and even after-wards, that act, we think, would settle the question. It is in these words: “Be it enacted, that the final certificate of any receiver of the United States land districts, in this territory, and certificates of confirmations of Spanish claims, shall be sufficient evidence of title, to commence and prosecute any action of ejectment,” &c. This 'act clearly recognizes the existence of the action, and were we to say that it could not be sustained, we should virtually nullify the act, because, without the existence of the action, the evidence it authorizes could not be received. We are, therefore, of opinion that the action of ejectment was authorized by our laws, as far back as the year 1807; that it continued to exist without the fiction, until 1816, when the common law was adopted by positive enactment; that if it had not before existed, that act would have authorized it; that the act of 1823, repealing the act of 1807, did not afiect its existence; and if we are deceived in all these positions, the act of 1823, regulating the evidence in ejectment, alone would introduce it Judgment reversed. Note by the .Tudge: Judge Cross does not consider the question whether the fiction is authorized by the common law, as involved in the present case, and does not express an opinion on that subject.

John A. Fogleman, Justice. This case involves the liability of appellee upon a promissory note executed by him on December 21, 1959. The principal question involved is whether appellant who sued on the note was entitled to a directed verdict as a holder who had all the rights of a holder in due course. Since we agree with appellant on this point, it is unnecessary that we consider any of the other points raised. Appellee Wells purchased a bulldozer from Kern-Limerick, Inc., on or about the date the note was executed. Appellee traded another piece of equipment as part of the down payment and gave the note in question for the remainder. This note was for $2,892.36 with interest at the rate of 8% per annum until maturity and 10% per annum after maturity. The balance of the purchase price was secured by a conditional sale contract which was assigned to Associates Discount Corporation. The note to Kern-Limerick was negotiated to the First National Bank in Little Rock on December 23, 1959. The status of the bank as a holder in due course is undisputed. It was indicated on the face of the note that it was secured by a lien on the bulldozer'. The note was payable in two installments due on June 1, 1960, and December 1, 1960, respectively. Kern-Limerick was engaged in the sale of construction equipment and handled many transactions in a similar manner. This concern filed a voluntary petition in bankruptcy and was declared bankrupt on or about May 24, 1960. 'When the bank attempted to collect the note, it learned that it was not secured by a first lien on the bulldozer and that its lien was subject to the lien of the conditional sale contract. The bank then made a claim against appellant under its banker’s blanket bond on this and other notes of a similar nature. Appellant’s liability was settled by the payment of $125,169.04 and the assignment of the notes upon which the claim was recognized. It appears that the payment made represented the total of the balances due on these notes on the date of assignment. While the assignment hears no date, it is undisputed that it was made well after the date of the maturity of the last installment of the note in ojuestion. After appellee’s refusal to pay the note, appellant filed suit. At the trial, a verdict in favor of the appellee was rendered by the jury and judgment entered pursuant to this verdict. Appellant bases its contention upon Ark. Stat. Ann. § 68-158 (Repl. 1957). This is § 58 of the Negotiable Instruments Law and is applicable to this transaction. See § 10-102 of Act 185 of 1961 and Compiler’s Notes following Ark. Stat. Ann. § 85-1-101 (Add. 1961). Also notes on Ark. Stat. Ann. W 68-101 — 68-169 (Supp. 1967). It is not contended that appellant was a party to any fraud or illegality affecting the note. While we do not know of any case in which this court-has been called upon to construe this section and neither of the parties has been able to discover any, the language of the statute is clear. We do not see how it can be construed in any manner other than literally. Under a literal construction appellant was entitled to all of the rights of a holder in due course because it derived its title through the First National Bank in Little Rock. See Transbel Inv. Inc. v. Scott, 344 Pa. 544, 26 A. 2d 205 (1942); Blow v. Ammerman, 350 F. 2d 729 (D.C. Cir. 1965); Ederer v. Fisher, 183 S. 2d 39 (Fla. 1965). Appellee argues, however, that appellant is not entitled to the rights of a holder in due course because the note was taken by appellant as an unwilling purchaser by assignment without endorsement after maturity with full knowledge of the fraud practiced by the original payee upon appellee and the bank. We find no support for this position in the statutes and find an overwhelming weight of authority to the contrary. It is immaterial that the transferee of a note from a holder in due course took it after maturity [Ludlow v. Woodward, 102 N.Y.S. 647 (1907); Cormany v. Ryan, 154 Tenn. 432, 289 S.W. 497 (1926); Lanahan v. Clark, 279 Pa. 297, 123 A. 798 (1924); Toll v. Monitor Binding & Printing Co., 26 F. 2d 51 (8th Cir. 1928, apply Kansas statute); Butterworth v. Beach, 30 Wyo. 46, 215 P. 1085 (1923); Johnston v. Wolf, 118 Cal. 388, 5 P. 2d 673 (1931); Case v. Fevig, 187 Minn. 127, 244 N.W. 821 (1932); Houston v. Lundy, 45 Ga. App. 122, 163 S.E. 328 (1932); North Hollywood Mort. Co. v. North American Bond & Mortgage Co., 137 Cal. App. 180, 30 P. 2d 446 (1934); In re Canal Bank & Trust Co., 186 La. 366, 172 So. 421 (1937); City of Florence v. Anderson, 95 F. 2d 777 (4th Cir. 1938); Wheeler v. Wallace, 167 S.W. 2d 1043 (Tex. 1943)]; or without payment of value [Ferber v. Third Street Realty Co., 152 N.Y.S. 352 (1915); Toll v. Monitor Binding & Printing Co., supra; Ludloto v. Woodward, supra; Wheeler v. Wallace, supra]; or with notice of existing equities, infirmities or defenses [Ludlow v. Woodward, supra; Toll v. Monitor Binding & Printing Co., supra; Wheeler v. Wallace, supra]. It is also immaterial that the holder in due course did not endorse the note, since transfer by assignment or by mere delivery is sufficient. Smith v. Nelson Land & Cattle Co., 212 F. 56 (8th Cir. 1914, applying Kansas statute); Cormany v. Ryan, supra; Tesdahl v. Hiebert, 148 Mont. 241, 419 P. 2d 298 (1966, applying Washington law); Johnston v. Wolf, supra. There is an analogy between this case and the cases involving suits by the United States against the makers of notes acquired after default by the government from holders in due course through payment on account of Federal Housing Administration insurance of the notes. It has uniformly been held in these cases that the United States has all rights of a holder in due course under these circumstances and that the notes are not subject to any defense which the maker might assert against the original payee. See, e.g., U. S. v. O’Hara, 46 F. Supp. 780 (D.C. Mich. 1942, applying Michigan law); U. S. v. Perpignano, 86 F. Supp. 105 D.C. N.J. 1956). Since it is clear that appellant was entitled to a directed verdict, the judgment of the lower court is reversed and judgment entered here in favor of appellant in the sum of $2,892.36 the face amount of the note with interest as follows: on the face amount of the note or $2,892.36 @8% per annum from December 21, 1959, until June 1, 1960; on one-half or $1,446.18 @ 8% per annum from June 1, 1960, to December 1, 1960; on one-half or $1,446.18 @ 10% from June 1, 1960, to December 1, 1960; on the face amount @10% per annum from December 1. 1960. Judgment is also rendered against the appellee for the costs in both courts. See Waxahachie Medicine Company v. Daly, 122 Ark. 451, 183 S.W. 741.

Baker, J. Appellee, Gretchen Broyles, sued the appellant insurance company upon a $2,000 policy issued by the National Life & Accident Company insuring the life of Wayne C. Broyles who died on September 21, 1937. The policy was issued on the 19th day of April, Í93'4,and premiums were paid in quarterly installments until the maturity date of the premium falling due on April 19, 1937. That premium was not paid, but the policy did not lapse as of that date for the reason that there was a thirty-one day grace period. Before the grace period had expired, but near the time of its expiration, the mother of the insured paid to one of the agents of the company $2 to extend the time for paying the premium. A few days later, perhaps not much more than a week, if that long, she made a second $2 payment. Her statement is to the effect that the agents of the company told or advised her that by making these payments the policy could be kept in force, as she stated, for two months for each payment of $2. Later in answer to a leading question, suggesting the date, the effect of her testimony was that these two payments extended', the policy until September 30th, which was a few days after the death of the insured. There was a jury trial in this case and the jury rendered a verdict for the appellee, less the quarterly premium in controversy. The verdict and consequent judgment are challenged upon this appeal upon several grounds, the principal one of which is insufficiency of the evidence to support the verdict. It takes an analysis of this testimony to disclose its weakness in the matters which we desire to discuss. One of the insurance agents is spoken of as a superintendent or supervisor. In the brief and argument on the part of appellee it is not seriously insisted that they had the power or authority to do the things which it is alleged they did do, but it is only argued that the insurance company would be bound, if these agents were acting within the apparent scope of their authority. It was also urged that if the company held them out as having said power in connection with their representation or agency for their company it is now estopped to urge that there was some limitation or restriction upon their activities inconsistent with such representation. Appellee, also, argues that since the jury has decided these questions their verdict is final and that this court will not interfere. However sound these matters may appear from an abstract statement of them, that is beside the issues involved here. In the first place, no evidence was offered justifying a submission of the limit or extent of the power or authority of the insurance agents to a jury. It has never been the law in this jurisdiction that the authority of an agent may be proven by a third party who merely makes proof of the agents’ statements in that respect. It was so held in Gould & Co. v. Tatum, 21 Ark. 329, 333. In the case of Concordia Fire Ins. Co. v. Mitchell, 122 Ark. 357, 183 S. W. 770, it was held that it is “well settled that the existence of an agency cannot be established by proof of the acts and declarations of the agents.” To like effect is the case of Cotton v. Ingram, 114 Ark. 300, 169 S. W. 967. To the same effect is the holding in Latham v. First Nat. Bank of Ft. Smith, 92 Ark. 315, 122 S. W. 992. It was there announced: “A principal is not bound by the acts and declarations of an agent beyond the scope of his authority. A person dealing with an agent is bound to ascertain the nature and extent of his authority. No one has the right to trust to the mere presumption of authority, nor to the mere assumption of authority by the agent.” (Cases there cited.) It may be said to be improper to permit a third party to put his interpretation upon what he says the agent said or did, as proof of the agent’s authority. The only proof in this case about the extension of time for payment upon the policy, after the expiration of the grace period, is to the effect that one of the agents collected $2, that he went back later and advised Mrs. Broyles that lie thought it was a $1,000 policy and that the money had been sent to the company and that he had been sent back to collect $2 additional since the policy was for $2,000. In regard to this statement, even if we concede, as we are inclined to think we should, that Mrs. Broyles ’ statement was correct, yet we find that it is beyond dispute that the evidence shows that there can be granted an extension of an additional thirty days, after the grace period, and that grant or extension could not be made by the agents who collected the money. They remitted this money to the Fort Smith office where there was power or authority to make the proper extension. Since there is no other evidence about the right, or power, or authority to extend the payment this evidence is undisputed. From this undisputed proof, then, the only extension that could have been made was that an additional thirty days was given within which to pay this 'quarterly premium, the amount of which was $9.64. This would have carried this policy to a date not later than July 19th, and had the additional payment of $5.64 been made after the payment of the $4, the premium to carry the policy until July 19th would have been sufficient. There was no such payment. The policy lapsed. On July 19th another quarterly premium fell due. It is not urged that there was any payment of this quarterly premium due July 19th, nor that it was extended. At the expiration of the grace period, after that date, which was not later than August 19th, had premium due April 19th been paid, the premium not having been paid the policy would have lapsed. Hence, there were two periods at either of which the policy might have lapsed, We have this inconsistent proposition presented, that by the act of the agents of the company a payment of $4, which first was stated as being $2 for each two months, would have extended the policy for four months and that this four months began after, the expiration of the grace period and the grace period is determined as having expired on June 19th. The policy would have expired on September 19th, which was two days before the death of the policyholder, and even under that contention he would have had no insurance. The question, however, and the answer of the witness was to the effect that these two $2 payments would have carried the policy until September 30th, and the witness, the beneficiary in the policy, answered, “yes.” ’ It was not even argued except by inference from such answer that the insurance agents could extend beyond the two two-months periods. This is the only evidence that is argued to support the verdict. Of course, this is not substantial. In fact, it is so inconsistent with the theory upon which plaintiff, herself, was trying the suit as to be self-contradictory. It is argued that by payment of the $4 the insured escaped the responsibility of paying premiums and the company did not have a right to collect from the insured the balance of that quarterly premium $5.64, nor the next quarterly premium, maturing in July of $9.64. There is no proof in the entire record that these agents that were out soliciting insurance, sometimes collecting premium, had any power or authority to waive the payment of premiums due the insurance company. We have attempted to avoid detailed discussion of the evidence offered in this case as the most of it would tend only to prolong the matter without profit. It may be proper, however, to call attention to the fact that the policyholder in this case had at one time been an agent for this same company. He knew its method of doing business. His uncle was also an agent for the company and he testified he had seen the policyholder a Short time before he left the community to make a trip to California., that he discussed with him the proposition that he should pay his insurance premiums. The policyholder had suggested that he thought before he went away on his trip he would dispose of some property or holdings and pay up- his -premium. He thoroughly appreciated the fact that it had lapsed. • To sustain this verdict and judgment under the facts and circumstances above stated it seems that wé would have to so amend the policy as to make it one that was nonforfeitable-on account of the failure to pay premiums and as one containing such provisions' and conditions that the insured, himself, could not even voluntarily refuse to pay premiums and cause it to lapse. The express provisions of the policy are to the effect that all premiums must be paid either at the home office of the company or to an authorized agent and only upon delivery of a receipt signed by the president, vice president, or secretary and countersigned by a representative of the company. This provision contradicts the theory that soliciting and collecting agents may waive the premiums or that they may so extend the date of the payment of premiums as to amount to waivers. There is no proof that such agents had any authority to issue policies, pass upon, applications or waive conditions in policies. National Life & Accident Ins. Co. v. Davison, 187 Ark. 153, 58 S. W. 2d 691; Gordon v. New York Life Ins. Co., 187 Ark. 515, 60 S. W. 2d 907. Such agents must be treated as special agents or as having limited authority. In such cases, those who deal with such agents must determine at their own risk the extent of the agents ’ authority. The court erred in not directing a verdict because there is no evidence of any kind showing the power or authority or that the conduct of agents, even if they attempted to do what is charged, that is, to extend the policy without payment of premiums, was sufficient to prevent a lapse of the policy. The proof is to the effect that the indebtedness against this policy was such under the automatic nonforfeitable provision of the policy at the time of the lapse as to leave only $1.65 of the cash or surrender value. This amount according to the policy was to be used to purchase paid-up insurance. This paid-up insurance amounted to $5 payable to the insured at the age of 85 years or to his beneficiary at his death. The company admits this liability under the provisions of the policy, the conditions of which are not in any manner in dispute and which fixes and determines this method of settlement in case of lapse. There will, therefore, be a reversal of the judgment rendered and a judgment here for $5 for the beneficiary. This amount was tendered and the insurance company will be permitted to collect costs accruing from and after the date of the tender, costs, if any, prior to that date will be paid by the insurance company.

George Rose Smith, Justice. The two appellants were charged with rape, allegedly committed in the early morning hours of December 12, 1978, at the Wilson Sharp athletic dormitory in Fayetteville. Before the trial, which has not yet been held, the defendants filed a motion pursuant to Ark. Stat. Ann. § 41-1810.2 (Repl. 1977), asking that evidence of the proxecutrix’s prior sexual conduct with the defendants and with other persons be declared to be admissible. At the ensuing hearing, in camera, the court held admissible (a) evidence of the prosecutrix’s prior sexual relations with the defendants during the 18 months preceding the date of the offense charged and (b) evidence of the prosecutrix’s alleged sexual relations with one Bobby Duckworth on the same evening and in the same room as the alleged rape. The court’s order provided that the testimony as to item (b) might be developed by direct or cross examination of the prosecutrix, of Duckworth, and of the defendants. On this interlocutory appeal the defendants contend that three additional trial procedures should have been approved: (1) Introduction of proof of Duckworth’s prior sexual relations with the prosecutrix; (2) cross-examination of the prosecutrix about her prior sexual relations with some 15 other persons, at least four of whom were athletes; and (3) introduction in evidence of a nude picture of the prosecutrix published in 1977 in the magazine “Gallery.” The exact language of the controlling act, passed in 1977, is important to our decision. We quote Sections 1 and 2 of the act: Section 1. In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of these sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Section 2. Notwithstanding the prohibition contained in Section 1 [§ 41-1810.1], evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of such evidence is determined in the following manner: (a) A written motion shall be filed by the defendant with the Court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence of the victim’s prior sexual conduct and the purpose for which the evidence is believed relevant. (b) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the Court may for good cause permit. A written record shall be made of such in camera hearing, and shall be furnished to the Arkansas Supreme Court on appeal. If, following the hearing, the Court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the Court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence. (c) If the Court determines that some or all of the offered proof is relevant to a fact in issue, the victim shall be told of the Court’s order and given the opportunity to consult in private with the Prosecuting Attorney. If the Prosecuting Attorney is satisfied that the order substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the State may be taken in accordance with Rule 36.10(a) and (c), Arkansas Rules of Criminal Procedure. The defense may appeal such court order in like manner if such order is deemed by the defense to be prejudicial. Further proceedings in the trial court shall be stayed pending a determination of the appeal. Provided, a decision by the Arkansas Supreme Court sustaining in its entirety the order appealed shall not bar further proceedings against the defendant on the charge. [Ark. Stat. Ann. §§ 41-1810.1 and -1810.2.] It will be seen that Section 1 broadly excludes opinion evidence, reputation evidence, and evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, for all purposes. Section 2 then creates an exception to the general exclusionary rule by permitting the defendant to file a motion to be allowed to offer relevant evidence of “the victim’s prior sexual conduct.” After an in camera hearing the court is to make a written order determining what evidence is relevant to a fact in issue and has probative value outweighing its inflammatory or prejudicial nature. With the statute in mind, we turn to the appellant’s three contentions. (1) The court correctly excluded evidence of Duck-worth’s alleged prior sexual relations with the prosecutrix. We have said, in applying this same statute, that information about the prosecutrix’s complete sexual history “is usually totally irrelevant to the charge of rape.” Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978). We cannot say that the trial court erred in holding that,the mere fact that Duckworth may have had sexual relations with the prosecutrix on the same evening and in the same room as the alleged rape established the relevancy of any other relations that Duckworth may have had with her. (2) The court was right in limiting the scope of the cross examination of the prosecutrix at the forthcoming trial. The court held, properly, that she might be questioned about her prior sexual relations with the two defendants. See Brown v. State, 264 Ark. 944, 581 S.W. 2d 549 (1979). The court also held that she might be cross-examined about the incident with Duckworth that occurred almost as part of the same episode. But, again, we cannot say that the court erred in holding that the prosecutrix’s prior relations with third persons were inadmissible with respect to the central issue of whether she consented to what the State asserts to have been rape. Indeed, if that broad range of inquiry were permissible without a special showing of relevancy, the basic exclusionary rule laid down in Section 1 of the 1977 statute, with respect to proof of specific instances of prior conduct, would pretty well go by the board. The intent of the act, as we said in Duncan v. State, supra, was to protect the victim from unnecessary humiliation. (3) We also agree with the trial court’s exclusion of the published picture of the prosecutrix. The proof was that she had privately posed for a nude photograph, but she did not send it to the magazine, consent to its publication, or receive pay for it. Thus all that was actually shown was that about a year and a half before the alleged rape, when the prosecutrix was 17, she posed in the nude. The court did not abuse its discretion in holding that the probative value of the exhibit was outweighed by its inflammatory or prejudicial nature. Moreover, Section 2 of the act relates only to proof of the victim’s prior “sexual conduct,” which in turn is defined in Section 3, § 41-1810.3. Since posing in the nude for a photograph does not fall within that statutory definition of sexual conduct, we are not convinced that the act was meant to permit the introduction of such evidence. Affirmed. Harris, C.J., not participating. Byrd, J., dissents.

George Howard, Jr., Judge. On January 24, 1978, appellant entered a plea of guilty to charges of forgery and uttering a $28.00 check. He was sentenced to the Department of Correction for five years, with four years suspended, on the forgery count and was placed on probation for five years on the uttering charge. On February 5, 1979, the Prosecuting Attorney for Sebastian County filed a petition to revoke appellant’s suspended sentence and term of probation. Appellant allegedly went to the Foxfire Club, a private dub in Fort Smith, and, after having been denied admittance because he and an associate were dressed ih blue jeans, broke into the club and assaulted the manager; and that this conduct was done in violation of his probation and suspended sentence; that appellant’s associate, Jackie Queen, was a known felon. On February 8, 1979, the trial court, after conducting a revocation hearing, revoked appellant’s probation and suspended sentence and sentenced the appellant to the Department of Correction for four years on the forgery charge and ten years on the uttering count, with both sentences running concurrently. The court suspended two years of the sentence. Appellant contends that the trial court abused its discretion in revoking his prior sentence and probation; and that the imposition of the maximum sentence on the uttering count is a further abuse of the court’s discretion. In Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977), the Arkansas Supreme Court in holding that “abuse of discretion” would no longer be the standard to be used in evaluating a trial court’s finding in a revocation proceeding, stated: ... A court may revoke the probation, enter a judgment of conviction, and impose any sentence that may have been imposed originally for the offense ‘if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation.’ . . . (Emphasis added.) See also: Ark. Crim. Code § 41-1208(4) and (6) (1977 Repl.) After reviewing the record, we cannot say that the trial court’s finding that appellant had inexcusably failed to comply with the condition of his probation and suspended sentence :' r.i ■ m. cl, Ah nco ns¡i<i, w cording- ' | Api'vfvj cm nr nasi ■’ by advhed by the trim court, when appdbvy ww sniiikw, , w y. bubón and given the suspense! , >, (fence, tter» bis probation .wad suspended sentence wee. -ondMonc'd "u; bis gown fcWwdor, that appellant wi*...: ; spccted tí» livw as si good ’biding citizen and to get /¡erg with people, that appdtort must not associate with persons who hove criminal meords; ?*nd¡ that appellant was «o# to frequent '‘bust joints.” Appellant. ¿ximitted that prior io his arrival at the Foxfire Club, be ¿jad visited the Relay Station, a bar ini Fort Smith; that he left the Rebuy Station with Jackie Queen, a convicted felon, aí appiOjriUwsticly 2:00 a.m.; and-'ha? he had one “Pony ikidwexaer” beer earlier in the evening- Appellant acknowledged that he was Involved in an altercation at the Foxfire Club, hunt insisted til at he was not the aggvrjsof. I* is dear da! appellant and Jaríde Queen were seeking to enter the Foxfire Chub «ver the objections of the manager because they went: dressed in blue ¡jeans; that the altercation grew out of appellant’s efforts to gam entry into the dub; and that appellant and Jackie departed after an employee at the club ordered them away at gun point. Appellant argues that the trial court committed error In taking into considera* ion, in revoking his probation and suspended sentence, that appellant had been associating with Jackie (Queen, a convicted felon. Appellant contends that Jackie is Ids first, coonsin and that they were virtually reared in the same household .end Jackie is regarded as a member of appellant’s immediate family. Consequently, argues appellant, the condition imposed relating to appellant’s non-association wish perenne who have criminal recordé should not apply muks the circumstances existing in this case. We are not Impressed wills appellant’» argument inasmuch as it is dear that appellant and Jackie Queen, at the time that appellant received the suspended sentence and probation, were not residing in she js&mhc household and the trial murt made it crystal dear that appellant was not to associafr cfit» any person who fiad a ct ¿urinal record. Moreover, if ap^.-luat was uncertain about the application of the condition to his cousin or if the need arose where it became necessary for appellant to visit his cousin or to share accommodations, appellant could have either checked with his parole officer or the trial court for direction and guidance. Finally, appellant argues that when the trial court imposed the probation and suspended sentence, he was led to believe that in the event his probation and suspended sentence were revoked, the court would impose a sentence equal to the original suspended term and the probationary period; and for the trial court to sentence him to ten years on the uttering charge instead of five years, appellant was denied due process of law since he was not duly notified of the potential sentence to which he may be subjected. Appellant makes this argument for the first time at the appellate level. It is well recognized that an appelláte court will not consider a question raised for the first time on appeal. Hughes v. State, 246 Ark. 723, 574 S.W. 2d 888.

Oahleton Harris, Chief Justice. This is á guest liability case. On October 22, 1966, Betty Rosewarren was a passenger in a car driven by David Turner, appellant herein, the young people being out on a date. Approximately three miles north of Clarksville on State Highway 103, Turner lost control of the car, and collided ■with a vehicle belonging to Rosa Smith, Miss Rosewarren receiving severe injuries. Thereafter, William O. Rosewarren, as father and next friend of Betty, instituted suit against Turner in the Circuit Court of Johnson County, alleging injuries to his daughter, and asserting that Turner was guilty of willful and wanton negligence in the operation of his automobile, same being the proximate cause of the injuries to Betty. The case was tided on October 21, 1968. At the conclusion of the testimony on behalf of Miss Bosewarren, appellant moved for a directed verdict, the motion being denied by the court. No evidence was offered on behalf of Turner, and appellant again moved for a directed verdict, the motion again being overruled. Nine of the twelve jurors returned a verdict in favor of appellee in the sum of $15,000.00, and from the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that the evidence was insufficient on the question of willful and wanton misconduct of Turner to warrant submission of the case to the jury. The evidence relied upon by appellee to establish willful and wanton operation of the Turner automobile is as follows: Mrs. Helen Stewart, who lives near Clarksville, testified that, on the night of October 22, 1966, she drove north on Highway 103 for the purpose of going to the Woodland Church on Harmony Boad, where a Halloween party was being held. Her children were in the automobile with her. When she reached Harmony Boad, a point at which she would, if continuing on, start the ascent of a hill, she signaled a left hand turn, and about the same time an automobile, traveling south, came over the crest of the hill. “We were almost to the turnoff when a car come over the hill pretty fast, and I taken the shoulder of the road to keep it from hitting me. It was weaving.” She was unable to estimate the speed of the approaching vehicle, but said, “It wasn’t holding the lino —his line. Well, it was sort of taking the yellow line every once in a while.” Mrs. Stewart said she moved over partly to the shoulder of the road to avoid any possibility of beiug hit. The witness made her turn, went on to the church, and did not know of the occurrence of an accident until sometime later. Her daughter, Karen, testified that the car came over the hill as they were getting ready to turn off of Highway 103, and that “it was going pretty fast.” When asked what was meant by the expression, she replied, “Ob, around 85 or 80 or something.” Rosa Smith, sister-in-law of Mrs. Stewart, was also traveling the same route for the purpose of attending the Halloween party. Pier three children were in a station wagon with her, and she was behind Mrs. Stewart, a car driven by Mrs. Lula Baker being between the Stewart and Smith Ambicies. Mrs. Smith described events, as follows: “Well, I was taking my children — I haAm three —to church that night. They were having a Halloween party, and Ave Avas going out the Harmony highway, and just before Ave got to the turning, off place my sister-in-law was in front of me, and there Avas a car following her, and I Avas quite a ways back, and just as she turned her flicker lights on, this other car — he come around — you know — she passed him, and it looked like the car almost run into the back of that other car— “Q. Do you know who Avas in the car behind your sister-in-law1? “A. They said it was a Mrs. Baker. And this car come right straight at me in my lane until he got almost down to me, and when he started in my lane I throwed on my brakes and stopped so he could have time to get back over on his side of the road, and just before he got to me he got over on his side of the road, and it looked like he straightened up, and then he lost control and come right straight over in front of me and slid sideways, just like he was on ice, right into the front of my car.” Mrs. Smith said that the car was going “about as fast as it could go * * * going about 80, I imagine.” She said the car was traveling “almost that fast” when her station wagon was struck. Dobbra Smith, 15 years of age, riding with her mother, testified that she was unable to estimate the speed of the Turner vehicle. This was all of the evidence relating to the wreck itself. In addition, Mrs. Ruth Rosewarren, Betty’s mother, testified that, at the Clarksville hospital that night, she asked David what happened, and he replied, “I don’t know. I guess I’m not a very good driver.” Betty’s father, William Rosewarren, said that David told him, “I guess it’s my fault, I’m not a very good driver.” Mrs. Jewell Phillips, employed at the hospital as a nurse at the time, testified that, as she was pushing David on a stretcher around to the suture table, Betty raised up, looked at David, and said, “Oh — -no, no. I told you you couldn’t make it.” She said that David made no answer, but stated she was not qualified to say whether he was physically able to do so. Mrs. Phillips also said that she was not qualified to state whether Betty was in shock, nor would she say that the young woman was conscious. “She was screaming. She was screaming each word she said, and she was screaming constantly. She was being sutured under local anesthetic.” Betty, 18 years of age, testified with unusual and commendable frankness. With the exception of one fact, hereafter mentioned, she said that she did not remember anything that happened immediately before the accident and she only remembered that immediately after the collision, she heard screams, and suddenly realized that she was the person screaming. The witness said that she and David had been dating for about a year, and that, on the night of October 22, they were on their way to Clarksville, though they had not decided what they were going to do. She stated that David was not drinking, and all she remembered about the accident was seeing lights. “It felt like the lights were right against my face, and I shoved my hand up like this, against the windshield, to shield my face. ’ ’ She remembered nothing after being blinded by the lights, and was not able to say whether David was driving fast or slow, or why he lost control of the car. Subsequently, on redirect examination by her own attorney, she testified that David was a good driver, and had always been a good driver prior to this occasion; that there had been times when she had called him down for speeding, but he always slowed the car when she requested it. “I never had to call him down very often. He never drove that fast.” She said that she was always frightened in an automobile that was being driven fast; that David knew of this fear, and that he always honored her on that point; further, it had never been necessary to call him down for “showing off” in a car. We think the evidence falls shoi't of establishing willful and wanton negligence. It has been pointed out bv this court that, whether an automobile is being operated in such a manner as to amount to wanton and willful conduct in disregard of the rights of others, must be determined by the facts and circumstances of each particular case. Splawn, Admx. v. Wright, 198 Ark. 197, 128 S.W. 2d 248. Appellee relies upon four cases, which we will discuss, but it might be here stated that we do not consider Hint any are authority for affirmance of the present judgment. The first is Cooper v. Chapman, 226 Ark. 331, 289 S.W. 2d 686. There, the evidence showed that Cooper was driving 100 miles per hour, and Cooper admitted that one of his passengers, Mrs. Chaplain, told him he was “flying too low without wings.” Though stating that he did not know that he was traveling over 100 miles per hour at the time, Cooper did sar^ that the car would go that fast, and that he had driven it at 115 miles per hour. There was testimony that all passengers importuned Cooper to slow down. Certainly, that case is distinguishable from the instant litigation. In Tiner v. Tiner, 238 Ark. 222, 379 S.W. 2d 425, whore four children were killed, and other persons severely injured, the evidence as to willful and wanton negligence of Berlin Tiner reflected that Tiner himself stated that shortly before the collision there began a torrential rain; that he went into the rain asa“ sheet or wall of rain;” that his car skidded and “fish-tailed” on the slick asphalt road, so much so that the rear of the automobile was in front of the motor, and that visibility during this £<sheet or wall of rain” was practically nil. A witness testified that the Tiner car entered the rain at a speed of 80 miles per hour, and there was no lessening of that speed up to the time of the collision. There was also evidence that Tiner had said that he could have gone to the ditch on the road on his right side, but did not want to damage his car. Tn Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226, appellant’s automobile (a young lady being a guest in the car) was traveling at a speed of 45 miles per hour on a heavily traveled highway at a time when visibility due to fog was not more than 50 to 100 feet; nonetheless, Harkrider proceeded to try and pass a cattle truck, and was hit head on by an oncoming automobile. In Henshaw v. Henderson, 235 Ark. 130, 359 S.W. 2d 436, there was not only evidence of speed at 80 miles per hour, but evidence that the driver was drinking. In fact, one of the young ladies in the car testified that, when she left her premises to go to his car, ££he kinda stumbled once.” So — in Cooper, passengers were begging the driver to slow down, and Cooper admittedly had driven his automobile at high speeds on other occasions; also, it was established that the reason Cooper lost control of his car was the terrific speed. Here, Turner’s prior driving record was good, nor is there any evidence that anyone asked him to slow down; nor is it established that Turner lost control of the car because of willfully ■moving at a high speed. It will be noted that the other three cases all included factors that contributed to the finding of willful and wanton driving in addition to speed. In ''finer, there was a “wall of rain,” with practically no visibility. ffarlcrider, involving the effort to pass a vehicle in a dense fog, speaks for itself. And in Ilenshcno, there was evidence of drinking. Let us summarize the evidence in this case. In the first place, there is no testimony with regard to what caused Turner to lose control of his car. The automobile was apparently out of control at the time the first witness viewed it. Was it because of negligent driving? Failure of brakes? Other mechanical defect? Could he have been blinded by the lights of the oncoming cars? This last has some support in the testimony of Miss Rosewarren. The evidence of this young lady, who had been da ling appellant for about a year, and seemed entirely familiar with his driving habits, does not indicate appellant to he a driver who deliberately, intentionally, or wantonly, on October 22, performed acts that he should have known would likely result in danger to his passenger. While appellee’s witnesses (Mrs. Smith and Miss Stewart) were likely completely sincere in their estimate of Turner’s speed as 80 or 85 miles per hour, physical facts do not indicate this to be true. A photograph of the Smith car is in the record, and it certainly does not appear, from the amount of damage shown, that the Smith vehicle was struck with that much force. The proof also shows that the windshield of the Smith ear was not broken, and, though seat bolts were not being used, no one was thrown from the station wagon. We find no significance in David’s remark that he guessed he wasn’t a good driver. Here was a young man, depressed and distracted, because of the injuries to his friend, as well as to himself, who might well have felt blame because he was the driver of the car. At any rate, there are numerous persons who would not be considered good drivers, but who, nonetheless, do not drive willfully or wantonly' — just incompetently. Nor do we find great significance, under the circumstances, in the remark made by Betty as she was rolled through the hospital screaming, very likely in shock. The comment would mean but little, even if it were known that she referred to some particular circumstance. David’s failure to answer his friend, screaming with pain, likewise establishes nothing, even if he were fully aware of what she had said. Basically, because there is no showing of why the Turner automobile went out of control, we think the evidence falls short of establishing the requisite degree of negligence. Reversed and dismissed.

GriffiN Smith, C. J. We determine whether the trial court erred in instructing the jury that a release executed by appellant was binding. The controversy is referable to injuries sustained by appellant when a bus in which she was a passenger left the highway while attempting to pass a road grader and came to a stop at a sharp angle. Appellant, 72 years of age, ivas thrown to the floor and testified that she Ava s rendered unconscious. She Avas taken to the home of a niece, Mrs. W. A. Greer, near Searcy. Her physician testified she was suffering from injuries to her left arm, left chest, back, and knees; also, that she had a: nervous condition, and coughed. The accident occurred November 21, 1936 — Saturday. D. E. White, adjuster for appellee, called on Mrs. Smith that evening, and found her in bed. Mrs. Greer testified that White told appellant he would pay her $25 in settlement of any claim for damages. In response to this offer appellant replied that she did not feel like settling that night; that she did not know Avhat she’ wanted to do, and preferred to Avaid. As to White’s conduct, Mrs. Greer said: “He just asked me to let him know the next day. He thought probably she Avould be feeling better by morning and would feel like making a settlement. [On Monday] Ave wrote him a note — I wrote it. [Appellant] knew I Avas going to Avrite it. I told her I Avas fixing to write it, and what she told me to put in the letter; you know.” “Q. Did she tell you AAdiat to put in the letter? A. Yes, she told what she agreed to do — [that] she would settle for $30. Mr. White came back Monday and paid her. I signed the release for her — she made her mark. ’ ’ On cross-examination Mrs. Greer testified that the settlement Avas made Monday night after dark, and appellant “was not [suffering] as bad as she was Saturday night, but of course she wasn’t over it.” Questions asked by the court brought responses from Mrs. Greer confirmatory: that she addressed and mailed the letter to White informing him that appellant was ready to “talk settlement”; that they (witness and ap pellant) had not discussed the injuries very much “because Ave didn’t know just how it was going to turn out”; that at the time White returned he had not received the letter. Witness thought she knew what the release Avas. and thought appellant understood it. It is alleged, and there is testimony, that White told appellant and Mrs. Greer $25 was all he was authorized to pay; that this sum was the maximum allowed by the company for such injuries, and if an increased amount should be paid he would be liable for the difference. This, in substance, is the only charge of fraud upon which appellant relies. The trial court, after hearing Mrs. Greer, White, and appellant, and other witnesses, instructed that the release was binding. This conclusion was correct. St. Louis, I. M. & S. Ry Co. v. Campbell, 85 Ark. 592, 109 S. W. 539; The Gus Blass Company v. Tharp, 194 Ark. 255, 106 S. W. 2d 608; Crockett v. Missouri Pacific Railroad Co., 179 Ark. 527, 16 S. W. 2d 989; Kansas City Southern Railway Co. v. Armstrong, 115 Ark. 123, 171 S. W. 2d 123, and cases there cited. A case in point from another jurisdiction is Morris v. Seaboard Air Line Railway, 23 Georgia App. 554, 99 S. E. 133. In the Morris Case the Georgia court said: “In the case under review we are unable to see any circumstance to take the release out of the general rule. The release signed by the plaintiff was a binding contract by which he took the chances as to future development of the injuries. No circumstances of undue influence or'overreaching are shown. So far as appears from the petition, he acted freely and voluntarily in making the settlement. The consideration was a valuable and legal one, though small, and the smallness of the consideration cannot by itself furnish ground for cancellation of the release. Under any other rule than that here announced, no one could ever make a settlement and take a release with the assurance that it would not be attacked and set aside on the statement of the person who executed it that when he signed it he was mistaken as to the extent of his injuries as thereafter developed.” The judgment is affirmed.

Marian F. Penix, Judge. This case was appealed to the Arkansas Supreme Court and by that Court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3). On November 1, 1977 Lydianna Boensch entered into an alleged contract with Clint and Shirely Cornett agreeing to sell real property to the Cornetts. Mrs. Boensch, a licensed real estate agent, had listed the property with Schultz and Taylor, Inc., of Fayetteville, for.whom she worked. Another licensed agent, Gary Griffin, presented an offer and acceptance dated November 21, 1977, signed by Clint Cor-nett and Shirley Cornett, to Lydianna Boensch which she signed. The written statement described the property thus: The real property and improvements belonging to Mrs. Lydia Boensch containing all the property located south of a country road dividing the total estate, that part being between 85 and 90 acres more or less. The agreement further provided the Cornetts were to pay $37,500.00 for the property. $10,500 was to be in cash and the balance of $27,000 was to be two equal payments of $13,500, the first payment due and payable exactly (1) one year after closing date and the second payment due exactly one year after the first payment. The Cornetts paid Mrs. Boensch $5,000 of the earnest money and tendered the balance of $5,500 on November 30. Mrs. Boensch refused to accept the $5,500 and also refused to convey title to the Cornetts. The Cornetts brought suit for specific performance. Mrs. Boensch raised the affirmative defense of the Statute of Frauds. Based upon Cornetts’ complaint, exhibits, request for admissions of fact served and answered by Mrs. Boensch and the allegation there remained no genuine issue of material fact, the chancellor granted a summary judgment.for the Cornetts. The chancellor ordered Mrs. Boensch to furnish Cornetts with an abstract of title within one week from date of decree. The decree further provided if the abstract was not merchantable the Cornetts were entitled to a return of earnest money, and if it was merchantable Mrs. Boensch must convey the property to the Cornetts upon payment of the remainder of the $5,500 down payment. Mrs. Boensch appeals alleging the offer and acceptance agreement signed on November 21, 1977 is void under the Statute of Frauds. Mrs. Boensch’s reasons for reversing the summary judgment are: 1. There is no key in the description in the offer and acceptance itself from which the property can be located and identified. 2. The court erred in finding a key to the description from pleadings rather than from the contract itself. 3. Partial payment of earnest money and a willingness to continue under the contract are not sufficient partial performance to remove this transaction from the Statute of Frauds. In order to be enforceable, a contract for the sale of land must comply with the Statute of Frauds. [Ark. Stat. Ann. § 38-101]. This requires the memorandum to be in writing, to be signed by the party to be charged, and to contain all the essential terms. Reynolds v. Havens, 252 Ark. 408, 479 S.W. 2d 528 (1972). A description of the land to be conveyed is an essential term. The issue in this case is whether the description contained in the offer and acceptance is adequate. We believe it is. While extrinsic evidence may not be used to add to or change a deficient description, it may be used to decipher or make intelligible the terms of the contract. We believe the meaning of the description becomes plain and certain when the circumstances surrounding the negotiations and writing are disclosed. The circumstances demonstrate the parties had no doubt as to the piece of land being bought and sold. Extrinsic evidence can be used to clarify the description. Moore v. Exelby, 170 Ark. 908, 281 S.W. 671 (1926). If the memorandum furnishes a means by which the realty can be identified, it need not describe the property with the particularity required for deeds. The writing itself provides the key to the description. “The real property and improvements belonging to Mrs. Lydia Boensch” is the phrase which permits extrinsic evidence to be introduced to make intelligible this description. We believe the line of Kentucky cases to be persuasive on this point. In Burton v. Lafavers, 254 S.W. 2d 730 (1953), the Court of Appeals of Kentucky stated, “ . . . the description is regarded as sufficient if it identifies the property when it is read in light of the circumstances of possession or ownership and of the situation of the parties when the negotiations took place and the writing executed.” Here extrinsic evidence demonstrates Mrs. Boensch, a licensed real estate agent, owned only one piece of property. This property was divided by the Cove Creek Road in Washington County. The southern part of this property contained approximately 85 acres. The use of the admissions of fact as extrinsic evidence to explain the description was proper. We believe the memorandum satisfies the Statute of Frauds. Therefore we need not discuss the issue of partial performance. The granting of specific performance was permissible. Turning to the cross appeal, we believe the chancellor erred in forcing the Cornetts to elect their remedy prior to trial. Jurisdiction was proper in the Court of Equity. Once jurisdiction attaches, the Clean Up Doctrine permits the Chancery Court to consider all facets of the matter in controversy. Smith v. Dixon, 238 Ark. 1018, 386 S.W. 2d 244 (1965); Ashworth v. Hankins, 241 Ark. 629, 408 S.W. 2d 871 (1966). While the Cornetts may not avail themselves of both remedies, the election may be held in abeyance until it can be determined whether specific performance is available. The chancellor is directed to determine if specific performance is possible. If this remedy is no longer available, it must be determined whether damages should be awarded due to the breach of contract. Affirmed in part; Reversed in part.

David Newbern, Judge. The appellant was convicted and sentenced to six years imprisonment for possession of stolen property in violation of Ark. Stat. Ann. §41-3938 (Repl. 1977). At his trial, which took place March 8,1979, he was represented by counsel. On March 22, 1979, he filed a petition with the trial court to have the verdict set aside, alleging as one ground, that a person who had sat as a juror in a previous, unrelated case in which he was convicted had also sat as a juror in this case. On March 23, 1979, the appellant’s counsel filed a motion for a new trial, alleging that the juror in question had improperly remained silent when, on voir dire, he was asked if he knew the defendant. The motion alleged that the appellant heard the juror remark to other jurors that he had been a juror in the previous case. The remark was allegedly made while the jurors were retiring to begin their deliberations. The motion also raised the question whether an. exhibit which was identified and marked as such, but which was not “introduced” into evidence, was improperly displayed by the prosecution to the jury. The issues on this appeal are those which were raised in the motion, which was denied. First, as to the juror issue, we agree with the trial judge that the appellant has failed to raise an issue of actual or implied bias as described in Ark. Stat. Ann. §§43-1919 and 1920 (Repl. 1977), but in his motion and on this appeal, the appellant raises the more difficult question of juror misconduct. His contention is that he was effectively denied the right to challenge the juror, either for cause or peremptorily, because of the juror’s silence in response to the question whether he knew the appellant. In support of this contention, the appellant cited Colbert v. State, 156 Ark. 98, 243 S.W. 801 (1922). In that case the Arkansas Supreme Court held it was not error to refuse a new trial even though a juror who, on voir dire, had denied knowledge of the case had sat on the grand jury which returned the indictment. The appellant cites the case for the court’s statement that “the fact that [the juror] sat did not constitute a ground for a new trial, it not appearing that he imposed himself upon the panel through concealment or prevarication. ” 156 Ark. at 102. The appellant says the inverse of this statement must also be true. To reverse this case on that proposition would require us to find the juror lied in response to the question whether he “knew” the appellant. We cannot say he lied, as the question was too broad. A juror who has sat in a previous case involving the same person as defendant may not feel he “knows” the defendant. Had he been asked if he had seen the defendant or had knowledge of any facts about the defendant, he would have been obliged to speak up. The Colbert case holds that the juror’s conduct was not sufficient basis for a new trial despite his failure to admit knowledge of the facts of the very case at hand. The court there was critical of counsel’s failure to ask the proper questions on voir dire. That case seems to be strong support for the appellee’s position here. The appellant did not bring this matter to the attention of the trial court for some sixteen days after it occurred. It seems he did not even tell his lawyer about it but wrote a pro se petition which his lawyer later supplemented with his motion for new trial. The appellee suggests this is cause to suspect the appellant fabricated the story about the juror. Regardless of the state’s suspicion, we believe this failure to report the matter at the time it allegedly happened greatly weakens the appellant’s case. Johnson v. State, 252 Ark. 325, 478 S.W.2d 876 (1972). Nor do we find merit in the appellant’s second point. Here again the appellant cites a case which cannot be regarded as precedent. The case, Cummings v. State, 239 Ark. 1027, 396 S.W.2d 298 (1965), involved a conviction for possession of burglary tools. A pistol was displayed by the prosecution to the jury but not introduced into evidence. The Supreme Court said “[w]e do not reverse the case because of this point; ...” and went on to say that the pistol would probably not be admissible in the event of a retrial resulting from reversal on other grounds. In this case, there is no showing or even contention the appellant was prejudiced by the display to the jury of an antique cap and ball type shotgun which was identified by a witness as property stolen from him. There is no requirement that stolen property be introduced into evidence before a conviction for possession of it may be obtained. See, e.g., Carnal v. State, 234 Ark. 1050, 356 S.W.2d 651 (1962). Even if we found such a requirement, we would not in this case regard the failure to meet it as prejudicial error. See, McCarley v. State, 257 Ark. 119, 514 S.W.2d 391 (1974), and Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952). Affirmed.

John A. Fogleman, Justice. Appellant was convicted of selling an unregistered security in violation of Ark. Stat. Ann. <§> 67-1241 (Repl. 1966) and of operating as a broker-dealer without being registered in violation of Ark. Stat. Ann. § 67-1237 (Repl. 1966). Appellant challenges the sufficiency of the evidence to support the judgment of conviction entered by the circuit judge, who sat without a jury, by agreement. Specifically, Shepherd was charged with having-sold a security to one IT. S. Hedden. The instrument evidencing the transaction was introduced into evidence and was entitled “Assignment of Oil and Gas Lease.” By it an undivided one sixty-fourth interest of the right, title and interest of H. W. McMillan, trustee, the original lessee in a certain oil lease, was conveyed to Hedden together with all personal property used or obtained in connection therewith and not retained in said lease. The instrument recites that J. R. Shepherd, trustee, was the owner of the lease and all rights thereunder. It was not shown that Shepherd had engaged in any other such transaction at any time. It is not denied that the sale was made without registration of the lease, or any interest therein, and without Shepherd having previously registered as a broker-dealer. The word “security” as used in the Arkansas Securities Act includes a certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such title or lease. This statute is penal in nature and must be strictly construed. Under such construction, nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the defendant. Stuart v. State, 222 Ark. 102, 257 S.W. 2d 372. This instrument does not constitute a security as defined in this statute. An oil and gas lease conveys an interest in land. Osborn v. Arkansas Ter. Oil & Gas Co., 103 Ark. 175, 146 S.W. 122; Watts v. England, 168 Ark. 213, 269 S.W. 585; Shreveport-El Dorado Pipe Line Co. v. Bennett, 172 Ark. 804, 290 S.W. 929. When a strict construction is given the act and the nature of the property is considered, the sale or assignment of oil, gas or mining leases, or interests therein, is not included in the term “certificate of interest or participation in an oil, gas or mining title or lease.” See State v. Allen, 216 N. C. 621, 5 S.E. 2d 844. This language under a strict construction must be taken to mean a certificate of interest or participation in the oil or gas produced and severed from the land or in payments out of production thereof or a certificate representing an interest or participation in a lease held in the name of another. As the North Carolina court pointed out, whether the definition of securities should be amended to include a transaction such as this is a matter for the lawmaking body and not for the court. The judgment is reversed and the cause dismissed.

Mehaeey, J. This acton was instituted by appellee, Mrs. Grace Gee, against appellants, Railway Express Agency, Inc., and W. L. Hines, to recover damages for injury to Mrs. Gee. On the morning of February 24, 1938, Imon Gee, husband of appellee, had to make a business trip to Texarkana, and the appellee went with him to see Red River at Fulton while the river was at flood stage; they were in a small Ford coupe, and as they were leaving Prescott their car collided with a small truck driven by W. L. Hines, one of the appellants; neither of the cars was overturned; neither car was seriously damaged; the Gees drove away in their car, and Mrs. Gee did not see a doctor on the trip, bnt the next morning her arm was bruised and swollen about three inches above the elbow. The complaint alleged that Hines was an agent of .the Railway Express Agency, Inc., and that he negligently and carelessly drove the truck into and against the car in which appellee was riding, seriously, painfully and permanently injuring her right arm, shoulder, neck and face to her damage in the sum of $25,000. It was alleged that the driver of the truck failed to keep a lookout, failed to keep his truck under control, and operated it at a high, reckless and dangerous rate of speed. The answer of the Railway Express Agency, Inc., denied the material allegations of the complaint, and pleaded contributory negligence; and Hines also filed answer denying the material allegations and pleading contributory negligence. There was a verdict and judgment for $5,000, and the case is here on appeal. The evidence tended to show that on. the morning of February 24, 1938, the appellee, with her husband left Prescott about 9:15 o’clock at the intersection of highway 67 and East Elm street; the evidence of appellee showed that they were crossing the street properly, on the proper side, and that the truck driven by Hines approached, and that at the time Hines was looking north over his shoulder. The truck struck the car in which appellee was riding and nearly turned it over; that Hines did not check his speed before the collision; that Hines said immediately after the collision: “I didn’t see you before I hit yóu. I am sorry. Just as soon as I get through delivering this express I will come by the store and straighten it up.” Appellee went on to Fulton, and later had the car repaired at a cost of $25.50. After the wreck, witnesses noticed in the back of Hines’ truck a roll of something, looked like it might have been tires, and two boxes wrapped in brown paper; they looked like express packages. Gee did not discover that his wife was injured until while they were on the trip she complained and did not sleep any that night. The afternoon after the collision there were two black places as big as a tea-cnp on her arm; she has suffered considerably since that time; cannot do her normal housework; the injury is worse than it was a few days ago; she does part of her housework, and her husband helps her do the work; Hines was driving his car at a high, reckless and dangerous rate of speed all the time. After the collision the coupe was sitting diagonally on the highway, just across the black line in the center; the collision did not so disable the coupe as to prevent the trip, and it did not prevent the appellee from going on the trip, although she complained all the time. The appellee’s testimony showed that they slowed up when they started into the intersection, and as they slowed up to malee the turn the truck hit their car. Ap-pellee thought Hines was going to stop or - turn. The Gee car was in the intersection before the Hines truck; Mr. Hines was driving a half-ton Ford truck. When they saiv Hines coming appellee held her hand out, but he was looking north, and he hit the appellee’s car, and appellee’s car did not hit his.' Appellee testified at length about the pain and suffering caused by the injury to her arm; she does her own cooking with what little assistance her husband can render; makes up her beds, but her husband does most of the housework; Hines’ truck was going about 20 miles an hour; appellee was treated by Dr. Hesterly, and afterwards went to Little Rock to see Dr. McGill; her arm troubles her all the time, and she has to take tablets to make her rest; arm and shoulder are steadily growing worse. Beverly Johnson testified that he was not looking at the cars when the collision occurred, but the Hines car hit the Gee car; the Gee car was struck about the middle of the door; there was something in the bed of Hines’ truck; little boxes of some kind; witness heard Mr. Hines tell Mr. Gee as soon as he got through delivering express he would come over to see him; does not know what was in the boxes in the truck; does not know whether Mr. Gee signaled a left turn or not. Mr. Gee testified that he did signal a left turn as he drove into the intersection. Mrs. Emma Sampson saw the collision and stated that Gee came straight into the intersection on the right side of the street and turned south toward Hope; she saw the Hines truck coming and saw he was going to hit the Gee car; Hines was looking"back over his shoulder ; was driving fast, and Gee was not driving fast; the front of Hines’ truck hit the center of the Gee car; Hines had something in his truck which witness took to be car casings and three or four boxes wrapped in brown paper; Hines was looking north over his left shoulder, and the car was coming as fast as he could drive. Reece Marks testified that he saw Gee drive into the intersection; he got into the intersection before Hines did; the Gee car was hit about the center; saw some little boxes in Hines’ truck; two or three of them. Harvey Francis testified that he repaired the Gee car, and that the right door panel, the front and rear fenders and the running board were damaged, all on the right-hand side; the car had been struck about midship; the repair bill was $25.50. Dr. J. B. Hesterly testified that he was a practicing physician and surgeon, and that Mrs. Gee came to him in February, 1938, suffering from an injury to her right arm and shoulder; the injury to the arm was just above the elbow up to the shoulder; there was a broken blood vessel; thinks she had an injury to the radial nerve; the nerve extends up into the shoulder; an injury to this nerve could cause pain where the nerve goes; witness dressed the arm; appellee complained of pain which he attributed to pressure on the radial nerve. It is possible that scar tissue was left there which is causing the present trouble; the greater the scar tissue the greater would be the pain; attributes her pain to scar tissue resulting from the hoemotoma. Dr. Hesterly further testified that Mrs. Gee was normal and healthy in every particular with the exception of her arm, and he would naturally expect her to get better; never saw any evidence of her arm being paralyzed, nor any evidence of the loss of the functions of her arm; gave.her some acetidine to make her sleep; did not think she needed morphine; did not give her any powerful sedatives; she complained some with pain around her neck, and said she felt a kernel under her arm, hut she had no kernel under her arm; cannot say for sure whether she has a nerve injury; thinks she has an injury, but cannot be sure; thinks the scar tissue would pinch the nerve, and as long as the scar tissue is there she will have trouble; is still treating her, but she is a lot better; physicians have to go almost entirely on what the patient tells them, unless they are paralyzed, and there is no feeling; Mrs. Gee is not paralyzed and has feeling in her arm; as far as witness knows appellee told him the truth about her condition. Dr. McGill testified in substance that he examined appellee and found a hard knot on her arm; she was constantly suffering'pain; the examination revealed an injury to the radial nerve, a lump was there, the muscles were flabby, the strength of the arm diminished, and the arm and hand colder than the other arm; ordinarily the arm of a right-handed person is larger than the left arm; appellee’s left arm is larger than the right; the lump of scar tissue is about the size of a silver dollar or larger; scar tissue never absorbs; her injury is permanent; thinks her condition will get worse; atrophy is taking place; the radial nerve is being pinched by scar tissue, and it will cause paralysis if the scar tissue contracts and pinches the nerve sufficiently; she has partial paralysis now; the right arm is a quarter of an inch smaller than the left. Dr: Buchanan, a witness for the appellant, testified in substance that there was nothing to indicate paralysis of the arm, and there would be nothing about a bruise on her arm that would cause her ear to ache, and she complains of pain in her arm, neck and ear; could not tell that one of her arms was colder than the other; there was no flabbiness about her right arm; arms are the same size 'by actual measurement; a haemotoma is not a serious injury; has'never known a bruise or blow on the' outside to injure radial nerve; it is most unusual to get paralysis of any nerve in the arm; there is no scar tissue in the lady’s arm; if she had scar tissue her arm would be larger, not. smaller; Mrs. Gee does not have the appearance of suffering great and excruciating pain; she looks well and healthy; finds no evidence of paralysis or atrophy in her arm; if one had total paralysis of the radial nerve, there would be total paralysis of the arm; if there were partial paralysis of the radial nerve there would be a partial paralysis of the arm. The evidence introduced by appellants on the question of how the accident occurred, and whose negligence caused it, is in conflict with the evidence of appellee’s witnesses. Appellant Hines contends first that it is not shown by the evidence that the collision caused any injury to the appellee. Witnesses testified about the injury, and this question was submitted to the jury, and their finding is against the contention of the appellant. He contends next that the court did not instruct the jury on proximate cause. Appellant Hines requested no instruction on proximate cause, but the court did, in effect, instruct the jury on this question. Each defendant asked the court for a directed verdict, which was refused. Appellant Hines then says that the court instructed the jury orally, and sets out the oral instruction, which is quite long, and says that the court told the jury that the plaintiff claimed that she was injured, and argues that there is no evidence that Mrs. Gee was injured in the collision. We think there was ample evidence to submit this question to the jury, and its finding is conclusive here, there being substantial evidence to sustain it. Appellant Hines next contends that there is no substantial evidence that he was acting within the scope of his employment at the time of the collision. So far as appellant Hines is concerned, if his negligence caused the injury, it is wholly immaterial what his relation was with the other appellant; but the evidence shows that immediately after the injury Hines said in the presence of witnesses that as soon as he delivered his express he would come hack and see Mr. Gee. There is sufficient evidence above set ont to submit the question to the jury as to whether, at the time of the accident, Hines was acting within the scope of his employment of the express company. The' other appellant, Railway Express Agency, argues that the case should be reversed, because of the improper and prejudicial closing argument made by ap-pellee’s attorney. It then says that, in making his closing argument to the jury, the attorney for the appellee said: “You may rest assured, gentlemen of the jury, that if any one of you, or your wife or daughter should come in here and have a case against a corporation, they will accuse you of being a liar, a perjurer and a thief.” Objection was made to this argument. The court announced that he did not hear the argument, and directed the jury to consider only the law and testimony. If the trial court did not know what the attorney said, he certainly could not reprimand him, and it was the duty of the attorney objecting to the argument to tell the court what was said. He does not claim that he did that. He does claim that the court learned what was said when the motion for new trial was filed, but, of course, that was too late for the court to admonish him. The trial was over, the jury discharged, and judgment had been rendered. But if this argument by the attorney was error, it was invited error. The attorney for appellants, in the examination of Dr. Buchanan, asked this question: “Dr. Buchanan, Mr. Denman usually uses you himself when he has got an honest injury, does he not?” Although probably not intended as such by the attorney, this was an insinuation that this was not an honest injury. Lawyers in the heat of argument sometimes say things which they would not otherwise say. While the attorney may not have intended it, the statement could have been construed as charging what the attorney for the appellee said. In the examination of appellee by the attorney for appellants, appellee was asked by the attorney: “Ton tell the jury that you think that a car struck by a car flying and hit broadside will only be knocked two feet — do you tell the .jury that?” And again the attorney for appellants said, in his cross-examination of appellee: “You got your information from your attorney mainly, didn’t you?” He also asked her: “How did Dr. McGill know what part of your body to make an X-ray of?” “Why did he make a picture of your right arm instead of your left foot?” This manner of examination was doubtless the cause of the statement made by appellee’s attorney in his closing argument. If appellants ’ attorney had called attention of the court to what the attorney for appellee said, the court doubtless would have taken such steps as seemed necessary to correct the error; but certainly it would not be proper to not let the court know what the complaint was about, and then be permitted thereafter in his motion for a new trial to raise the question. There was a verdict and judgment for $5,000. The injury, as shown by the testimony, was not a severe injury. The appellee did practically all of her work after the injury, her cooking and household work, and continued to do this, although she says her arm was getting worse. A majority of this court is of the opinion that the verdict is excessive; that is, that the evidence is insufficient to support a verdict for $5,000. This court cannot set aside a verdict simply because it thinks it is excessive, unless it can say that there is no substantial evidence to sustain a verdict of that amount. The authorities on this question are discussed in McCord v. Bailey & Mills, 195 Ark. 862, 114 S. W. 2d 840. In that case the court said: “We have determined that the verdicts are excessive by at least a thousand dollars in each case, even though we consider the evidence in its most favorable light, for compensation for whatever injuries or losses were sustained by either. The evidence will not support a recovery in excess of $500 for each plaintiff. “Therefore, if the appellees will enter a remittitur so as to permit a recovery by each for only $500, the judgments so reduced will he affirmed, or be entered here for that amount. If such remittitur be not entered within fifteen days judgment's will be reversed and remanded on account of the error indicated.” Therefore, in this case a majority of the court, being of the opinion that there is no substantial evidence to sustain a verdict for $5,000, has reached the conclusion that the error may be corrected 'by permitting the appel-lee to enter a remittitur for $2,500, If such remittitur is entered within fifteen days, the judgment will be affirmed for the amount of the judgment, less the remitti-tur. If the remittitur be not filed within fifteen days, the .judgment will be reversed, and the cause remanded for new trial.

M. Steele Hays, Judge. This is an appeal of a worker’s compensation case. The Administrative Law Judge awarded benefits for medical expenses and temporary total disability for a period of ninety days while claimant was recuperating from an ulcer condition. On appeal to the Full Commission, the opinion of the Administrative Law Judge was affirmed with one Commissioner dissenting. The respondent-carrier appeals from the award of the Full Commission. The claimant is 47 years old and has been employed by Mohawk Rubber Company at Helena for some 19 or 20 years as a bead insulator operator. His stomach trouble was recognized about the middle of March of 1978. Claimant was hospitalized for approximately two weeks and was off an additional three weeks before returning to work. Claimant returned to work feeling well, but the condition flared up again, and he returned to the doctor for treatment in July. Believing his job was affecting him, claimant took three weeks of earned vacation time and felt better but when he returned to work, “job related tension” caused the ulcer to flare up. Claimant testified that the job was not the cause of his ulcer but that it did cause the condition to flare up. Claimant’s job as a bead operator was described by him as one requiring very exacting performance using a complicated machine that was often inoperative. Additionally, the entire plant was dependent on the successful operation of the machine. Claimant’s testimony was that his family life was happy and content and that aside from the plant, he knew of nothing that caused him irritation and stress. Appellant contends on appeal that there is no substantial evidence, to support the award and that claimant failed to prove causation of an injury arising from the employment. As to the substantial evidence argument, we agree with appellant that the evidence that claimant’s condition was caused by his employment is very nearly lacking in substantiality. However, while we agree with appellant and the dissenting commissioner that claimant’s testimony is of no probative value as to causation, his testimony regarding the stress and pressures of his job and its effect upon him is relevant and is of evidentiary value. Taken alone, it would fall far short of meeting the quantum of proof required, even in the worker’s compensation cases, but it is not alone, for there is the testimony of Dr. James R. Rasch, a physician selected by the appellant sol.ely for the purpose of examining the claimant, and it supplies the degree of medical opinion to support the award. Appellant argues that Dr. Rasch’s testimony fails to state that claimant’s condition was work related to a “reasonable medical certainty,” but it is clear from a careful reading of Dr. R^sch’s testimony in its entirety .that he attributes claimant’s condition to his employment. Dr. Rasch is a specialist in internal medicine and obviously familiar with peptic ulcer disease and its etiology. Speaking generally of ulcer disease, Dr. Rasch .stated: “There are a number of factors that undoubtedly contribute to ulcer diseases, certainly stress is a significant factor. We know there is a definite association between the emotional center and the gastrointestinal tract in particular, peptic ulcer disease. (Portion omitted) . . . but we feel that this is a big relationship between environmental factors and stress and this is something that is difficult to determine objectively. But, it is definite. ” Speaking specifically of claimant, Dr. Rasch stated: Q. Doctor, in your reports you give a possibility of several causes. It’s not your opinion that the work is the only cause, is it. A. That would be the only cause that I could put my finger on. Obviously there was something in the work situation, that caused him enough emotional strain that his ulcer reactivated. If there were other factors, we couldn’t identify them, as I specifically tried to identify circumstances and his family ties, his family life circumstances with respect to his finances, anything I might be able to put my finger on, that would be contributory and I couldn’t get any leads. I think it also was, that I mentioned when his physician recommended that he stay off from work, that he healed up. Later, Dr. Rasch stated: Q. I believe you said that job related stress and strain is a very definite causal connection . . . in peptic ulcers. Is that not true. Is that the way I interpret it to be correct. A. Right, I believe there is. Q. Speaking in this specific case, is this your feeling that the stress and the strain that you found him to relate to his job was a causal connection with regard to the ulcers that he had. A. As I wrote in the comments, most likely. Additionally, Dr. Rasch’s viewpoint is supported by another medical opinion, as the record contains a written report from Dr. J. H. Barrow of Helena dated July 13,1978, which, though brief, reflects an opinion on his part that claimant had a partial obstruction due to an ulcer which was the result of work related tension. We find this evidence to be sufficient. It might be added that if there were unresolved doubts as to causation, it seems clear that the evidence present in this record would suffice as a matter of aggravation. It has been said repeatedly in the decisions of this state that the law does not require that a claimant be compelled to offer proof to a mathematical certainty. Herron Lumber Company v. Neal, 205 Ark. 1098 (1943). In Neal the court said: The rule as to the quantum of proof necessary to sustain an award in a case of this kind is thus expressed in 71 C.J.S. 1087: In determining the sufficiency of evidence, doubts should be resolved in favor of claimant, and the evidence should be reasonably and liberally construed in his favor. That approach to worker’s compensation cases is firmly established in this state. Hixson Coal Company v. Furstenberg, 225 Ark. 568, 284 S.W. 2d 120 (1955); American Casualty Company v. Jones, 224 Ark. 731, 276 S.W. 2d 41 (1955). Appellant argues that there is an absence here of a specific traumatic incident to which claimant’s ulcerated condition could have been found as related in a natural and continuous sequence of events. It is true that a number of jurisdictions have held that to be compensable, an injury must have occurred either with suddenness, or as a result of an isolated episode or trauma, and there is a lack of uniformity in decisions dealing with this issue. 99 C.J.S. Workmen’s Compensation 165, et seq. However, Arkansas has taken the more liberal route in this regard, Murch-Jarvis Company Inc. v. Townsend, 209 Ark. 956, 193 S.W. 2d 310 (1946), and has adhered to it faithfully in the cases following Murch-Jarvis [See Batesville White Lime Company v. Bell, 212 Ark. 12 (1947); Triebisch v. Athletic Mining & Smelting Compnay, 218 Ark. 379 (1951); Scobey, Adm. v. Southern Lumber Company, 218 Ark. 671 (1951); Stanhouse & Sons, Inc. v. Simms, 224 Ark. 861 (1954).] In Murch-J arvis, the claim arose from the gradual inhalation of dust and fumes with resulting bronchial problems. The respondent argued that claimant did not suffer an accidental injury because no definite date or occasion could be fixed as to when the aggravation occurred, citing Professor Schneider, Vol. 4, Perm. Ed., p. 387 (“Diversity of opinion exists as to what constitutes the customarily required definite time and place of an accident. On this question expressions of the courts may vary from the statement that accidents do not happen all day to decisions to the effect that it may require as much as six months for an accident to culminate in an injury. A reasonably definite time is all that is required.”) The court held that the condition was accidental within the Arkansas Workers’ Compensation Act. In Batesville White Lumber Company, the claimant was upheld based on breathing in dust over a period of years. The opinion quoted with favor the case of McNuley v. Carolina Asbetos Company, 206 N.C. 568, 174 S.E. 509, in which pulmonary diseases followed five months exposure to asbestos dust. In Scobey, supra, the claimant’s death was shown to be the result of carcinoma of the lungs attributable, according to some testimony, to breathing in emery dust. The court said that because it took the cancer a year and a half to kill claimant does not make it any less an accident. Finally, in Stanhouse, supra, claimant suffered from emphysema of the chest, gradually acquired from work conditions. In upholding an award of compensation, the court commented: In construing the Workmen’s Compensation Act, our cases are precise to the point that in this jurisdiction we do not require an injured workman to point specifically to a single incident before he can be heard before the Commission or our Courts. We have long adhered to the rule that an accidental injury may stem not only form a specific incident dr a single impact, but also may result by a continuation of irritation upon some part of the body. For the reasons stated above we find that there is substantial evidence that claimant sustained an accidental injury and, therefore, we affirm the Commission’s holding.

John I. Purtle, Justice. Appellants, a domestic corporation and its surety on a performance bond, a foreign corporation, were sued by a subcontractor of the domestic corporation on a contract arising out of the construction of a highway in Lawrence County, Arkansas. Both appellants were found liable on the subcontractor’s claim and were assessed a penalty, interest and attorney’s fee. Appellants contested venue and applicability of the penalty, interest and attorney’s fee statute from the beginning. Appellants contend on appeal that the trial court erred in fixing venue in Lawrence County and in applying the penalty statute to the amount recovered in this case. We agree with the learned trial judge that Lawrence County was the proper venue and that he correctly applied the penalty, interest and attorney’s fee statute. Ray Ross does not question the ruling on interest, penalty and attorney’s fee. Ray Ross Construction Co., Inc. is a domestic corporation with its principal place of business in Crittenden County, Arkansas. American Insurance Company is a California corporation authorized to transact insurance and bonding business in the state of Arkansas. American became surety on a construction performance bond for Ray Ross on August 14, 1976. Eugene Raney, appellee, contracted with Ross to haul gravel to a job site in Lawrence County. American Insurance Company filed a copy of its surety bond in Lawrence County where the work was being done. Raney and Ross subsequently disagreed about the terms of the contract and it was terminated. Raney made demand on Ross for $10,309.87, which he alleged represented the amount due for hauling up to the date of termination of the contract. Ross attempted to compromise the claim but Raney stood fast. Raney filed suit against Ross and American, as surety on the bond, in the circuit court of Lawrence County for the amount of $10,309.87. He sought the penalty, interest and attorney’s fee in the event the amount was not paid within 20 days. Included in this suit was a prayer for $3,824.69 for damages caused by breach of contract by Ross. Both appellants made a special appearance for the purpose of questioning venue. The court overruled the motion and without waiver the appellants answered. The same attorney represented Ross and American. At the trial the matter was submitted upon interrogatories and the jury awarded Raney the amount of $10,309.87 on the account and denied him anything for breach of contract damages. The interrogatories on these two items of damages were submitted separately. Based upon the interrogatories by the jury awarding Raney the full amount of $10,309.87, which he claimed due on the contract, the court added interest in the amount of $1,288.72, penalty in the amount of $1,237.17 and attorney’s fee in the amount of $1,500. The matter of venue in this case is a particularly troublesome one. We agree with the appellants that the general venue statutes, Ark. Stat. Ann. §§ 27-613, 27-614, 27-615, 27-621 and 27-622 (Repl. 1966), were not followed in this case. Therefore, we look to the only statutes which we think could give rise to venue in Lawrence County. Ark. Stat. Ann. § 66-2218 (Repl. 1966) states in part as follows: Each foreign insurer applying for a certificate of authority to transact business in Arkansas and every domestic reciprocal insurer shall file with the Commissioner an appointment of the Commissioner and his successor’s in office, on a form as furnished by the Commissioner, as its attorney to receive service of legal process against it in this State. . . . Ark. Stat. Ann. § 66-3234 (1) (Repl. 1966) states in part as follows: (1) An action brought in this State by or in behalf of the insured or beneficiary against an insurer as to a loss occurring or benefits or rights provided under an insurance policy or annuity contract shall be brought in either: (a) The county in which the loss occurred, ... (b) The county of the insured’s residence at the time of the loss... . Before deciding the question on venue in this case we first discuss the matter of penalty, interest and attorney’s fee. Ark. Stat. Ann. § 66-3238 (Repl. 1966) states in part as follows: In all cases where loss occurs and the cargo fire, marine casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such person, firm, corporation and/or association shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve per cent (12) damages upon the amount of such loss, together with all reasonable attorneys’s fees for the prosecution and collection of said loss; . . . We believe the case of Vern Barnett Construction Co., Inc., v. J. A. Hadley Const. Co., 254 Ark. 866, 496 S.W. 2d 446 (1973), is controlling in this situation. In Barnett we stated: We note that this statute has been applied to sureties on contractor’s bonds by the Eighth Circuit Court of Appeals in Trinity Universal Ins. Company v. Smithwick, 222 F. 2d 16 and Reid v. Miles Construction Corp., 307 F. 2d 214, where the sureties contended the proper demand to justify allowance of penalty and attorneys’ fees had not been made. In holding the provisions of Ark. Stat. Ann. § 66-3238 (Repl. 1966) applicable in this case, we do not ignore the argument of appellants that American did not resist the amount of the claim and that the only reason they did not pay was because their insured, Ross, refused to agree to such payment. Likewise, we do not ignore appellants’ argument that American just went along with Ross and never really resisted payment of the claim. We disagree with the contention that such action by appellants did not contest the claim because the same attorney represented American and Ross. It cannot be disputed that the attorney vigorously resisted the claim. We cannot say that at any one time he was acting solely for one client instead of the other. We also notice that Ross admitted, in response to the complaint, it owed Raney the sum of $10,309.87. If it was admitted by Ross that this amount was owed, we cannot understand how they can refuse to pay it and still contend it was unresisted. Therefore, we agree that the trial court properly applied the provisions of Ark. Stat. Ann. § 66-3238 (Repl. 1966) in this case. We return to the question of venue at this time. You will note that we held the penalty statute to apply and the basic reason for this is that it specifically mentioned “surety” in the statute. This term was used along with all the other terms relating to insurance. Now we turn back to the provisions of Ark. Stat. Ann. § 66-3234 (Repl. 1966). This statute applied to domestic as well as foreign corporations. In 1966 we considered the case of Pacific Insurance Co. of New York v. Droddy, 240 Ark. 535, 400 S.W. 2d 673 (1966), and there in an action by a subcontractor against the surety on the contractor’s performance bond held that venue lay in the county of the residence of the beneficiary of the bond, the subcontractor. There we may have seemed equivocal as to whether or not venue should be controlled by Ark. Stat. Ann. § 27-608 (Repl. 1966) or Ark. Stat. Ann. § 66-3234 (Repl. 1966). We expressed a hope that the General Assembly would see fit to definitely fix the venue in actions by beneficiaries on performance bonds. However, the General Assembly did not change the venue statute. Since we relied on Ark. Stat. Ann. § 66-3234 (Repl. 1966) in Droddy, we now hold that the residence of the beneficiary on the surety bond and the county in which the loss occurred are sufficient to es tablish venue on a subcontractor’s complaint against a surety. We do not ignore Cavette v. Ford Motor Credit Co., 260 Ark. 874, 545 S.W. 2d 612 (1977), where we stated that venue could not be had against a foreign corporation pursuant to Ark. Stat. Ann. § 27-608 (Kept 1966). Thus it appears that Cavette made it clear that venue in Droddy was based upon Ark. Stat. Ann. § 66-3234 (Repl. 1966). For the above reasons we are of the opinion that Lawrence County was the proper venue when the action was brought in that county of the residence of the beneficiary and the place of the loss. Affirmed. We agree. Harris, C.J., Byrd and Holt, JJ.

Frank Holt, Justice. This case relates to an employee’s scope of employment during a lunch hour. Appellant appeals from a judgment based upon a verdict of the jury holding it liable to the appellees for the negligence of appellant’s employee in an intersection accident. The jury found that at the time of the accident the employee, Mrs. Helen Christner, was acting within the scope of her employment. For reversal appellant contends that there is no substantial evidence that at the time of the accident its employee was acting within the scope of her employment. We think appellant is correct. On appeal we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and affirm the judgment of the trial court if there is any substantial evidence to support the verdict. St. Louis Southwestern Railway Co. v. Holwerk, 204 Ark. 587, 163 S.W. 2d 175. When an employee is engaged in performing services for his employer, the employer is liable for his actions until the servant turns aside from the master’s business. In Lindley v. McKay, 201 Ark. 675, 146 S.W. 2d 545 (1941), we reaffirmed this well settled rule as stated in Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S.W. 439 (1910): í í * * * And if the servant steps aside from the master’s business to do an independent act of his own and not connected with his master’s business, then the relation of master and servant is for such tune, however short, suspended; * * V’ To the same effect, see Healey v. Cockrill, 133 Ark. 327, 202 S.W. 229 (1918), and Van Dalsen v. Inman, 238 Ark. 237, 379 S.W. 2d 261 (1964). With this principle in mind, we review the evidence with particular reference to Van Dalsen, which we consider controlling in the case at bar. The employee was in charge of the bookkeeping for appellant’s Little Rock office at 1515 West Seventh Street. She signed the checks, made the payroll and was in charge of the office when her supervisor was out of the office. One of her duties was to make deposits in the appellant’s bank account which was in her name. Most of the time she made the deposit by mail. However, with her employer’s knowledge, she would sometimes drive downtown in her own car and make the deposit. She kept the deposit slips in the office until the end of the month when she mailed them to the home office. She took her lunch hour whenever she desired. Her employment did not require her to travel. She provided her own means of transportation, and did not receive any form of reimbursement when she used her car in making bank deposits for the company. She was paid on a monthly basis. On the day of the accident, appellant’s employee left the office about 11:30 a.m. in her own automobile. She drove downtown to her bank where she deposited her salary check. From there she went to another bank where she made a deposit in appellant’s account and received a copy of the deposit slip. The employee testified that from this bank she intended to proceed to Mitchell School at Roosevelt and Battery Streets, take her son home, and then return to work. Her child, being in the first grade, was dismissed at 12 o’clock, and since it was raining, she did not want him to walk home. According to Mrs. Oliristner, as she approached the intersection of Cumberland and Capitol Avenue, she debated whether to turn there but decided instead to continue south on Cumberland to Eighth Street, turn west on Eighth and proceed to Broadway, then out Broadway to Roosevelt and on to Battery where Mitchell School is located, thence to her home which was nearby at Roose velt and Marshall. However, her plan was interrupted when she collided with a taxicab at the intersection of Cumberland and East Capitol. Her immediate supervisor, who was out of the office on the day of the mishap, testified that the only deposits Mrs. Christner was required to make were by mail and that for this purpose she was furnished with envelopes and mail deposit slips. He was aware that on occasion she deposited company funds while on her lunch hour. However, she was not required to do so. On cross-examination Mrs. Christner stated that she left the office in her car to make her own deposit and to pick up her son at school, and since she was going to be downtown, she decided to make the company’s deposit also. Further, she testified: “Q. So that you had been to Union Bank and deposited your check, dropped by "Worthen and made the company’s deposit and was there anything else to do for the company at all? A. No, sir. Q. Then you had completed whatever you had done for the company, whatever you had to do for the company was done? A. That is right. Q. And you were on your way then to Mitchell School? A. Tes, sir.” The burden of proof was upon appellees to offer some substantial evidence that at the time of the accident appellant’s employee was acting within the scope of her employment. When the evidence is viewed most favorably to the appellees, we are of the view that at the time of Hie accident the appellant’s employee, dur ing her lunch hour, had turned her attention to and was solely engaged in her own personal affairs — not those of her master’s. During this period of time the relationship of master and servant was suspended and the appellant cannot be responsible for her actions. Reversed and dismissed. George Rose Smith, J., concurs. Harris, C.J., dissents.

GtripfiN Smith, €. J. Appellee’s judgment for $3,000' was rendered on a jury’s verdict finding that suck amount should be paid to compensate personal injuries appellee-sustained when she hoarded appellant’s bus. The six assignments of errors urged are: (1) That no liability was shown, and therefore a verdict should have been instructed for the defendant. (2) That defendant’s motion for a continuance should have been granted. (3) That the court arbitrarily limited the defendant to thirty minutes within which to produce witnesses for examination, such witnesses or affiants having-executed affidavits to the effect that defendant could not secure a fair trial in Clark county. (4) That the court arbitrarily refused to allow defendant’s attorneys to-examine the jury panel. (5) That defendant was prejudiced by the court’s announcement that “We are going-to finish this trial today or tonight, and you can act accordingly.” (6) That defendant’s supplemental motion, for a new trial should have been granted. We are of the opinion that there was sufficient evidence to go to the jury on the question of negligence. Assignments 2, 3, -5, and 6 will not be discussed because-the judgment must be reversed on the fourth, assign ment — “Tbe court arbitrarily refused to allow defendant’s attorneys to examine tbe jury panel.” Tbe bill of exceptions shows tbe following proceedings: ■ “The Court: Gentlemen, are any of you witnesses in this case? (No answer.) The Court: Do you know anything at all about tbe facts in this case? (No answer.) The Court : Have you formed or expressed an opinion as to tbe merits of this case? (No answer.) The Court: Are any of you related by blood or marriage or by any existing contract with tbe plaintiff, Mrs. Earl Johnson, or with tbe defendant, Missouri Pacific Transportation Company? (No answer.) The Court: Gentlemen, have you any bias or prejudice for or against either party? (No answer.) The Court: Is there anything at all in your minds that would binder you in any manner or degree in fairly arriving at a fair and impartial verdict in this case? (No answer.) The Court: Is there any reason at all, if selected on this jury, why you could not do equal justice to either side? (No answer.) “Mr. Huie (one of tbe attorneys for defendant): I would' like tbe privilege of examining each juror, individually. The Court: That will be denied. Tbe court will examine them on any question you want. (Tbe defendant objected to tbe above ruling of tbe court and at tbe time asked that its exceptions be noted of record, which was accordingly done). ‘ ‘ The Court : Do you care to have tbe court ask any questions ? Mr. Huie : Will tbe court ask the jury as a whole, or individually, if they are under any obligation to tbe attorneys for the plaintiff? The Court: This is addressed to each of tbe jury: Are any of you under any obligations to either of the attorneys for tbe plaintiff, Mr. J. H. Lookadoo or Mr. G. W. Lookadoo? (No answer). “Mr. Huie: I would like to ask if either of tbe attorneys for tbe plaintiff has befriended any one of tbe jurors in such a nature that be would feel more kindly in this case toward rendering a decision in favor of one who bad represented him. The Court: Gentlemen of the jury, is there any personal relation, or has there been, between any of yon and the attorneys for the plaintiff that would cause you to lean or be baised, or-have, a leaning of .mind toward that side of the ease? (Addressing; Mr. Huie): Does that meet it? Mr. Huie : Yes, that is. it in substance. (No answer).. : ■ “Mr. Huie : I would like to ask this question: How/ many of the jurors have served in cases against corporations in the last two or three years and where-fhere was. always rendered a verdict in favor of the plaintiff against, a corporation? The Court: I will not ask a question, like that. The records are open here, and you can look, at the records. (Objection and exceptions). ■ “Mr. Huie: Ask whether or not, where the plaintiff is a private individual and the defendant is a corporation, they would lean more toward the side, of the individual than they would toward the corporation. The-, Court : Gentlemen of the jury, the plaintiff is a natural, person: that is, just a person. The defendant is a corporation: a person created by law. Now, this is a suit between a person and a corporation. Can you, and will, you, if accepted on this .jury, try the case and render to-both parties, regardless of the character of the entity, the-same fair and impartial trial and give each side the same-consideration as you would if both were corporations, or-both were natural persons? (No answer). “Mr. Huie: Ask whether or not any of the jurors: have been, or are, under any obligation to either one of' the attorneys for the plaintiff? The Court: Well, Gentlemen, I will ask if any of you have ever been obligated to either of the attorneys for the plaintiff in this case, or-if there is anything in your mind that would prevent you., in any manner or degree from rendering fair justice in. this case? You are all sworn to try the case according to the law and evidence: are you willing to do that? The: Court: They say they are. Is that all? Is that all? Is. there anything else? (No response). Appellee relies upon § 16 of Initiated Act No. 3,. which appears as § 3996 of Pope’s Digest, to. support the-conduct of the trial court in refusing to permit attorneys-, for the defendant to interrogate members of the jury panel. The section of the Act is : “In all cases, both civil and criminal, the court shall examine all prospective jurors under oath upon all matters set forth in the statutes as disqualifications. Other questions may be asked by the court, or by the attorneys in the case, in the discretion of the court. ” In Baldwin et al., Trustee Missouri Pacific Railroad Company v. Hunnicutt, (supplemental opinion on rehearing, pages 445-446) there is a discussion of the contention made by counsel for appellee that they “did not know of any provision of law in this state that entitles either party to a civil suit to have each proposed juror stand and be separately interrogated by counsel.” The opinion' directs attention to § 6380 of Crawford & Moses ’ Digest, now § 8342 of Pope’s Digest, and says: “This court has recognized the right of litigants in civil cases to examine the jurors separately.” St. L., I. M. & S. R. Co. v. Aiken. Trial of the cause upon which appeal in the Hunnicutt Case was predicated occurred prior to adoption of Initiated Act No. 3. We said in that case: “The discretion which rests in the trial court does not relate to the right to examine jurors separately, but only to the extent of the examination of each separate juror. ’ ’ Otherwise expressed, it was meant that the trial court did not have the right to absolutely deny separate examinations, but the extent to which such examinations might be carried was a matter resting within the sound discretion of the court. The opinion in the Hunnicutt Case quotes with approval the following declaration of the law, as construed by Corpus Juris: “The extent to which parties should be allowed to go in examining jurors as to their qualifications cannot well be governed by any fixed rules. The examination is conducted under the supervision and direction of the trial court, and the nature and extent of the examination and what questions may or may not be answered must necessarily be left largely to the sound discretion of the court, the exercise of which will not he interfered with unless clearly abused. In practice, considerable latitude is and generally ought to be indulged; the questions ought to be confined to matters directly affecting the legal qualifications of the juror, and all questions ought to be allowed which are pertinent .to test the juror's competency. But such examination ought not to be permitted to take an indefinitely wide range concerning merely collateral matters. . .” The last paragraph of the Hunnicutt opinion (page 447) states: “We are, therefore, of the opinion that litigants in civil cases, as well as in criminal cases, have the right to examine the jurors separately in order to determine whether such jurors are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject of course to the right of the court to control the extent of such examination, acting in its sound discretion.” We do not think it was the purpose of Initiated Act No. 3 to change this rule. There is no express language to that effect, nor is such purpose to be implied from the phraseology. The first sentence of § 16 affirmatively imposes upon the trial court the duty of examining prospective jurors “upon all matters set forth in the statutes as disqualifications.” This'the court shall do, without suggestion from counsel on either side of the controversy, and the juror must respond, even though silence may be construed to denote acquiescence. But— “Further questions may be asked by the court, or by attorneys in the case, in the discretion of the court.” All trial lawyers, and all students of the science of jurisprudence, know that general questions directed to the jury panel, or to individual jurors, by a judge who at the beginning of the trial has no special information regarding the issues, or the relationship of the parties, or the attending circumstances,- sometimes fail to elicit answers which may cause even the most conscientious juror to reveal an existing prejudicial status. ' What are the further questions that may be asked by the court, or by the attorneys in the case? The answer is that they include any. pertinent inquiry respectfully addressed through which qualification, may be determined, or by which counsel, regardless of the .juror’s qualification, may secure information upon which to predicate peremptory challenge.' Discretion of the court, to which reference' is made in the last sentence of § 16 of the initiated Act, goes to the proposition of curbing improper questioning. It does not invest trial courts with an arbitrary, all-powerful authority to transform discretion into prohibition'; nor does it require that in the process of ascertaining the desired facts counsel must utilize the court as a conduit through which communication must be megaphoned to jurymen by way of the dais. There is nothing in the initiated Act that changes the practical application of rules so well known to the practice. . . • Some of the questions asked by counsel for appellant were improper and the court correctly excluded them. For example, it was. not essential that the defendant should know “how many of the jurors had served in cases against corporations in the last two or three years, where there was always.rendered, a verdiet in favor of the- plaintiff against -a corporation. ’ ’ Yet, before this question was asked, the- court had definitely declined to permit the defendant’s - attorney (Mr. Huie) to examine each juror individually. For this error the judgment is reversed. The cause is remanded for a new trial. 192 Ark. 441, 93 S. W. 2d 131, 192 Ark. 445, 93 S. W. 2d 133. 100 Ark. 437, 140 S. W. 698. Corpus Juris, v. 35, p. 389, § 439.

James H. Pilkinton, Judge. This is essentially a suit for specific performance of an alleged contract. It is undisputed that Willis Fuller and wife listed their property for sale with J. M. Collins and Company. The realtor found a buyer for the property and William H. Norwood made a conditional offer for the Fuller property which was accepted. The purchaser was unable, however, to obtain a loan as required. The original offer and acceptance was then replaced by a counter offer made by the Fullers to Norwood on April 12, 1979. The trial court found that the counter offer was accepted by the purchaser on April 13,' 1977. Plaintiff Norwood fulfilled or offered to fulfill all conditions of the counter offer and has been ready, willing and able to close the transaction since April 1977. The court specifically found that defendants Willis Fuller and wife had failed to perform their part of the contract without justification and, under the circumstances, Norwood was entitled to specific performance of the contract. The trial court also found Norwood was entitled to damages of $50.00 per month for loss of rents since June 10, 1977. A decree was entered on these findings and appellants Fullers then lodged this appeal in the Supreme Court of Arkansas. The case has been assigned by that court to the Arkansas Court of Appeals under Rule 29 (3). 1. Appellant first contends the trial court erred in ordering specific performance. It is argued that this question was not raised below. We find no merit in this argument. At the conclusion of all the evidence, the following occurred: MR. PURTLE: Your Honor, we make a motion the pleadings be conformed to the truth. THE COURT: You are asking for specific performance? MR. PURTLE: Yes. THE COURT: That will be granted. . . . The issue was certainly raised and passed on below. 2. It is next claimed the court erred in finding the appellants had signed the counter offer. The Chancellor made a specific finding on this question, and we quote his exact words: Just glancing at them (the signatures) it is rather obvious that they are the signatures that all three of them — or that all three documents bear the signatures of Mr. and' Mrs. Fuller. But there is proof— there is overwhelming proof here, beyond a preponderance of the evidence, that the Fullers did sign all of these documents; that is, the listing, the Offer and Acceptance, and the counter offer. And for whatever reason, at a later date, they obviously changed their minds and wished to get out of this contract. Consequently, plaintiffs’ complaint for specific performance will be granted. The parties will go forward immediately with the closing of this transaction and I am going to allow damages of fifty dollars per month as the reasonable rental value of this property from the 10th day of June 1977 up until the time that this transaction is closed forthwith. . . . For the record, there, is one other thing; there has been an allegation of forgery made in this; the pleadings in this case, and also on the witness stand. Obviously, somebody is not truthful under oath, and for whatever it is worth, I think it is something that perhaps should be turned over to the prosecuting attorney’s office, because somebody is guilty of perjury in this case. The learned Chancellor was correct. The evidence is more than sufficient to support the finding that Mr. and Mrs. Fuller both signed the counter offer. The Chancellor was also justified in his observation that perjury cannot be tolerated. Judges and lawyers of experience recognize that in most cases application of the law is not difficult provided the court can first determine what the true facts are in the case before them. Behind most miscarriages of justice, when such an unfortunate result does ensue, there are usually one or more lying witnesses who have prostituted the search for truth in that particular case. Fortunately for all concerned, including the public, most judges — like the Chancellor who tried the case now before us — can spot such untrue testimony when it pops up. Perhaps the bench and bar have been too lax, however, in condeming perjury; and in seeing that it is punished. Appellants alleged forgery of their names on the counter offer as a defense. Therefore, they carried the burden of proof on this point. We are compelled to conclude, as the Chancellor did, that appellants did not sustain the burden of proving this allegation by a preponderance of the evidence. Kennedy v. Couillard, 237 Ark. 353, 372 S.W. 2d 825 (1963). 3. Appellant argues several other points, all of which are simply variations of the two discussed above. Although we have considered each, we find no merit in any of them. What has been said in disposing of points one and two above applies to the other designated points listed in appellants’ brief. 4. In addition to the listed and designated points for reversal as contained in their briefs, appellants attempt to argue for the first time on appeal that the land description, contained in the counter offer, is too indefinite and uncertain to support specific performance. Appellants rely on Turrentine v. Thompson, 193 Ark. 253, 99 S.W. 2d 585 (1926), but completely disregard such other cases as Branscum v. Drewery, 232 Ark. 947 at 949, 341 S.W. 2d 6 (1960). Even if we were permitted to consider this after thorough argument, it contains no merit. We hold the document of April 12, 1977, adequately described the property because it referred to the “Willis Fuller property Section 20, Township 2 South, Range 11 West’ ’. As the trial court was not faced with a question of the adequacy of the description, we would not reverse the decree unless we found the description to be one which could not furnish a “key” to location of the property. Branscum v. Drewery, supra. Cf. James v. Medford, 256 Ark. 1002, 512 S.W. 2d 545 (1974). 5. We hear this case de novo; and it appears that one modification should be made in the trial court’s decree. Appellants would be entitled to interest on the deferred balance of $8,000.00 from June 10, 1977, until closing at the rate of 9% per annum inasmuch as the Chancellor allowed monthly damages to appellee from June 10, 1977, the date the transaction should have been closed but was not closed. The difference between the interest due, and the accumulated monthly damages, shall be taken into consideration and paid at closing at the same time the deed is delivered and the down payment made. Except as noted above, the decree entered by the Pulaski County Chancery Court is fully supported by a preponderance of the evidence, and no error whatsoever being called to our attention, this case is affirmed as modified. Affirmed.

Ernie E. Wright, Chief Judge. This cause was appealed to the Arkansas Supreme Court, and by that Court assigned to the Court of Appeals pursuant to Rule 29(3) of the Arkansas Supreme Court. J. D. Richards III was convicted by the trial court, with jury waived, of the crime of terroristic threatening under Ark. Stat. Ann. § 41-1608 and his punishment was fixed at five years in the State Penitentiary. All of the sentence except five months was suspended. He was credited with the five months spent in the county jail awaiting trial and placed on probation. His points for reversal are without merit. I. It is contended that it was reversible error for the court to fail to require either side to make opening statements. Ark. Stat. Ann. § 43-2110 (Repl. 1977) provides that the prosecuting attorney may make a brief opening statement of the evidence on which the State relies, and § 43-2111 (Repl. 1977) makes a like provision as to the defendant. No request for opening statements was made by either the prosecution or appellant, and the case proceeded to trial without any opening statements. The applicable statutes in using the word “may” indicate that opening statements are permissible and not mandatory. Gregory v. Colvin, 235 Ark. 1007, 363 S.W. 2d 535. The trial being before the court without a jury and there being no request for an opening statement, it was within the court’s discretion to proceed with the trial without opening statements. Failure of the court to require opening statements did not violate appellant’s Federal Constitutional right to a fair trial. II. Appellant questions whether the statute here involved is violated absent the threat being communicated by the accused directly to the person threatened. Ark. Stat. Ann. § 41-1608 (1) reads: “A person commits the offense of terroristic threatening if with the purpose [of] terrorizing another person he threatens to cause death or serious physical injury or substantial property damage to another person.” There is no language in the statute indicating the threat must be communicated by the accused directly to the person threatened to constitute a violation. III. Appellant finally questions the conviction because the evidence presented by the State, even if true, fails to show a threat to kill and was a conditional threat. The evidence on the part of the State was that the person threatened, Mr. Roberts, was an employee of the Missouri Pacific Railroad at Conway; and that while he was starting his day of work on the railroad premises on August 19, 1977 the appellant, who had previously worked for the Missouri Pacific, came upon the railroad premises and insisted he was going to work the job Mr. Roberts was preparing to work on that day. The State’s evidence further indicates that the appellant asked Mr. Roberts to fight; that he had a rifle with him in the car in which he was riding; and that after Mr. Roberts left the presence of appellant, the appellant took a rifle from the car, cocked it, inserted a shell into the chamber, and told a railroad employee, “You’d better get that s. b. out of here or I’m going to shoot him”, referring to Mr. Roberts. There was further evidence that the threat was promptly communicated to Mr. Roberts by a railroad employee, that Mr. Roberts was frightened, concerned for the safety of his family, and that he left his job for the day. While the evidence was conflicting, the record discloses substantial evidence to support the finding of guilty by the trial court, and the rule is well settled that on appeal the court does not attempt to weigh the evidence. That is the function of the trial judge, sitting as a jury in this instance, to evaluate the testimony of the witnesses. Simmons v. State, 255 Ark. 82, 498 SW 2d 870 (1973). The threat to shoot another is a threat to cause such serious physical injury to another person as to constitute terroristic threatening within the express scope of §41-1608. The fact that the threat is conditioned in such a way as is calculated to coerce another person to abstain from a course of action he has a legal right to pursue is not a valid defense. We find no prejudicial error. Affirmed.

Conley Byrd, Justice. The issues here are (1) whether punitive damages arising out of an accident are recoverable within the terms of appellant Southern Farm Bureau Casualty Insurance Company’s automobile liability policy, and (2) whether such recovery is contrary to the public policy of the state of Arkansas. It is stipulated that as a result of an automobile accident between Larry White and appellee Bichard A. Daniel, the jury returned a verdict for Daniel in the amount of $7,000 compensatory damages and $5,000 punitive damages. The policy in question, a comprehensive automobile policy, provides as follows : "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages: “Coverage A. Because of bodily injuries sustained by any person, and “Coverage B. Because of injury to or destruction of property, caused by accident and arising out of ilie ownership, maintenance, or use of any automobile, including loading- and unloading thereof.” So far as our research reveals, this is the first time this issue has come before this court. Cases from other jurisdictions can be found holding both ways, see American Surety Co. of N. Y. v. Gold, (10th Cir. 1966), 375 F. 2d 528, 20 A.L.R. 3rd 335. Those courts which accentuate heavily the punishment aspect of punitive damages hold that it is against public policy to permit them to be recovered, Northwestern National Casualty Company v. McNulty, (5th Cir. 1962), 307 F. 2d 432. Other courts point out that the line of demarcation between a jury’s allowance of punitive damages and compensatory damages is too thin and exacting to apply coverage in the one case and deny coverage in the other. Such courts, Lasenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 383 S.W. 2d 1 (1964), place much less emphasis on the punishment aspect of punitive damages and permit a recovery under language similar to that involved here. They point out that there is nothing to prevent the insurer from ¡excluding the payment of punitive damages by appropriate policy provisions. Our cases, Kroger Grocery & Baking Co. v. Reeves, 210 Ark. 178, 194 S.W. 2d 876 (1946), hold that there can be no recovery for punitive damages unless actual damages are suffered and assessed. Such damages have been defined as damages imposed by way of punishment and as those given or awarded in view of the supposed aggravation of the injury to the feelings of the plaintiff by the wanton or reckless conduct of the defendant, Erwin v. Milligan, 188 Ark. 658, 67 S.W. 2d 592 (1934). Punitive damages are awarded upon a showing of gross and wanton negligence, Holmes v. Hollingsworth, 224 Ark. 347, 352 S.W. 2d 96 (1961), and recovery thereof has been permitted against an employer for acts or admissions of an employee even though such acts were done without the employer’s knowledge or authori zation and were not subsequently ratified by him, Miller v. Blanton, 213 Ark. 246, 210 S.W. 2d 293 (1948). As we read the policy herein it agrees to pay oil behalf of the insurer all sums which the insured shall become LEGALLY OBLIGATED TO PAY AS DAMAGES, because of bodily injuries sustained. When we consider that under our law, one cannot become legally obligated to pay punitive damages unless actual damages have been sustained and assessed, we find that punitive damages constitute a sum which the insured becomes legally obligated to pay as damages because of bodily injuries sustained, see Carroway v. Johnson, 245 S.C. 200, 139 S.E. 2d 908 (1965). Neither can we find anything in the state’s public policy that prevents an insurer from indemnifying its insured against punitive damages arising out of an accident, as distinguished from intentional torts. Since we have permitted punitive damages to be assessed against an employer under the doctrine of respondeat superior even in the absence of the employer’s knowledge or authorization of the employee’s acts, we can perceive of no good reason why an employer should be prohibited from insuring himself against such losses, since the losses are in effect a business loss — i.e., a calculated risk of doing business. Ft lias been suggested that our decision herein should be controlled by Arnold v. State, 220 Ark. 25, 245 S.W. 2d 818 (1952), wherein we held that a surety on a sheriff’s bond was not liable for punitive damages. We find that this ease is not controlling because such bonds are executed pursuant to statute and cover only the damages set forth in the statute. See Maryland Casualty Co. v. Baker, 304 Ky. 296, 200 S.W. 2d 757 (1947). Affirmed. Foulkman and Jones, JJ., dissent.

Humphreys, J. On the 25th day of May, 1938, the prosecuting attorney of the 10th judicial district of Arkansas filed information in Bradley county charging appellant with murder in the first degree, committed by striking and cutting Richard Reed, with an ax on November 3, 1937, from which wounds the said Richard Reed died on March 14, 1938. On November 7, 1938, appellant was tried in said county and convicted of murder in the first degree and on the 8th day of May was adjudged to serve for life in the penitentiary as punishment for the crime, from which an appeal has been duly prosecuted to this court. The testimony introduced on the trial of the cause is as follows: Judge Williams, Judge being his given name, testified, in substance, that he was working for Mr. Reed and went with him to appellant’s house to collect $10; that the first visit was about 10:30 a. m. at which time appellant told Mr. Reed to come back about noon and he would pay Reed the debt; that they went back at about 11:30 a. m. and were invited into the house by Exa, appellant’s wife, and after entering the kitchen saw appellant behind the stove cooking; that Exa said her husband was not going to pay the debt until thev sold their furniture, whereupon, Reed, addressing appellant, said “Come go with me, Jim,” (Referring to appellant) meaning that he wanted him to go with him to Bradley’s store where there was something dne him for work he had done; that appellant said, “I will be ready in a few minutes”; that Exa told us to get out of the house, that Jim was not going and then threw a pan of corn bread which hit Mr. Reed; that he tried to ward off the bread and then grabbed her and tried to keep her from hitting Mr. Reed and while he had hold of her appellant came from behind the stove and hit at him with a pole-ax and that he threw up his arm and caught part of the lick on top of his head; that Mr. Reed told them not to-fight and said, “I will give you the debt,” at which time appellant ran around witness and hit Mr. Reed on the side of the head with the ax, and ran out of the house; that witness also ran out of the house and had a neighbor call the sheriff. Witness admitted on cross-examination that he had sworn on a trial in February that neither he nor Reed had a pistol when they went to appellant’s home which testimony was admitted to have been false as Mr. Reed had a pistol which he had gotten from a friend that morning before they went to appellant’s house, but after the admission said that neither he nor Mr. Reed drew the pistol or attempted to use it during the fight. Mrs. Richard Reed (widow of the deceased) testified that she saw her husband at the hospital on November 3, 1937, a short time after he had been taken over there and that he had a wound on the side of his head from the effects of which he died- on the 14th day of March,1938. C. W. Hickman, sheriff of the county and his deputy, J. J. Johnson, who arrested appellant and his wife, testified that appellant admitted to them he hit Mr. Reed on the head with the ax which he got off the porch just outside the kitchen door, and when asked why he did not keep going instead of getting the ax he replied that he was mad. J. H. Crawford, the town marshal, testified that he went with Williams to appellant’s home, in search of appellant and his wife, and found an ax either on the outside or in the house; that he took the ax and kept it in Ms lacker until the trial at which time he 'brought it. to.court; that he found a broken pot contaimng beans on-the table in the Mtchen, a skillet and lots of dough on the-, floor and a broken stick like a broom handle in the Mtchen; and that he did not remember whether Williams told him that he snapped a pistol at appellant. •The physicians who operated upon and treated Mr. Reed testified that in their opinion Mr. - Reed died on March 14,1938, as a result from the wound he received on November 3, and that he did not die from any independent, cause. • Exa- McClendon, appellant's wife, who was sixteen-years of age at the time of the difficulty and seventeen years of age at the time she gave her testimony, testified,, in- substance, that Mr. Reed and Williams came to- their home three times during the morning the difficulty occurred and that on the first and' second visits Mr. Reed talked to her husband about collecting a debt he owed Mr. Reed and that there was no dispute or any differences-between them at that timé; that on the third visit Williams went into the Mtchen and told her husband the sheriff had sent him out to bring him down town; that Williams had a pistol in his pocket and while her husband was taking some bread out of the stove Mr. Reed came-in the door and said, “Get him, Judge,” and that Williams drew the pistol on her husband; that she threw a pan of bread she had in her hand down on the floor and grabbed the barrel of the pistol and held it until her brother,. Jeems, who came in from his work about that time, got. near them; that Williams snapped the pistol at her husband but it failed to fire; that Williams kept telling her to get back or he would shoot; that Jeems took the pistol away from Williams and when she tried to pass out of the Mtchen through the door Mr. Reed hit her with a stick and that she ran out into the yard; that she did not see her husband get the ax, but it was just outside the Mtchen door on the porch where they kept their wood. Jeems McClendon, a brother of appellant, testified,, in substance, that when he came in from his work about 11:30 o’clock Williams, Exa and appellant were seuf- fling over a pistol and that Mr. Reed had a stick in his hand and was threatening to get the law; that he took the pistol away from Williams, and that during the altercation Mr. Reed hit appellant, Exa and himself with the stick; that after he took the pistol he ran out to a neighbor’s house and telephoned for the sheriff and waited there until the sheriff came and gave him the pistol; that he did not see the ax or his brother hit Mr. Reed. Appellant testified, in substance, that Reed and Williams came, to his house three times and that on the second visit witness promised to go to the mill and pay Mr. Reed about 5:30 o’clock; that they came back again the third time and Williams came in and told witness the-sheriff had requested him to 'bring him down town and that he refused to go and that about that time Mr. Reed walked in the kitchen door and asked witness whether he was going and when he said “no” Reed hollered to Williams, “G-et him” and Williams began to cuss, drew a pistol and snapped it at witness three times whereupon Exa threw a pan of bread down on the floor and grabbed the barrel of the pistol and while the struggle was going on over the pistol Williams took a stick from him with which he had hit Williams, Exa and himself and was going to hit her again when he reached out the door on the porch and got the ax with which he struck at Williams, but missed him and accidentally hit Mr. Reed; that he was mad-and crying and did what he did in defense of his wife and himself; that during the scuffle Jeems, his brother, took the pistol away from Williams; that he then ran out of -the house and left. • Appellant assigns as error the insufficiency of the evidence to sustain a verdict for murder in the first degree. Murder in the first degree is defined by § 2969 of Pope’s Digest as follows : “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the at tempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree. ’ ’ It was said by Chief Justice Scott in Bivens v. State, 11 Ark. 460, that: “The distinctive feature' of this particular class, of cases of murder is a wilful, deliberate, malicious and premeditated intent to take a life. . . . It is indispensable that the evidence should show that the killing with malice was preceded by a clearly formed design to kill — a clear intent, to take life. ’ ’ It was said by Chibe Justice ENglish in the case of Fitzpatrick v. State, 37 Ark. 238, that, “To constitute murder in the first degree there must be a specific intent to take life beforehand and carried out with deliberation. ’ ’ These declarations of law were approved in the case of Howard v. State, 82 Ark. 97, 100 S. W. 756. In the last cited case this court set aside the .judgment of murder in the first degree and affirmed it for murder in the second degree. This court also decided in the case of Harris v. State, 119 Ark. 85, 177 S. W. 421 that, “In the absence of premeditation and deliberation the killing can not be murder in the first degree.” After reading the evidence in the instant case carefully and giving same its strongest probative' force in favor of the finding of the jury, we hold that it is not sufficient to sustain the judgment for murder in the first degree under the law above set forth. There is no evidence in the record tending to show any enmity between appellant and deceased prior to the difficulty resulting in the injury to deceased. All the evidence is to the effect that appellant and deceased were on good terms. Deceased had extended credit to appellant for his groceries and appellant had agreed to go with deceased and Williams to the Bradley store and give him an order for the money he owed him. According to the testimony of the state' the difficulty occurred when Exa threw a pan of bread at deceased and ordered them out of the house; that -at that time Williams tried to prevent the bread from hitting deceased and grabbed and was bolding her when appellant came np from behind the stove and struck at Williams with the ax then ran around him and struck deceased with the ax from the back on the side of his head when he was walking toward the. door. Williams did not directly deny that Jeems took the pistol away from him. • There is no question that a sudden fight occurred between the parties a few moments after Williams and Eeed entered the kitchen. The fight was carried on with, most anything they could get their hands on as evidenced ■by a broken pot of beans on the table, a pan of bread or dough on the floor and a stick broken, half in two and an ax which were all found at or near the stíene of the difficulty. Even according to the evidence of Williams, who admitted he had been guilty of perjury, the fight began suddenly, and continued without interruption until the injury was inflicted by appellant on Mr. Reed. We do not think it has been shpwn beyond a reasonable -doubt that the killing was the result of malice, and certainly it does not show beyond a reasonable doubt that it was the result of deliberation and premeditation on the part of appellant. Appellant had no grudge against deceased,, but he and deceased were friends until the difficulty arose. During the progress of the; fight there was no time for him to meditate or deliberate so we have concluded that the injury inflicted upon deceased causing his subsequent death was the result of a sudden quarrel between deceased and Williams on the one part and appellant’s wife on the other, in appellant’s own home where he had a right to be and where deceased and Williams, an admitted perjurer and willing participant in the fight, had no right to go armed with a pistol for the. purpose of enforcing the collection of a debt. We'think that when the evidence on the part of the state is viewed in the most favorable light to the state, the highest degree of homicide which it can possibly support, is voluntary manslaughter. Manslaughter is defined by § 2980 of Pope’s Digest as follows: ‘ ‘Manslaughter is the unlawful killing’ of a human being, without malice, express or implied, and without deliberation.” Voluntary manslaughter is defined by § 2981 of Pope’s Digest as follows: “Manslaughter must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. ’ ’ Appellant also contends that it is not shown beyond a reasonable doubt that the deceased died on March 14, 1938, from the effects of the wound which he received on November 3, 1937. This contention is met by the testimony of the physicians who attended the deceased after the wound was inflicted and up to the time deceased died. They both testified that in their opinion his death was the result of the injury and was not the result of any independent cause. The judgment will, therefore, be reversed and the cause remanded for a new trial, unless the attorney general elects within fifteen days to have the appellant sentenced for voluntary manslaughter, in which event the trial court is directed to sentence appellant for that crime for seven years, which is the highest punishment fixed by statute for voluntary manslaughter.

John I. Purtle, Justice. Appellant was convicted of murder in the first degree and sentenced to life in prison. This was a retrial of the prior conviction of capital felony murder which was reversed by this Court in Bly v. State, 263 Ark. 138, 562 S.W. 2d 605 (1978). On appeal he alleges 8 points for reversal. We will deal with them in the order of appearance in the brief. The points argued generally deal with lack of corroboration, collateral estoppel, improper offer of evidence, and the introduction of improper evidence. However, we do not find prejudicial error in any of the contentions argued by appellant arid therefore affirm the conviction. Arthur Ed Burns was brutally murdered on October 13, 1976, by means of stab wounds to the heart and having his throat cut. The evidence, except for the testimony of the accomplice, Marty Tumbleson, was circumstantial. The accomplice testified that he was present with the appellant and the victim at the time of the murder. He described how the three of them got together at a service station in Clarksville about 9:00 or 9:30 p.m. on October 13, 1976, and drove around in a white Chevrolet automobile for some time. He described the actions of the appellant in beating the victim, who was 71 years of age, in the back seat of the car. The victim lost a considerable amount of blood while in the automobile. After driving around looking for wine, they eventually stopped on Lake Dardanelle at a location known as Cabin Creek. Appellant removed the victim from the vehicle and took him behind the automobile where he continued to beat him. Appellant then borrowed the accomplice’s knife and stabbed Burns in the heart while he was lying on the ground behind the automobile. Following this, the appellant handed the knife to the accomplice, who was 17 years of age, who stabbed the victim in the chest again. Thereafter appellant instructed him to remove the body from the area and cut Burns’ throat, which he did. According to the accomplice, they then drove to a place called Minnow Creek where they washed the blood from the automobile with some type of chemical. Tumbleson and the appellant then drove back to Clarksville and arrived at the South Park Service Station where they purchased gas and cigarettes with $2 they had taken from the victim. Then they went to the Caprice Restaurant where they met Jennifer Tumbleson, the accomplice’s sister. Although this witness made some four different statements, some of which were inconsistent, we are reciting only his testimony at the trial. He subsequently entered a plea of guilty to murder in the first degree.. Tumbleson testified that he and the appellant, along with his sister Jennifer, left town in the automobile that night. He went to sleep after they had driven for awhile and when he awoke they were at a roadside park. The following morning they drove into Mississippi where they discarded their clothing, which had bloodstains on them, and threw the knife in the Mississippi River. Thereafter they headed back into Arkansas and the accomplice departed the company of the other two at Hazen, Arkansas, and hitchhiked back to Clarksville. Roger Holman testified he saw the appellant, the vie tim, and the accomplice at the Save Service Station between 9:00 and 9:30 p.m. on October 13, 1976, in a 1964 cream colored automobile. The accomplice joined the appellant and the victim at the station after the two had arrived in the automobile. When they left the station, about 9:30 p.m., the accomplice was driving the vehicle. He had also noticed a knife strapped to the body of the accomplice. His wife, Patricia Holman, testified essentially to the same facts. Mervin Ferrish operated the Caprice Restaurant in Clarksville. He observed the appellant and Tumbleson at his place of business about 11:15 p.m. on October 13,1976. The two of them were in a white Chevrolet automobile. Tumble-son called his sister, Jennifer, over to the automobile where appellant and the accomplice were seated. Jennifer was employed by Ferrish at the restaurant. At that time he advanced her $20. Although she was supposed to return to work the next day, it was two or three weeks before she appeared again. Alan Ferrish testified he worked at the Caprice Service Station on October 13, 1976. He filled a white Chevrolet automobile gas tank for the appellant, Tumbleson and Jennifer shortly after 11:00 p.m. on the same date. He observed the three of them leave in the vehicle. On October 15,1976, Chesley Shirrod, a junk dealer in Memphis, purchased a 1964 white Chevrolet automobile from Jennifer and the appellant. He paid the sum of $50 and received a bill of sale after Jennifer exhibited ownership papers to him. Shirrod identified appellant at the trial as the man who was with Jennifer when he purchased the car. He kept the car a week or so and turned it over to a Mr. Goza who was interested in purchasing the vehicle. He testified the vehicle was not altered in any manner while he had it in his possession. Don Goza testified he took possession of the car from Shirrod about the middle of October, 1976 and took it deer hunting the following day. The car was subsequently confiscated by the Arkansas State Police. He thought the vehicle was picked up by the police a few days after it came into his possession. Bill Bounds, a member of the Arkansas State Police, investigated some of the events of this crime. He took possession of the automobile in question on November 9,1976, and had it towed to West Memphis where he examined it in detail for evidence. He noticed some discoloration in the back seat and on the floor board. He took samples of the fabric from the seat and from the floor mat. These samples were marked for identification and turned over to the state toxicologist for laboratory analysis. Berwin Monroe, Chief Criminologist for the State of Arkansas, testified he analyzed the samples received from Bounds and found traces of human blood in the exhibits, which he identified at the trial. Doug Stephens, an investigator for the Arkansas State Police, aided in the investigation of this matter. He visited the scene of the crime and obtained pictures of the body and of the surrounding territory before the body was moved. He also drew diagrams or sketches of the area which he admitted were not to scale. His investigation commmenced on October 16,1976. He described the scene to the jury and exhibited the pictures which were introduced into evidence. He further described the nature of the wounds on the body of the victim. Sheriff Meek assisted in the investigation and his testimony was essentially the same as that of Doug Stephens. Rodney Carlton, then State Medical Examiner, performed an autopsy. He found bruises and scratches about the face of the victim. He also described the stab wounds to the chest and the wound to the throat of the victim. It was his feeling the wounds to the chest initiated the victim’s death. He further stated the throat wound revealed the trachea, carotid arteries and jugular vein were damaged. He also found the victim’s blood alcohol content was 0.19 percent by weight. I. THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN THE CONVICTION SINCE TUMBLESON WAS AN ACCOMPLICE AND HIS TESTIMONY WAS NOT CORROBORATED BY OTHER EVIDENCE TENDING TO CONNECT BLY WITH THE COMMISSION OF THE CRIME. Tumbleson described every detail of the event, including the crime scene and the flight. There is no doubt his testimony alone would support the conviction of the appellant were it not for the rule that a conviction cannot stand upon the uncorroborated testimony of an accomplice. Ark. Stat. Ann. § 43-2116 (Repl. 1977). We must examine the record to see if such corroboration existed in this case. The corroborating evidence must tend to connect the accused with the crime and must be independent of the evidence given by the accomplice. Froman v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960); Burnett v. State, 262 Ark. 235, 556 S.W. 2d 653 (1977), cert. denied 435 U.S. 944 (1978). Corroborating evidence may be circumstantial so long as it is substantial. Olles v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976). A test on the sufficiency of corroborating testimony of an accomplice is if the accomplice’s testimony were eliminated from the case, would the other testimony establish the commission of the offense and the connection of the accused therewith. Froman, supra. The independent evidence itself need not be of such substantial character as to support a conviction without the testimony of the accomplice. Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361 (1966); Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978), cert. denied 440 U.S. 911 (1979). Several witnesses saw the appellant, Tumbleson and Bums drive away in a 1964 Chevrolet about 9:30 p.m. on the date of the murder. Other witnesses saw appellant, and Tumbleson return to the same area in a white Chevrolet about 11:00 p.m. on the same day. The victim was not with them when they returned. Witnesses also saw the appellant, Tumbleson and Jennifer drive away from Clarksville shortly thereafter. Mr Shirrod testified he purchased the car in Memphis on October 15, 1976. Jennifer Tumbleson ,had ownership papers to the vehicle and executed a bill of sale. This evidence was introduced at the trial..We have held the flight by an accused is a circumstance to be considered in determining his guilt. Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884 (1973); Centeno v. State, 260 Ark. 17, 537 S.W. 2d 368 (1976). The evidence of human blood on the samples taken from the vehicle several days later tend to have some probative value, especially in view of the testimony clearly showing the vehicle had not been tampered with. When the above testimony and evidence is considered we think it tends to substantially connect the appellant with the commission of the offense. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423 (1973); Olles, supra. In this case where the murder weapon had been disposed of in the Mississippi River and there were no direct witnesses to the murder, other than the accomplice and the accused, who refused to testify, there is no way to prove the guilt of the accused other than by circumstantial evidence. We hold circumstantial evidence introduced in this case is substantial and tends to connect the appellant with the offense. II. THE DOCTRINE OF COLLATERAL ESTOPPEL PREVENTS THE STATE OF ARKANSAS FROM TRYING BLY FOR FIRST DEGREE MURDER BECAUSE THE JURY AT THE FIRST TRIAL AND A SPECIAL FINDING FOUND SPECIFICALLY THAT BLY DID NOT KILL BURNS. Appellant urges collateral estoppel should be applied in this case. He contends the finding of the jury, during the mitigation stage of the first trial, that Burns was killed by someone other than the appellant, brings this doctrine into force thereby causing appellant to be immune from prosecution for first degree murder. This argument is based upon the premise that first degree murder was necessarily included in the trial for capital felony murder. Ark. Stat. Ann. §§ 41-106 and 107 (Repl. 1977) relate to this doctrine. § 41-106 relates to prosecution for the same offense, and § 41-107 relates to former prosecution for a different offense. We have the prosecution for a different offense under consideration here. Ark. Stat. Ann. § 41-107 reads: A former prosecution is an affirmative defense to a subsequent prosecution for a different offense under the following circumstances. (1) The former prosecution resulted in an acquittal or in a conviction as set out in section 106 (§ 41-106) and the subsequent prosecution is for: (a) any offense of which the defendant could have been convicted in the first prosecution; or (b) an offense based on the same conduct, unless: (i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or (ii) the second offense was not consummated when the former trial began. (2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense. (3) The former prosecution was terminated under the circumstances described in section 106 (§ 41-106) and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been terminated. Obviously, the first trial did not result in an acquittal. The charge included, the present charge but was not an acquittal of the first degree murder charge by reason of being convicted of capital felony murder. There was not a necessary determination of the appellant’s guilt on first degree murder in the finding of his guilt in capital murder. In setting the first conviction aside the appellant is back where he started. He is presumed innocent of first degree murder when the trial commences just as he was presumed innocent of capital felony murder when his first trial started. Capital felony murder requires the death to have been the result of actions taken during the commission or attempt to commit a felony. First degree murder may be committed in the same manner; however, first degree murder may also be committed only by premeditation and deliberation for the purpose of killing the victim. There is no requirement that first degree murder be the result of actions pertaining to a felony. Ark. Stat. Ann. § 41-1502 (1) (b) (Repl. 1977). The defense of collateral estoppel is not warranted under the facts or the law in this case. In making this determination, we hold that the finding of the. jury on mitigation of circumstances has no bearing on the issue of guilt or innocence of the appellant. III. THE OFFER BY THE STATE OF ARKANSAS OF THE TRANSCRIPT OF APPELLANT ELY’S TESTIMONY IN THE FIRST TRIAL, AND THE ENSUING DISCUSSION BEFORE THE BENCH AMOUNTS TO A COMMENT ON THE APPELLANT’S FAILURE TO TESTIFY. The record shows appellant’s motion to exclude his former testimony in the prior trial was granted. Also, the record shows it was out of the hearing of the jury. Without need of citation we state unequivocally this was not prejudicial to the appellant. IV. THE TRIAL COURT ERRED IN PERMITTING THE JURY TO REHEAR A PORTION OF TESTIMONY WITHOUT FIRST DETERMINING WHAT SUCH TESTIMONY WAS. After deliberating for some time the jury returned and requested to hear parts of Marty Tumbleson’s testimony again. Prior to allowing the jury to hear this testimony, the court inquired of the attorneys whether there were any ob jections. The entire jury was in the room at this time. Neither the state nor the defense objected to it being heard again by the jury. In fact, both specifically stated they did not object. Obviously, appellant waived any objection he may have had to this procedure. We do not hear matters on appeal for the first time. The issue must be raised at the trial level. Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888 (1978). V. THE TRIAL COURT ERRED IN ADMITTING A PORTION OF BLOODSTAINED SEAT COVER IN EVIDENCE WITHOUT PRELIMINARY PROOF TENDING TO SHOW THE CONDITION OF THE SEAT COVER AT THE TIME OF THE CRIME, OR IMMEDIATELY THEREAFTER. We discuss the facts under Point I as they relate to the description of the stained seat cover which was introduced into , evidence. It seems the testimony of the witnesses clearly showed the vehicle was in essentially the same condition as it was when the appellant departed possession of it. Appellant objected to the introduction of the bloodstained fabric because the state failed to show the stain was on it when the appellant last had control of it. Whether the evidence was relevant was the determining factor. Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 401, states: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402 makes all relevant evidence admissible. We think this evidence was relevant as having a tendency to corroborate the testimony of Tumbleson. We have previously allowed bloodstained clothing to be introduced. Atkinson v. State, 223 Ark. 538, 267 S.W. 2d 304 (1954). The trial judge did not abuse his discretion in this matter. Gardner v. State, supra. VI. THE TRIAL COURT ERRED IN LIFTING THE SEQUESTRATION OF THE JURY OVER APPELLANT’S OBJECTION. The jury was sequestered the first night of the trial. Several jurors indicated a second night of sequestration would cause some hardship to them. Also, the sheriff informed the court it would be virtually impossible to find adequate quarters for them at that time of day. The trial court instructed the jury that under no circumstances were they to discuss the matter with each other nor were they to listen to news accounts or read the newspapers. They were allowed to return to their respective homes the second night. The following morning, when they returned, the court again questioned them as to whether they had violated his previous instructions. He went so far as to inquire of each individual juror as to whether he had abided by the admonition. Under the circumstances, we do not feel it was prejudicial error to fail to sequester the jury on the second night, especially in view of the extent to which the court went to protect the integrity of the jury. This is a matter that is within the sound discretion of the trial court and such determination will not be deemed improper unless there is a showing of abuse of this discretion. Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977). VII. THE TRIAL COURT ERRED IN PERMITTING TESTIMONY BY INVESTIGATOR STEPHENS CONCERNING THE ALLEGED CRIME SCENE. We can see no prejudicial error whatsoever in the trial court allowing Doug Stephens to give a description of the murder scene. It is also helpful to the jury to have an explanation of the area in order to better understand the testimony as it is given. Stephens’ testimony was the first given and apparently intended to give the jury an over-all understanding of the geographical territory which would be discussed during the trial. The drawings which Mr. Stephens intro duced were admittedly not drawn to scale. However, there is no indication that anything about either drawing was prejudicial to the appellant. Several witnesses later referred to the drawings during their testimony. Obviously, this was of assistance to the witnesses in offering their testimony and probably aided the jury in understanding what the witness was saying. We view the matter to be governed by our decision in Pinson v. State, 210 Ark. 56, 194 S.W. 2d 190 (1946); Howell v. Baskins, 213 Ark. 665, 212 S.W. 2d 353 (1948). VIII. THE STATE FAILED TO PROVE BLY WAS AN HABITUAL OFFENDER UNDER ARK. STAT. ANN. § 41-1002. One of two prior convictions introduced by the state indicated appellant had received only a 6-month sentence. Appellant objected to this conviction being introduced because it was not shown on the document the offense was a felony. The court made a determination that the challenged conviction was in fact a felony before permitting it to be presented to the jury. The court relied upon a computer printout to determine the offense was a felony. Subsequent examination of the Oregon statute revealed it was in fact a felony. Therefore, the court took a chance in relying upon the printout and it turned out to be correct. We see no prejudice to appellant in this case. We have examined the record of this trial for potential errors which have not been briefed by the appellant. We do not find any prejudicial errors which were not treated by the appellant in his brief. Affirmed. Mays and Hickman, JJ., dissent.

M. Steele Hays, Judge. This is the second appeal of Lawrence Shawn Cockerel. On December 15, 1977, appellant and Bryan Sbado were convicted of first degree battery in the shooting of Patrick Pinson on the Western Hills Golf Course. The jury fixed the punishment at four years. On appeal the Arkansas Supreme Court overturned the conviction of this appellant and affirmed the conviction of Sbado. After the reversal, the case was transferred from First Division of the Circuit Court to the Fourth Division, and hence, appellant was tried and sentenced by a different judge. The second sentence was for a term of ten years. For reversal, appellant argues a single point — that the imposition of a greater sentence upon the second conviction is a denial of the constitutional guarantee of due process. The argument is compelling. The matter of harsher sentences to persons convicted a second time has been the subject of much litigation and com ment. The relevant constitutional questions involve double jeopardy, due process, and sometimes equal protection. The arguments were put to rest, at least for now, in the United States Supreme Court decision of Pearce v. North Carolina, 395 U.S. 711 (1968), delivered by Justice Stewart. Respondent Pearce was sentenced to 12-15 years upon a charge of assault with intent to commit rape. The conviction was overturned several years later, and upon retrial he was convicted and sentenced to an eight year prison term. It was agreed that the second term, when added to the time served under the original sentence, exceeded the original sentence. A majority of the court reaffirmed the doctrines announced in United States v. Ball, 63 U.S. 662 (1896) — that an accused is not put in double jeopardy by a retrial obtained at the request of the accused nor does the Equal Protection Clause impose an absolute bar to a more severe sentence upon reconviction. Williams v. New York, 337 U.S. 241 (1949). But that did not end the inquiry, as the majority reasoned that it would be a violation of due process of law for an accused to be penalized by reason of having exercised a fundamental right to appeal and that such right must be free and unfettered, irrespective of whether the error of the first conviction was on the basis of constitutional or non-constitutional grounds. The opinion stated that due process requires that vindictiveness must play no part in the sentence that the defendant receives in the second trial and, further, that due process requires that the defendant be free of “the apprehension of such a retaliatory motivation on the part of the sentencing judge.” To assure the absence of such, Pearce holds that whenever a judge imposes a more severe sentence upon a new trial, the reason for his doing so must affirmatively appear and “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding, and the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional rights of the accused may be freely reviewed on appeal.” ___ The holding in Pearce was applied by the Supreme Court of Arkansas in Marshall v. State, 265 Ark. 302 (1979). Marshall entered a plea of guilty to aggravated robbery and was sentenced to twenty years. The conviction was vacated under Rule 37 of the Rules of Criminal Procedure and Marshall was retried. He was again convicted and a sentence of thirty five years was imposed. Noting that United States v. Tateo, 377 U.S. 463 (1964) recognized that neither the fifth amendment nor the fourteenth amendment absolutely prohibits a greater sentence on retrial because “the slate of the accused has been wiped clean” by the reversal, the court accepted the requirements of the Pearce decision and directed a reduction of Marshall’s sentence to the original sentence because the record failed to disclose any evidence of Marshall’s conduct subsequent to the original sentencing proceeding, or that he was “less credible or the crime more severe.” This is precisely true of the record here presented. A careful search provides a resounding absence of any objective information as to the conduct of Cockerel subsequent to the first trial or, for that matter, of any data upon which it might affirmatively appear the trial court relied in imposing the greater sentence. The testimony óf Dennis Flowers was, he says, identical to his testimony at the earlier trial, and the defendant, who took the stand, testified in accord with a written statement he gave immediately after the occurrence. Nor does it ever appear affirmatively that his admission that he was a parolee from a conviction for armed robbery (prior to the shooting of Pinson) was not before the jury. In short, there is nothing in the record that complies with or even approaches the imperatives of Pearce and Marshall. It should not be inferred that the trial court exhibited vindictiveness in the slightest degree in the sentence it imposed, nor that the sentence was intrinsically excessive (in view of the flagrant and senseless aspects of a deliberate, wanton act), except in so far as it exceeds the earlier sentence. Moreover, the trial judge’s comments in the sentencing proceedings permit no other conclusion but that he was unmindful of, or indifferent to, the Marshall and Pearce decisions. The judgment of the lower court is affirmed with directions to modify the sentence to conform to the original sentence. Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv L. Rev. 1595 (1960).

Lyle Brown, Justice. This is an appeal from an affirmance by the circuit court of a Workmens Compensation Commission order. The commission refused to set aside its award made to appellant, Walter Lee Cook, on the basis of a joint petition filed by Cook and Ms employer, J. Turner Brown, and Truck Insurance Exchange. The latter two parties are the appellees. In denying Cook’s application for voidance of the award, the commission held it was without jurisdiction to set aside the order of award or to reopen the case. The correctness of that holding is the single issue on appeal. Cook was injured on August 20, 1965, while employed by Brown. On September 9, 1966, the employer, employee, and insurance carrier submitted a joint petition to the commission. A lump sum settlement was proposed, based on fifteen per cent permanent partial disability. A hearing was conducted, at which claimant testified, and an order was entered granting the petition. In conformity with that order, Truck Insurance Exchange paid over the awarded amount, being $2,329.25. In August 1967, slightly less than one year after the award, Cook filed a petition with the commission to set aside the joint petition award. He stated that he “was incapable of understanding the legal ramifications” relevant to the joint petition and thought his claim would remain open. Finally he asserted that his disability had subsequently increased to thirty per cent. From an examination of the petition itself, the commission held it was without jurisdiction to set aside the joint petition award. That conclusion was based on Ark. Stat. Ann. § 81-1319 (1) (Repl. 1960): (1) Joint Petition. Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as ma}^ be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award tliat shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition. We view § 81-1319 (1) as the statutory method for effecting a compromise settlement. It of course anticipates negotiations between the parties prior to the filing of the petition. When they agree upon a figure of settlement they must come before the commission for approval. In the interest of the claimant the statute requires a hearing; testimony is taken and any necessary investigation by the commission is authorized; then it must be determined that the proposed settlement is in the best interest of the injured worker. If the commission approves the proposed settlement it then enters an order of award. That award “shall be final as to the rights of all parties to said petition, and thereafter the commission shall not have jurisdiction over any claim for the same injury or any results arising from same.” Because of the finality of the procedure, wre perceive (as is evident in the record here) that the commission is careful to follow its duties under the statute, which are designed to protect the worker. In upholding the commission’s position that it had no jurisdiction of claimant’s petition to set aside the award, we look to the allegations of that petition. It should be first pointed out that there is no allegation of fraud or insanity. With commendable candor, the petition states that “through no fault of anyone” claimant was incapable of understanding the legal ramifications of the petition; that because of that impediment he thought he was being paid for injuries to date; and that the claim would remain open to take care of any increase in disability subsequent to the settlement. Those as sertions are contrary to the express language of the joint petition, and, we might add, in direct conflict with the record made at the hearing at which claimant testified. No statute similar to § 81-1319 (1) from any jurisdiction has been called to our attention. We do find an Illinois statute which is comparable. Smith-Hurd Ann. St. Ch. 47-48 § 156, par. (h), precludes review by the commission of any lump sum award or settlement contract approved by it. That statute has been held to estop review by the commission of such a settlement even for alleged fraud. Michelson v. Industrial Commission, 31 N.E. 2d 940 (1941). A somewhat similar statute in Oklahoma has been likewise interpreted. Gibbins v. Indian Electric Cooperative, 219 P. 2d 634 (1950); Indian Territory Illuminating Oil Co. v. Ray, 5 P. 2d 383 (1931). In both jurisdictions the claimants were referred to the courts for relief. We cite those cases only to show that other jurisdictions are extremely cautious about giving to their commissions the power to review their own joint and final awards. Their reasoning is to the effect that the statutes are so clear that to hold otherwise would be to legislate by judicial pronouncement. Our statute is unambiguous. It is fortified by the wording of Ark. Stat. Ann. § 81-1326 (Eepl. 1960). That section provides for the modification of awards generally; however, it specifically excepts from its provisions those awards made under § 81-1319 (1). We hold that neither the statute nor any inherent powers of the commission, considering the state of claimant’s pleadings, would justify its reopening of the joint settlement,- Affirmed.

Humphreys, J. Separate suits were 'brought by appellant, the American Snuff Company, in the circuit court of Ouachita county, second division, to recover separate amounts for snuff which it shipped and invoiced to each appellee, to Bearden, Arkansas. It was alleged that it shipped and invoiced to T. T. Stuckey on written order snuff of the net value of $406.76, and to Julius Anthony snuff of the net value of $597.13, and judgments were prayed against each for the value of the snuff shipped and invoiced to each. The defense interposed in each case was that under the terms of the contract the snuff shipped and invoiced to each was on .consignment to he paid for as sold on commission and was not an outright sale, and that, at the time the snuff was destroyed by fire, appellee, T. T. Stuckey, had sold snuff out of the shipment to him of the value of $132.59, and that Julius Anthony had sold out of the shipment to him snuff of the value of $119.89, and denied liability in excess .of the amount sold by each. The issue involved in each case being the same, the causes were consolidated for the purposes of trial and were submitted to a jury upon the testimony adduced and instructions, of the court, resulting in a verdict against Julius Anthony for $119.89 and against T. T. Stuckey for $123.59 in favor of appellant, the value of the snuff sold by each, but the jury found in favor of Julius Anthony and T. T. Stuckey as to the balance claimed by appellant from each and has duly prosecuted an appeal to this court from the adverse finding of the jury and the consequent dismissal of its complaint for such balances. The testimony introduced by appellant consisted of the orders and invoices which contained the clause that the snuff should be paid for as sold and oral evidence to the effect that the trade meaning of the words “to be paid for as sold” meant that this gave the merchant the privilege of paying* for the snuff along as he sold it instead of making a specific date of payment and maybe working a hardship on the merchant by making it become due on a date when he would not probably be able to pay it; and to the effect that it never sold any merchandise on consignment in which it retained title, but that the transactions were absolute sales and that 'the title to the snuff passed to appellees upon delivery thereof to them. Appellees testified that the trade meaning of the words “to be paid for as sold” in the orders and invoices was that the snuff was left with each as agents of appellant to sell same on a- commission and was not to be paid for until sold. The orders were taken by G-ordon Roberts, who represented appellant in the transactions, and the following answer is copied from the testimony of T. T. Stuckey: “A. Well, he came in there and'wanted to sell me some snuff, and I told him I didn’t want much; and he wanted to ship me a large order, and I told him I could not use that much. I had been buying it from time to time when he came around, prior to that time and I paid for it every thirty days; and he wanted to sell me a large shipment, and I didn’t want it; and he asked me to put in four or five hundred dollars worth and leave it in there in my store, and for me to pay for it when he,came around to check up; and for me to take it and sell it and he would have control of what I didn’t sell; and he would come in from time to time and check up on what I had sold and give me credit; and he had the right to do anything he wanted to with the snuff. ... Q. If you had any other conversation with reference to the control of it, please state what that was. A. He said he had a right to come out any time and take it somewhere else, any amount of it that he wanted to. Q. What were you to get, Mr. Stuckey, for handling it in that way? A. I was to get five and ten per cent, off of the list price on what I sold. Q. You were to get that as a commission? A. Yes, sir.” It was agreed that the goods were shipped and invoiced to .appellee on March 19, 1936, and that the snuff was not mingled with the stock of goods each was carrying, but that it was placed in a separate part of their respective buildings or in separate rooms and when needed a case was .taken out of the shipment and checked off until' their store buildings burned. On September 16, 1936, the business houses of both appellees were destroyed by fire and the snuff which had not been used was completely destroyed. Neither appellant nor appel-lees carried insurance on the snuff, and the snuff was not invoiced as a part of the stock, and when same was destroyed by fire no claim was made by appellees against the insurance companies for the snuff. Gordon Roberts denied that he made statements to either Anthony or Stuckey to the effect that the goods should be sold by them as agents for appellant or that he had any authority to sell to them on consignment, but stated that his only authority was to make absolute sales of the snuff. Appellant objected and excepted to the admission of oral testimony offered by appellees to support their theory that the goods were ordered, shipped and received by them to sell on commission on the ground that such testimony contradicted the terms of the written agreements. Appellant requested an instructed verdict in its favor on the ground that the evidence showed under the written contract that the sale of the snuff by appellant to appellees was an absolute sale and purchase and not a conditional sale in any respect. This instruction was refused and the court submitted the cause to the jury over the objection of appellant under the following and other similar instructions: “If you find from a preponderance of the evidence in these lawsuits that the snuff in question was sold by appellant to appellees, and that the property then passed to appellees when they accepted it from the railroad company, it constituted an outright sale and the nature of the transaction was not changed merely because the property was not to be paid for until resold. If you should not find that to be true, but, on the other hand, you believe from the evidence in the case that the appellees in these cases were merely acting as the agent for the appellant, American Snuff Company, and permitted the property to.be placed in their places of business to be sold by them as agents of the American Snuff Company, and that the American Snuff Company did not part with the title to it, but retained the title, and retained tbe right to control it at any and all times after the delivery then, it does not constitute a sale, but merely a consignment of the snuff in question. . . .” We think the written contract was ambiguous and that the court correctly admitted the evidence tending to show the trade meaning of the words “to be paid for as sold” and that the instructions properly and correctly submitted to the jury the question of whether the sale was an absolute sale or a conditional sale. In instructing the jury the court was governed largely 'by the declarations of law announced by this court in the case of Sternberg v. Snow King Baking Powder Company, Inc., 186 Ark. 1161, 57 S. W. 2d 1057. The facts in the main are the same in the instant case that they were in the Sternberg Case and the declarations of law announced by the court -in that case are succinctly stated in syllabi 1, 2, 3, 4, 5, 6 of the Sternberg Case. We insert them here as declarations of law applicable to the facts in the instant case. “1. In construing contracts, the court must, if possible, ascertain and give effect to the intention of the parties as far as this can 'be done consistently with legal principles. “2. To arrive at the intention of the parties to a contract, the courts may acquaint themselves with the persons and circumstances and place themselves in the same situation as the parties who made the contract. “3. Evidence which tends to show the intention of the parties to a written contract, provided it does not contradict or Vary its terms, is admissible to show the real meaning of the words used. “4. In determining the meaning of a contract, the court must look at the whole contract and ascertain what the parties did thereunder and how they construed the contract. “5. Reservation of title in sale of merchandise may be implied from the contract, the term ‘ conditional sale ’ not being necessary. “6. Where baking powder was shipped by the manufacturer to a jobber, not to be paid for until sold by the jobber and insurance being carried by manufao turer, it will be implied that the title should remain in the'manufacturer. ’ In other words, we think the instant case is ruled by the Sternberg Case, supra. No error appearing, the judgments are affirmed.

John A. Fogleman, Justice. The cause of action involved on this appeal was commenced on December 16, 1977, when appellee First National Bank of Harrison filed a third party complaint against appellant Wanda Jo Walls Sims and her husband C. J. Sims for foreclosure of two mortgages in an action which had been instituted by a materialman to establish and foreclose a lien for materials and supplies. One mortgage was on a house in Robinwood II, a subdivision of Harrison, on property owned by C. J. Sims. The other mortgage was a second mortgage on a tract of land owned by appellant in Bergman, Arkansas. Appellant filed á counterclaim and cross-complaint in which she alleged that the mortgage on her property was obtained by duress and undue influence exercised by her husband, C. J. Sims, that the mortgage was obtained by appellee’s fraudulent representative that $15,000 in “new money” would be loaned by appellee if her property was mortgaged as additional security to the bank and that she was entitled to rescind the contract on the ground that no Truth in Lending disclosures regarding the transaction were provided to her. After a trial on the issues, appellant’s contentions were rejected by the chancery court and a decree of foreclosure entered. On this appeal, appellant asserts the following points for reversal: I THE COURT ERRED IN FINDING THE APPELLANT’S EXECUTION OF THE MORTGAGE WAS NOT OBTAINED BY DURESS AND UNDUE INFLUENCE AND THAT THE APPELLEE WAS NOT THE PROXIMATE CAUSE OF SAME. II THE COURT ERRED IN FINDING THAT THE MORTGAGE SHOULD NOT BE CANCELLED BECAUSE OF FRAUD ON THE PART OF THE APPELLEE BANK. III THE COURT ERRED IN FINDING THAT THE TRANSACTION IN REGARDS THE APPELLANT WAS EXEMPT FROM FEDERAL TRUTH IN LENDING LAWS. We shall treat the points for reversal in the order presented. Appellant alleged in a cross-complaint against First National Bank that the mortgage, on the tract of land owned by her should be set aside and removed as a cloud on her title because her signatures on the note secured by the mortgage and on the mortgage itself were obtained by duress and threats that her husband would be subject to criminal prosecution if those instruments were not executed. She also alleged that the note and mortgage were obtained by duress and fraud on the part of her husband, C. J. Sims, and that this duress and fraud were the direct results of threats by the bank that her husband would be subject to criminal prosecution. The final decree contained a recital that the court could not find any substantial evidence of duress on the part of plaintiff against appellant, although she may have been upset by the financial circumstances in which her husband, C. J. Sims, found himself and may have feared his being financially ruined. There was evidence that may well have been taken to establish probable cause for a criminal prosecution against C. J. Sims, and threats to prosecute would themselves have been a basis for cancellation on account of duress only if the charge was simuláted. See Union Life Ins. Co. v. Johnson, 199 Ark. 241, 133 S.W. 2d 841; Shattuck v. Watson, 53 Ark. 147, 13 S.W. 516; Marvin v. Marvin, 52 Ark. 425, 12 S.W. 875. C. J. Sims had been a customer of the First National Bank for many years. Numerous loans had been made to him and the relationship had been satisfactory. In March, 1976, the bank made a loan for $37,000 for construction money for a house to be built by Sims in Robinwood II for resale. The Square Deal Construction Company, in which Sims was a partner and Ronnie Paul, the managing partner, was to construct the house. After some $32,000 had been advanced on the construction money loan, Ron Shaver, the bank’s loan officer who had handled the loan, found, upon inspection in August or September, 1976, that the house was only one-third complete. It appeared that the bank had little or no security for its loan. The same construction company was, during the period advances were being made to Sims, doing extensive remodeling on the house located on the tract which was the separate property of appellant. This work was started in February, 1976, for a contract price of $17,000. Appellant had purchased this tract, known as the Bergman property, from C. J. Sims and his former wife, Patricia, in 1975, for $28,000, but the title was not transferred until March 17,1976, after C. J. Sims had been divorced from Patricia. Appellant paid $ 1,000 in cash and assumed a mortgage of $23,000 in favor of a savings and loan association. She made three monthly payments on this mortgage debt. It is not shown how she paid the rest of the purchase price, if she did. Appellant and C. J. Sims were married June 20,1976, two months after she had been divorced from her former husband, Thomas Walls, to whom she was married when she started negotiations with Sims, a real estate agent, for the purchase of the property. After appellant married Mr. Sims, the monthly mortgage payments were made from their joint bank account. Appellant had been employed by Airport Realty Company, a partnership in which both C. J. Sims and Ronnie Paul were partners. It seems that she was not employed after the marriage. Sims testified that he withdrew from Square Deal Construction Company in June, 1976, after a total of $32,000 had been advanced by the bank on the construction loan. Mr. Sims testified that this money went to Square Deal Construction Company, except for $7,000 paid for the lot on which the house was to be built. Appellant testified that Sims’ withdrawal from this partnership took place four days prior to her marriage to him. She stated that Mr. Sims agreed, at that time, to assume the $17,000 remodeling cost. C. J. Sims testified that when he withdrew from the partnership, it was agreed that Square Deal Construction Company would complete both the house in Robinwood II and the remodeling job. When confronted, Sims told Shaver that not all the money advanced by the bank had gone into the house in Robinwood II, but assured Shaver that he could get the house finished in six months. Appellant is in no position to assert that the mortgage was obtained by duress because of fear of prosecution of her husband because there is no evidence that anyone connected with the bank made any threat to her to prosecute him or that a representative of the bank induced her to execute the mortgage by any threat of such prosecution. Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326, 144 S.W. 198, Ann. Cas. 1914A 511. Appellant did not testify that such a threat was communicated to her by the bank or by her husband. C. J. Sims testified in a deposition introduced into evidence that he did not believe that he ever revealed the threat of prosecution to her. There is simply no evidence that any such threat was ever communicated to her by anyone. It was not contended at the trial, or here, that the agreement under which appellant signed the mortgage constituted the compounding of a felony. An obligation given in settlement of a civil liability arising from a wrong which is both public and private is not invalid because the offender is also subject to criminal prosecution. Goodrum v. Merchants’ & Planters’ Bank, supra. The question here then is whether appellant is entitled to a cancellation of the mortgage on her separate property because of duress by her husband. To some extent, this question is dependent upon whether Mrs. Sims executed the mortgage out of a sense of duty to her husband or by reason of his threats. In order to disturb the chancellor’s findings, we must be able to say that, when all the relations of the parties toward each other and the details surrounding the entire transaction are considered, they were clearly against the preponderance of the evidence. Gardner v. Ward, 99 Ark. 588, 138 S.W. 981. This we cannot do. Neither can we say that appellant met her burden of proof that she was compelled, not merely persuaded, to do what she did. Oberstein v. Oberstein, 217 Ark. 80, 228 S.W. 2d 615. We could not say that she did meet her burden unless we accept her testimony as credible and disregard evidence tending to lead to a contrary conclusion, and we are unable to do this. In considering this question, it is significant that Mrs. Sims made no claim that the contract was entered into under duress until this foreclosure suit was filed. Silence or acquiescence in the contract for any considerable length of time amounts to ratification. See Oberstein v. Oberstein, supra. See also, Pirtle v. Pirtle, 166 Tenn. 180, 60 S.W. 2d 172 (1933). The mortgage foreclosure was filed on December 16, 1977. On January 3,1978, appellant filed an answer that was simply a general denial. Her cross-complaint in which she first raised the issue of duress was filed on February 16, 1978. The mortgage had been executed on June 17, 1977, so for eight months, the duress under which appellant claims to have acted was a well kept secret. It is significant that she did not mention or in anywise indicate to the bank’s officers and employees or the notary public who took her acknowledgment that she was not acting freely and voluntarily. See Rowley v. Rowley, 144 Okla. 157, 290 P. 181 (1930); Wallach v. Hoexter, 17 Abb. N.C. (N.Y.) 267 (1886); Marston v. Brittenham, 76 Ill. 611 (1875). The bank’s loan officer testified that she came into the bank two hours before the arrival of her husband on the date the mortgage was executed at the bank. He testified that, at the time of closing, the atmosphere was calm and casual like a regular, normal closing. Mrs. Sims testified that she inquired why the mortgage debt matured in only six months, but she does not say that she made any other inquiry or protest. Appellant and her husband were actually separated for more than a week in August, 1977. Her failure to complain as soon as the coercion was eliminated is inconsistent with her complaint in the foreclosure action. Marston v. Brittenham, supra. See also, Pirtle v. Pirtle, supra. In attempting to meet her burden of demonstrating error in the holding of the chancery court and of showing that she had met her burden of proof on this issue, appellant relies upon her own testimony and that of her husband. He testified that, commencing two weeks before he obtained her signature, he regularly discussed the matter of her signing the mortgage and threatened to leave her. She testified that her husband, for more than a week, began talking to her about the mortgage at breakfast, and again whenever he came back home, reminded her of the duties she owed him, accused her of gross disloyalty and threatened to leave her; that she had wanted to talk to her lawyer but was unable to reach him; that she had been married and divorced twice, and feared that her third marriage was beginning to fall apart; and that she had a sick child and an acute need for security. She further relied upon the fact that she gained no financial advantage by executing the mortgage and evidence tending to show that the bank found itself in the position of having a loan of $40,000 outstanding for which it had no collateral, and the fact that Shaver, an officer of the bank, knowing that Mr. Sims was not applying the loan proceeds to the construe tion of the house for which the loan was made, made final disbursements totaling $5,000. Duress by her husband may well be sufficient to invalidate a mortgage executed by a wife to a third party. Duress consisting of threats exciting a fear of such a grievous wrong as death, great bodily injury or unlawful imprisonment, would probably justify a cancellation of a contract if the party, acting under such threats, moved to cancel it promptly. Burr v. Burton, 18 Ark. 214; Duncan v. Hensley, 248 Ark. 1083, 455 S.W. 2d 113. See also, Rowley v. Rowley, supra. The defense of duress was somewhat enlarged in Perkins Oil Co. v. Fitzgerald, 197 Ark. 14, 121 S.W. 2d 877, where it was asserted against the person making the threats; the person alleging that he acted under duress was totally disabled from future employment, and the coercion which caused him to sign a release of liability for his disabling injury was directed against his step-father’s future employment, the loss of which would have seriously affected his mother, himself and the other members of his family. See Mississippi River Fuel Corp. v. Hamilton, 200 Ark. 475, 139 S.W. 2d 404. Even under the Fitzgerald view, it must be shown that there was a threat of some grievous wrong to establish duress. The threat of a husband to abandon his wife if she does not execute a mortgage on her separate real estate is not sufficient basis for cancellation of the mortgage unless it is made with the knowledge and consent of the mortgagee or the mortgagee knew at the time of the execution of the mortgage that it was executed by reason of such a threat by the husband. Line v. Blizzard, 70 Ind. 23 (1880); Luna v. Miller, 171 Okla. 260, 42 P. 2d 809 (1935); State v. Scoggins, 107 N.C. 959, 12 S.E. 59 (1890); Marston v. Brittenham, supra; Wallach v. Hoexter, supra. See also, Pirtle v. Pirtle, 166 Tenn. 180, 60 S.W. 2d 1972 (1933); Donahue v. Mills, 41 Ark. 421; Meyer v. Gossett, 38 Ark. 377. This is but a facet of the general rule that a mortgage executed by a wife cannot be avoided because it was procured by duress practiced by the husband, in the absence of a showing that the mortgagee participated in or had knowledge of it. Harper v. McGoogan, 107 Ark. 10, 154 S.W. 187. See also, Hale v. Hale, 245 Ky. 358, 53 S.W. 2d 554 (1932); Pirtle v. Pirtle, supra; Annot., 4 ALR 864, 868. The only argument that appellant advances as a basis for knowledge of, or notice to, appellee of duress by C. J. Sims is that the bank was on notice of the relationship between Sims and his wife, and, because of the fact that there was no financial reason for her to enter the transaction, and she had nothing to gain and everything to lose by it, the bank was under the duty to inquire as to the voluntariness of the transaction. This argument by appellant is unconvincing and no authority for it is cited, so we will not consider it extensively. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606. We should mention, however, that there is no evidence that the bank knew of any marital problems of the parties, at least part of which arose from the arrest of Mr. Sims’ son for some crime, for which he is serving a life sentence; that Sims testified that he assured his wife everything could be worked out in a few months; that Sims probably had more money invested in the property than appellant, who could not account for more than $3,000 of her own money in its acquisition; that appellant testified that if it were to be assumed that his investment in the property was from $17,000 to $22,000, in contrast to her $3,000, it was not unbelievable that he would ask her to put it up as collateral; and that she wanted him to have a chance to clear himself with the bank. Appellant had the burden of proving duress by clear, cogent and convincing testimony. Duncan v. Hensley, 248 Ark. 1083, 455 S.W. 2d 133; Davidson v. Bell, 247 Ark. 705, 447 S.W. 2d 338. This she failed to do. Because of the relationship of husband and wife, appellant’s burden of proof may not have been as great on the question of undue influence, but she was not relieved of the burden of showing the bank’s knowledge or participation. We cannot say that she was entitled to cancellation of the mortgage on the ground of undue influence, because there is no evidence that the bank knew of, or participated in, the influence practice upon her. Harper v. McGoogan, supra. See also, Marston v. Brittenham, supra. Appellant contends, however, that she was induced to sign the mortgage by the fraudulent representation of the bank’s officer that the bank would loan her husband $15,000 in addition to the existing debt. She admits that the evidence is conflicting on this point. The testimony shows that C. J. Sims’ outstanding debt to the bank at the time the mortgage was signed consisted of $37,000 secured by the mortgage on the house under construction and $15,000 represented by unsecured notes. Ron Shaver testified that he did not promise to lend, and that Sims did not request, any additional money. Mrs. Sims testified that she had told Shaver her understanding was that $15,000 additional money would be advanced to finish the house in Robinwood II and that Shaver had said that with six months and $15,000, C. J. Sims could finish the house. She admitted, however, that she had previously testified in a deposition that the $ 15,000 was to be used for an investment by her husband in an industrial park. C. J. Sims testified that he understood that the $52,000 note secured by the mortgage included an additional $ 15,000, and that this was mentioned at the time the mortgage was signed, but that he had told Shaver that he did not need it for a week or two and that he did not want to pay interest on it in the meanwhile. Mr. Sims said that he first learned, through a subsequent conversation with Shaver, that the additional $15,000 would not be advanced two weeks later. Yet, on cross-examination, Mr. Sims testified that he had examined all the notes and mortgages introduced and that there was no question that he owed the money. Deborah Keef, a loan secretary employed by the bank, testified that C. J. Sims did ask Shaver about additional money, separate from the transaction involving the mortgage which had just been closed. She said Shaver said that he could not disburse any more funds until he saw how this particular transaction worked out. She recalled that Shaver had used the words “wait and see.” Shaver said that there had been no discussion of an additional $15,000 up until the closing and that he did not recall the request for additional funds about which his secretary had testified. The chancellor found that the signing of the instruments on which the suit was brought was for the purpose of extending the existing loan for six months to give Mr. Sims an opportunity to finish the house and sell it for a sum that would at least reduce the indebtedness. A mortgage by a married woman to secure her husband’s debts, whether they be existing debts or debts to accrue, is valid and enforceable. Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326, 144 S.W. 198, Ann. Cas. 1914A 511; Collins v. Wassell, 34 Ark. 17; Scott v. Ward, 35 Ark. 480. See also, Ocklawaha River Farms Co. v. Young, 73 Fla. 159, 74 So. 644 (1917). Consideration for the mortgage need not pass to the wife as consideration to the husband is sufficient. Scott v. Ward, supra. See also, Gillespie v. Simpson, _ Ark. _, 18 S.W. 1050. An extension of time for the payment of the husband’s debt is sufficient consideration. Scott v. Ward, supra; See also, United States Banking Co. v. Veale, 84 Kan. 385, 114 P. 229 (1911); Hunt v. Central Savings Bank & Trust Co., 76 Colo. 480, 231 P. 60 (1925); Gibson v. Sheen, 128 Neb. 728, 260 N.W. 186 (1935). The question of fraudulent representations resolves itself into one of credibility on which we must defer to the superior position of the chancellor. Appellant also contends that the chancellor erred in holding that the transaction was exempt from the requirements of Federal Truth in Lending Laws. She makes no contention that the act applied insofar as C. J. Sims is concerned, or that the debt was not primarily a commercial one, as to him. It is her position that, in the absence of duress, undue influence and the promise of the loan of additional money, her mortgage of her separate property could only be attributable to her personal devotion to her husband and concern for his welfare. Because of this, she says that, so far as she was concerned, the transaction became one of consumer credit as defined by 15 USC 1602. Under that section, a consumer credit transaction is one in which the money, property or services which are the subject of the transaction are primarily for personal, family, household or agricultural purposes. Appellant contends that her position is that of an accommodation maker or surety, that the only service or benefit was to her husband and that there could be no more personal or family purpose for entering into a transaction than saving one’s husband from financial ruin. Appellant relies upon Cantrell v. First National Bank of Euless, 560 S.W. 2d 721 (Tex. Civ. App., 1977). We find no similarity in that case and this, because the loan in Cantrell was made for the purchase of a motor home and the jury there specifically found that the purchase was not for business or commercial purposes and that there was no evidence that the motor home was acquired for anything other than the dwelling of the daughter and son-in-law of the borrower. We agree with appellee, the chancellor, and the United States District Court for the Eastern District of Louisiana that it is the use of the money, property or services which is the subject of the underlying transaction, and not the nature of the property given as security, that controls. Sapenter v. Dreyco, Inc., 326 F. Supp. 871 (1971), aff'd. per curiam 450 F. 2d 941 (5 Cir., 1971), cert. den. 406 U.S. 920, 92 S. Ct. 1775, 32 L. Ed. 2d 120; Gerasta v. Hibernia National Bank, 411 F. Supp. 176 (1976). Similarly, the subjective motivation of the mortgagor is not controlling. The decree is affirmed. Harris, C.J., not participating.

Ernie E. Wright, Chief Judge. This case was appealed to the Arkansas Supreme Court and transferred to the Court of Appeals pursuant to Rule 29(3). The Appellant Jones was arrested on October 9, 1977 and on November 16,1977 was charged by information with two counts of aggravated robbery and two counts of theft of property. On February 23, 1978, an amended information was filed charging that Jones had previously been convicted of at least two felonies and requesting that sentences should be increased as provided by statute. He remained in custody from October 9, 1977 until March 28, 1978 when he was tried before the court, with jury waived, on two of the felony counts and sentenced to thirty-five years in prison. From the time of his arrest until trial on the two felony counts Jones was represented by private counsel and thereafter by the Public Defender. After his conviction, he was sent to the penitentiary to serve his sentence. On October 2, 1978, Jones was arraigned on the other two felony counts which had been severed from the counts previously tried. He was tried before the court, with jury waived, on the remaining two counts on January 31, 1979, after his motion to dismiss for lack of speedy trial had been overruled. He was convicted on both counts and sentences of ten years and three years were imposed. The sole issue on appeal is whether appellant was denied a speedy trial in accordance with Arkansas Rules of Criminal Procedure and Constitutions of the United States and Arkansas. As the Rules of Criminal Procedure were designed by the Supreme Court to comply with constitutional requirements we need look only to the rules and Arkansas Supreme Court decisions to determine the issue. The appellant was tried on the charges now in issue on January 31,1979 following his arrest on October 9,1977. The terms of the Pulaski Circuit Court began on the fourth Monday of September and the first Monday of March. Thus, his trial was within the second full term of the court following his arrest. Appellant relies on the maximum time of nine months prescribed by Rule 28.1(a), after allowing for exclusion of time periods as provided by Rule 28.3, and if the nine months provision were here applicable, his contention would be well taken. However, the case falls within the scope of Rule 28.1 (b) which provides: Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. In this case the defendant was tried during the second full term of the court following the term in which he was charged. The In Banc decision in Wade v. State of Arkansas, 264 Ark. 320, 571 S.W. 2d 231 (1978), settles the issue here. The court pointed out that where the defendant was not incarcerated incident to the pending charges, but was serving a prior sentence, that Rule 30.1 provides: (a) • • • (b) An incarcerated defendant not brought to trial as provided by Rules 28.1 — 28.3 shall not be entitled to an absolute discharge pursuant to subsection (a) hereof but shall be recognized or released on order to appear. The Wade decision went on to say: Therefore, it is ridiculous to contend that he should be “recognized or released on order to appear”. That provision would apply to a defendant who is being held in jail pending trial. However, should it be found by the trial court that petitioner is entitled to relief under Rule 28.1 (a), he would not be entitled to have the charges against him dismissed, but Rule 30.1 (c) would apply and the time for trial would be computed pursuant to Rule 28.1 (b) which provides: any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as authorized in Rule 28.3. In Wade the court in applying the rules relating to speedy trial treated a situation in which the defendant is serving a sentence and not being held in jail on a pending charge as the equivalent of the defendant being held to bail or at liberty, since his confinement was not under the pending charge. We hold that Rule 28.1 (b) applies under the facts in the case before us and that appellant’s right to a speedy trial has not been violated. Affirmed. Newbern and Hays, JJ., dissent.

Lyle Brown, Justice. This is a zoning case. The appellants are J. Cecil Tate and wife and appellee is the City of Malvern. Appellants were unsuccessful in .having the subject property rezoned from residential to business classification. The chancery court held that the planning commission’s refusal to reclassify the property was not unreasonable, capricious, or arbitrary. The landowners here contend that the trial court’s ruling was against the preponderance of the evidence. Cecil" Tate has for a number of years held the Ford franchise for Malvern. It is his desire to move from the congested area of the business district and construct a modern retail outlet on the outskirts of the city. For that purpose he purchased an eight-acre tract on U. S. Highway 270 between Malvern and Interstate 30. The Tate acreage is surrounded by, and included in, a substantial tract of land which was zoned in 1960 as residential. In 1958 Malvern obtained the services of the city planning division of the University of Arkansas and after a two-year study a zoning plan for the entire city was adopted. A few years later the then owner of the eight acres sought unsuccessfully to have it reclassified commercial. Mr. Tate thereafter, in 1964, bought the property. Appellants presented a very persuasive cas.e for reclassification. It was shown that the votes by the planning commission and the city council, whereby rezoning was denied, were close. There are three water mains crossing the eight acres at the back and those easements would there constitute a problem in the construction of homes. A qualified real estate broker and appraiser testified that the highway frontage was most desirable for commercial use and that the rear of the Tate property was low. It was shown that a bowling alley and a dairy bar are located within the residential zoning, they having been constructed prior to the classification. They are permitted to operate as nonconforming uses. A former owner of the Tate tract was of the opinion that the back part was too low to be sewered. Highway 270 will be a major entrance to Malvern off of Interstate 30. Mr. Tate produced a very attractive plan for his proposed construction. Those plans, involving an expenditure of over $125,000, have been approved by Ford Motor Company. Looking at the other side of the coin, we find considerable evidence favoring the action of the city in denying rezoning'. We think the most significant fea ture in that respect is the physical development of properties adjacent to the Tate tract. It is bordered on the north by the city park and a reservoir into which water is pumped from the Ouachita Biver. On the south side there are two residential subdivisions. Brownwood Subdivision contains thirty-three residential lots and at the time of trial contained twenty-nine residences. Immediately south of Brownwood is Biver Heights Subdivision, containing twenty lots, most all of which have been developed. On the west across Highway 270 and in front of the Tate tract is Edgewoocl Subdivision. It contains some forty-seven lots which are substantially developed. Finally, on the east side the Tate tract is bordered by a street, a railroad, and three residences. Some fourteen pictures of homes were introduced. They are modern, built mainly of brick, and several have double carports. The shrubs and lawns reflect pride of ownership. A plat of all the described lots in the area bordering the subject property reveals eighty-one separate owners. The few lots still available in Edge-wood are described by a real estate agent as being priced at $3500. Among the eight witnesses who testified in opposition to rezoning were four men who served on the planning commission. Three of them are homeowners in the area in question. Two witnesses were city councilmen and another was mayor at the time the Tate petition was denied. The mayor also resides in the affected area. The points sought to be established by the different witnesses may be summarized as follows: The zoning plan was two years in the making and under the supervision of professional planners from the University of Arkansas; during that period the planning commission met once a month; the entire area was inspected and traffic counts, door-to-door inquiries, and land use maps wrere utilized; since the adoption of the plan there has been no commercial development in the area; the Tate property is as suitable for residential as it is for any other use; rezoniug of the Tate propeiiy will be spot zoning and will devalue the residences; the city council leaned heavily on the judgment of the planning commission; homes were built on the assumption that they would be protected from commercial development; and once the Tate property is rezoned there is no assurance that the ordinary nuisances accompanying the operation of the average garage will not develop. A total of twenty witnesses testified, many of them extensively. We have fairly summarized the meat of the record. We have not detailed all the factors about which the witnesses testified, but that does not mean that we have overlooked them. We would point out additionally that the chancellor had an unusual problem in judging the weight and credibility of the testimony of a number of witnesses. That was because some of them had at one time favored rezoning of the disputed tract and later changed their thinking. Then there was the problem of the possibility of a conflict of interest as to members of the planning commission who resided in the described residential areas. Of course the chancellor was at a vantage point in ferreting out the answers to those problems. We recently had occasion to recount some fundamental rules of law applicable generally to zoning cases. Marling v. City of Little Rock, 245 Ark. 876, 435 S.W. 2d 94 (1968). The burden is on the landowner to preponderantly show, at the trial level, that the action of the city was arbitrary; on appeal we determine whether the trial court’s finding was contrary to a preponderance of the evidence; home owners who have relied on residential zoning are entitled to consideration and the use of a particular tract may bo reasonably restrained so as not to cause them injury; and rezoning cannot be justified solely on the ground that it is necessary to put a particular tract to its most remunerative use. Another rule of law comes into play because the Tate tract is surrounded by property zoned residential. That means that he is asking for spot zoning. Therefore an additional burden of proof is placed on the applicant. The decided weight of authority is found in Yokley, Zoning Law and Practice, § 8-4, third edition (1965). It is there stated that the council can so amend a zoning ordinance when the character of a zoned area 1ms become so changed that a modification is necessary to promote public health, morals, safety, and welfare; but mere economic gain to the owner of a comparatively small area is not sufficient cause to amend. Applying the recited law to the record before us, we are unable to say that the chancellor’s finding that the action of the city was not arbitrary is against the preponderance of the evidence. It is possible that the full development of Highway 270, as presently located, as the connecting link between Malvern and Interstate 30, may eventually change the character of the described subdivisions; nevertheless, we cannot base a finding on that unpredictable event. Affirmed.

Holt, J. This appeal comes from a decision of the Sebastian circuit court, sitting as a jury, in which there was a finding and judgment for defendant, appellee here. The sole question for our consideration, and one on which this case turns, is the construction of a contract, which is in writing, evidenced by letters and a telegram. The facts out of which the contract grew are sub-, stantially as follows: On June 15, 1934, appellee wrote • appellant in part as follows: “Please quote us.prices on 50 M and 100 M lots, on the 100 M with the agreement that we take this out in two shipments. The first shipment at once and the second in six months. We must have the first shipment of merchandise in here not later than July 20th, so please give us these prices as soon as possible.” On June 25, 1934, appellee answered in part as follows: “Just in receipt of letter of 22nd, in which you quoted us prices on Swamp Chill and Fever Tonic Cartons. We note that you only gave your price on 50 M. We asked you to give your price on 50 M and 100 M lots, with the understanding that we can take 50 M out at once and 50 M in six months. We also asked you what delivery you could make on these cartons. We would like part of the cartons not later than the middle of July.” Again on June 28, 1934, appellant wrote defendant in part as follows: “We can execute delivery on an order of this nature within about two weeks after receipt of your order. If you desire these cartons by the middle of July we can easily have them for you by that time if you will send us your order along the latter part of this month. In these lots you will be permitted to contract, all to be taken out within six months’ time.” On July 2, following, appellee wired appellant as follows: “Enter order One Hundred Thousand Chill Tonic cartons, Fifty Thousand to be shipped at once.” Following receipt of this telegram on July 2nd, appellant prepared the “contract order” covering the merchandise as follows: “Charge to Swamp & Dixie Laboratories, Inc., 301-11 Rogers Ave., Fort Smith, Arkansas. Contract Order: Ship 50 M by July 15, balance as ordered within six months. 100 M PTL ‘Swamp Chill and Fever Tonic’ cartons @ $3.35 M, $335.” Appellant writes appellee again on July 5, 1934, in part as follows: “We are inclosing our acknowledgment of your valued order recently favored us for 100 M printed ‘ Swamp Chill and Fever Tonic ’ cartons, the cost of which will be in the neighborhood of $335. When the manufacture of this order has been completed, the mer- cliandise is to be placed in storage — 50 M to be shipped by July 15th, and the balance to be consummated within six months from date of first shipment. Immediately let us hear from you if the order as written up and acknowledged has not been done in accordance Avith your instructions.” The first shipment of 50 M cartons made within the time specified, July 15, 1934, amounted to $168.84, Avhicli Avas paid by appellee. The balance of the cartons Avere never shipped and nothing said or done by either party about them until January 20, 1936, more than 18 months after the sale Avas made, Avhen appellant Avrote appellee as folloAvs: “In checking our contract and split shipment orders, Ave find that Ave still have on hand 52,650 ‘Sivamp Chill and Fever Tonic’ cartons on yonr old contract order dated July 2, 1934. This order Avas accepted on the basis of making complete delivery within six months after date of first shipment, which Avas made on July 17, 1934; since that date Ave had received no release orders from you. In as much as this contract should have been completed a long time ago, Ave are wondering if you Avill not be good enough to alloAv us to make shipment of the above mentioned cartons at this time. . . .” On January 22, 1936, appellee replied to the above letter in part as follows: “We did not know that we had any of these cartons on hand. We placed this order Avith you on July 2, 1934, and asked you to make shipment of 50 M cartons at once, and that Ave must' have the cartons not later than July 16th. The balance of the order Avas to be taken out in six months’ time. As the cartons were not shipped to us on the specified date, Ave thought that xve had received all of our cartons. . . . We gave you specific shipping instructions Avhen Ave sent you our order on July 2,1934, so Ave do not think it is any fault of ours that you still have the cartons on hand. The balance of the cartons should have been shipped the first part of 1935.” Again on January 25, 1936, appellant Avrote appel-lee in part as follows: “We are replying to your letter of January 22nd with reference to the ‘Swamp Chill and Fever Tonic’ cartons Ave have on hand on your contract dated July 2, 1934. This order was entered and accepted on the basis of shipping 50 M cartons by July 15, 1934, and the balance as ordered out, all within six months from the date of the first shipment. ’ ’ Additional subsequent correspondence passed between the parties which is not necessary to repeat here. The court below made the following findings of fact and declarations of law: “3. The court finds that under the contract between .the parties the plaintiff agreed to sell and deliver to defendant at Port Smith, Arkansas, 100 M cartons, at $3.35 per Mi That 50 M were to be shipped by plaintiff by July 15, 1934, and the balance within six months. 2. That, the first shipment was made by plaintiff to the defendant at Port Smith, Arkansas, as specified in said contract, but that the plaintiff failed to ship the balance of the cartons within the time specified and made no tender or offer to ship said cartons until January 20, 1936, on which date plaintiff wrote defendant asking it to consent to shipment being made at that time, and that defendant refused to do so.. Under the facts the court declares that'the plaintiff is not entitled to recover herein and that the complaint should be dismissed with costs in favor of the defendant.” Since the contract is evidenced by writings, it was the duty of the trial court to construe it, declare its terms and the obligations of the parties under it. United States Fidelity & Guaranty Co. v. Sellars, 160 Ark. 599, 255 S. W. 26. It is undisputed that 100 M cartons were ordered by appellee, that 50 M were shipped according to contract, that appellee never at any time gave shipping instructions for the delivery of the remaining 50 M cartons, nor was any demand made by appellant upon appellee to take them out until in January, 1936. Was it the duty of appellee, under the terms of the contract, to give appellant instructions for the shipment of the remaining 50 M cartons? We hold that it was not necessary for appellee to do so and that in the absence of directions from ap-pellee to appellant to ship out the remaining cartons within the six months’ period, it was the duty of appellant to ship the goods within that period, if appellee is to be bound by the contract. Appellant in its letter of January 25, 1936, placed the following interpretation upon the contract: “This order was entered and accepted on the basis of shipping 50 M cartons by July 15,1934, and the balance as ordered out, all within six months from the date of the first shipment.” In the case of Sydeman Bros., Inc., v. Whitlow, 186 Ark. 937, 56 S. W. 2d 1020, the court said: “It is a well established principle of law that, in the interpretation or construction of contracts, the construction the parties themselves have placed on- the contract is entitled to great weight, and will generally be adopted by the courts in giving effect to its provisions. .It is to be assumed that the parties' to the contract knew best what was meant by its terms, and are the least liable to be mistaken about its intentions.” The rule is well settled that where the contract provides that the goods are to be shipped within a certain period, the time of shipment is material and it is not a compliance with the contract if the goods are shipped before or after the time specified. The general rule seems to be as stated in 55 C. J., p. 341, as follows: “Where the contract provides that the goods are to be shipped within a certain period, the time of shipment is usually regarded as material, and it is not a compliance with the contract if the goods are shipped before or after the time specified, unless the terms of the contract and the surrounding circumstances known to the parties- show a different intention. ” Since the contract provides that appellant must ship 50 M by July 15th and the' balance as ordered out within six months, appellant was required to ship the balance of the cartons, 50 M, within six months after July 15th, but gave appellee the option to order the cartons shipped at any time within said period of six months if desired. The rule applicable is stated in 55 C. J., p. 349, as follows: “If delivery is to be made on or before a certain date at the option of the buyer, the seller has until such last date to make delivery, in the absence of any demand by the buyer, and the failure of the buyer to exercise his option is equivalent to demand for delivery on the last date. ’ ’ Again tlie rule is stated in 23 R. C. L., j). 1364, as 1‘ollows: “But where the contract provided for delivery at the buyer’s option by giving a certain notice, at any time during a certain month, it has been held that the giving of notice by the buyer was not a condition precedent to.the attachment of a duty on the seller’s part to deliver, and that, if no notice was given in the exercise of the option for an earlier delivery, it was the duty of the seller to make delivery on the last day of the month.” In Rogers-Pyatt Co. v. Starr Piano Co., 212 App. Div. 792, 209 N. Y. S. 733, in reversing the case on appeal and rendering judgment for the buyer, the court said: “The learned trial court gave judgment for the plaintiff upon the theory that ‘the defendant breached by not furnishing shipping instructions.’ 'But this is erroneous, as no shipping instructions were required to be given by defendant. The contract itself provided that the goods were to be shipped to ‘Starr Piano Co. at Richmond, Indiana,’ and all that plaintiff had to do was to put the shellac f.o.b. on cars at New York, before the expiration date of the contract, consigned to defendant at Richmond, Indiana, and it would have complied with the terms of the contract. British Aluminum Company, Ltd. v. Trefts, 163 App. Div. 184, 148 N. Y. S. 144.” We think' that the case of British Aluminum Co., Ltd. v. Trefts, supra, is also in point, in which, among other things, the court said: “It is contended on the part of the respondent that the plaintiff was under no obligation to deliver or to tender delivery until the defendant specified a time for delivery of the remaining 13 tons of aluminum, which concededly he never did. The parties did not undertake that the vendor need not ship the goods until it received shipping directions from the vendee. The provisions with respect to shipments earlier than the final date were for the benefit of the vendee, and he was required, not to give shipping instructions essential to enable the vendor to make a delivery, but to specify dates for delivery in so far as he might desire a delivery before the 31st day of December, 19.11. The vendor had the right, and I think that it was its duty, if it intended to hold defendant, to deliver or tender delivery of .the remaining 13 tons of aluminum on the 3'lst day of December, 1911, for the legal effect of the contract was to call for delivery thereof on that day. The vendor needed no shipping instructions to enable it to deliver the aluminum, which was to be consigned to the defendant at Buffalo, and to be delivered f.o.b. at the city of New York; and if it did, it should have asked for them if it desired to perform and to put the vendee in default. The contract merely gave the vendee the right to require delivery of part or all' the aluminum prior to the final date of delivery. In so far as delivery was not required to be made before that date, the vendor, if it desired the benefits of its contract, was at liberty, without awaiting a request from the vendee, to deliver the aluminum f.o.b. at New York City, consigned to the vendee at Buffalo, and the failure of the vendee to demand delivery did not, in my opinion, excuse the vendor from so delivering or tendering delivery of the remaining 13 tons.” We feel that it is unnecessary to cite additional authority. We hold that the contract provided that shipment should he made to appellee within six months from July 15, 1934, and that it gave it the option to order the balance of the cartons prior to the expiration of the six months ’ period and that under its terms it was not necessary for appellee to give shipping instructions to appellant to enable appellant to make the shipment, but that appellee did have the option to specify dates if it desired delivery before the expiration of the six months’ period. Under the contract appellant did not need shipping Instructions to enable it to deliver the cartons. On the Avhole case, we conclude that the findings and judgment of the trial court should not be disturbed, and we accordingly affirm.

George Rose Smith, Justice. When the annual school elections were held in Union county on March 14, 1978, the three school districts involved in this case were separate districts. The voters of the Lawson District approved a 40-mill school tax, those of the Urbana District approved a 45-mill tax, and those of the El Dorado District approved a 58-mill tax. Later in March the school boards of the Lawson and Urbana Districts, being unable to maintain the “A” rating required by the Quality Education Act, petitioned the County Board of Education to abolish those districts and annex their territory to “another district.” (Ark. Stat. Ann. § 80-4602 [Supp. 1979].) In April the county board approved the two petitions, dissolved the two districts, and annexed their territory to the El Dorado District. In November the county quorum court levied school taxes for each of the three districts at the rate approved in the preceding March school election. When the time came for the county clerk to extend the taxes on the tax books, for collection in 1979, the clerk proposed to extend them at the millage rates approved in the school elections and levied by the quorum court; that is, 40 mills for the former Lawson District territory and 45 mills for the former Urbana District territory. The El Dorado District, insisting that its 58-mill tax be levied, brought this suit for an injunction and declaratory judgment requiring the county clerk and the collector to extend and collect the taxes in both the former districts at the El Dorado rate. This appeal is from a decree requiring that the 58-mill tax be levied. There appears to be no constitutional provision or statute applicable to this particular situation. It is, however, fundamental in our law that the property owners within a school district have the right to vote on the millage rate every year at the school election. Const. Amendment 40; Ark. Stat. Ann. § 80-602 (Repl. 1960). In 1978, when the Lawson and Urbana School Districts still existed, their electors exercised that right and fixed the rate of taxation for all property within the districts. It was only later on that the two small districts were annexed to the El Dorado district, where other electors had voted for a somewhat higher millage rate. The quorum court’s decision to levy the school taxes at the rate approved by the electors in each district was reasonable and just. Needless to say, the tax rate for years subsequent to 1978 is to be determined at the annual El Dorado School District elections, in which all the property owners will be entitled to vote. Reversed.

Conley Byrd, Justice. Appellant Danny Ray McDonald was charged with aggravated robbery in violation of Ark. Stat. Ann. § 41-2102 (Repl. 1977) and with being a habitual offender, Ark. Stat. Ann. § 41-1001 (Repl. 1977). The jury found him guilty as charged and fixed his punishment at imprisonment for 16 years and 2 months and a fine of $6,080. For reversal he raises the issues hereinafter discussed. The proof on the part of the State, stated in the light most favorable to the jury’s verdict, shows that appellant took $80 from the office area of Gene’s Family Market. Eddie Caraway, an employee in the store, gave chase until appellant pulled a knife from his back pocket. Other witnesses, including a friend and an accomplice, furnished direct and circumstantial evidence identifying appellant as the person who fled from the pursuit of Caraway. With respect to the offense of aggravated robbery, Ark. Stat. Ann. § 41-2102 (Repl. 1977) provides: “(1) A person commits aggravated robbery if he com mits robbery as defined in section 2103 [Ark. Stat. Ann. § 41-2103 (Repl. 1977)] and he: (a) is armed with a deadly weapon, or represents by word or conduct that he is so armed, . . . Ark. Stat. Ann. § 41-2103 (Repl. 1977) provides: (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatenss to employ physical force upon another.” Under the proof presented, we must hold that the evidence is sufficient to sustain the jury’s finding that appellant was guilty of aggravated robbery. We can find no merit in his contention that he was entitled to have the jury instructed on theft pursuant to Ark. Stat. Ann. § 41-2203 (Repl. 1977). Under Ark. Stat. Ann. § 41-2203, supra, “a person commits theft of property if he knowingly takes or exercises unauthorized control over . . . the property of another.” However, to prove robbery the State only has to show that there was an intent to commit a theft. Consequently, the offense of theft of property is not a lesser included offense in a charge of the crime of burglary. See Ark. Stat. Ann. § 41-105(2) (Repl. 1977). Appellant is correct in his contention that the trial court erred in submitting the issue of a habitual offender, Ark. Stat. Ann. § 41-1001 (Repl. 1977), to the jury. That statute comes into play only upon a showing of “more than one” previous conviction of a felony. The State’s proof here only showed one prior felony conviction. The State, in its brief here, acknowledges the error but contends that the error only goes to the years of imprisonment and not to the fine. With the contention as to the fine, we cannot agree because without the habitual offender charge, the State would not have been in position to show a previous conviction for purposes of enhancing either the punishment or the fine. Accordingly, the error can be cured by reducing appellant’s punishment to the minimum of 5 years imprisonment pursuant to Ark. Stat. Arm. § 41-901 (l)(a) (Repi. 1977). The judgment will be so modified and affirmed unless the State before the issuance of the mandate files an election to retry appellant. Modified and affirmed.

Lyle Brown, Justice. Marion Power Shovel Co. was the plaintiff in the trial court. Harold Huntsman, appellee and cross-appellant, was the defendant and counterclaimant below. Marion sued for parts supplied to Huntsman which were used to repair a power shovel with a dragline attachment. Huntsman countered with a complaint for breach of warranty concerning the original construction equipment, it having been manufactured by Marion. Huntsman obtained judgment (the trial court sitting as a jury) under his counterclaim and Marion appeals. Huntsman cross-appeals, alleging insufficiency of damages. The numerous points on appeal will subsequently he enumerated and discussed. Harold Huntsman, a large-scale farmer in the Bald Knob area, was interested in purchasing a machine and attachments to be used in ditching and draining 1000 acres of lowland preparatory to cultivation. The land had previously been cleared by the use of a cutting blade attached to a tractor, by means of which trees ■were cut level with the ground. Huntsman contacted T. F. Shamel, who operated Standard Equipment and Sup-ply Co. in North Little Rock. Shamel handled Marion Power Shovel products. According to Huntsman, Shamel subsequently brought to Bald Knob the district representative of Marion Power Shovel Co., one R. A. Strickland; Huntsman and Strickland made a complete tour of the acreage to be developed; details of the proposed improvements were explained to Strickland ; and Strickland compiled the specifications for the type of equipment needed to put the land in shape. There are three written instruments in the record pertaining to the sale. The first is a purchase order from Standard Equipment to Marion Power Shovel Co., itemizing the components of the machine and directing shipment to Huntsman. Marion then sent to Standard Equipment an invoice sheet. A few days later, Standard invoiced Huntsman and Huntsman paid Marion in full for the equipment. It is noted that none of those three instruments made any mention of warranty. The equipment arrived in April and Marion sent a man to perform the assembling necessary to compose an operating machine. Along with the machine there was a booklet entitled Operation and Maintenance Manual. Seven subjects are treated on page one of section 1, among which is this statement of warranty: STANDARD WARRANTY. Marion Power Shovel Company guarantees the parts manufae tured by it to be free from defects in material and workmanship under normal use and service, its obligation under this warranty being limited to making good at its factory any part or parts thereof manufactured by it which shall, within six (6) months after delivery of said machine to the original purchaser, be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties expressed or implied, and of all other obligations or liabilities on Marion Power Shovel Company’s part. Huntsman further testified that he put the machines to work immediately in order to plant a soybean crop in that year. He claimed that breakdowns immediately set in; that the swing clutches would become hot and erystalize; then the ground drive chains began breaking ; that next came trouble with the transmission which in two months caused the breakage of four drive shafts; and that fifteen working days were lost because the machine’s rotating shaft broke. Those breakdowns, asserted Huntsman, made it impossible to plant a crop that year, and resulted in consequential damages of $25,-000. That figure was based on an estimated land rental value of $25 per acre. Huntsman also sought to recover the difference between the cost of the machine and its actual market value, that difference being in his estimation in the neighborhood of $40,000. Marion Power Shovel produced two principal witnesses. E. A. Strickland denied having gone to the Huntsman farm prior to the sale. Conversely, he contended he met Huntsman at the office of Standard Equipment in North Little Rock, that they inspected specification sheets for various machines; that Strickland was not informed of the details of the proposed operation, other .than the fact that Huntsman wanted to drain some land and build some levees; and that Huntsman, decided for himself on the final specifications. Huntsman ordered an eighty-foot boom when, according to Strickland, the standard would have been a boom of forty feet for the particular machine. Strickland conceded that the machine was not designed to operate on an eighty-foot boom with a dragline carrying a bucket of one and one-half yards capacity. Another witness was an engineer from the factory. He had inspected the broken parts which were returned to the factory and he had watched the machine operate on the ground. He concluded that the breakdowns were due to overloading and otherwise abusing the machine in operation and maintenance. "We have not attempted to relate all the voluminous evidence in the case. Much of it is not pertinent to our decision. Other evidence which requires comment will be treated in the discussion of the points for reversal. 1. There Is No Privity of Contract Between Marion Potver Shovel and Harold Hv/ntsman. That is Marion’s first point for reversal. It is appellant’s theory that Huntsman purchased the equipment from Standard Equipment & Supply Company and not from Marion Power Shovel. Marion further asserts Huntsman cannot claim the benefit of Ark. Stat. Ann. § 85-2-318.1 (Supp. 1967) because Marion’s suit was filed prior to the effective date of that Act. Section 85-2-318.1 eliminates the defense of lack of privity under certain conditions. In examining the overall negotiations, we agree with the trial court’s conclusion that the transaction was actually between Huntsman and Marion Power Shovel. In view of that conclusion, § 85-2-318.1 is not controlling. Standard Equipment played a minimal part in the entire proceedings. Huntsman did first contact Standard and told their Mr. Shamel of his interest in purchasing equipment for draining his property. According to Huntsman, Shamel thereafter brought Marion’s Mr. Strickland to Bald Knob. Shamel had business elsewhere in the area, according to Huntsman, and left Huntsman and Strickland alone to work out the project. Strickland concedes that he made out the specifications which were transposed on Standard’s order blank. Huntsman testified that Strickland authored the specifications on the latter’s judgment after a tour of the farm. The check for $40,000, being the balance of the purchase price after trade-in, was apparently made to Marion Power Shovel. The equipment was shipped direct from the factory in Marion, Ohio, to Huntsman in Bald Knob. Marion Power Shovel sent to Bald Knob a Mr. Revis to oversee the assembly of the machine. It has been held that in the case of a suit between the manufacturer and the consumer the question of whether there is privity of contract is a question of fact. See Hewitt-Robins v. Lea County, 371 P. 2d 795 (N.M. 1962), where the court held such under a similar fact situation. U.S. Pipe v. City of Waco, 108 S.W. 2d 432 (Tex. 1937), says that the court will look through the form to the substance of such a situation. In the Waco case, the manufacturer made certain representations as to the quality of certain pipe, inducing the city to specify such pipe in a contract with a general contractor. “By indirection it [the manufacturer] thus secured for itself a sale as certainly, and presumably as profitably, as if a direct contract of sale had been made with the city. Having secured the benefits, it may not now avoid the burdens of the transaction.” See also Ruberoid v. Briscoe, 293 F. 2d 712 (Tex. 1961). The trial court made no specific written finding as to privity or non-privity; however, it is clear that it did find privity because the court gave as its only reason for not allowing damages based on the market values, before and after, of the machine, the lack of proof as to difference in value. Privity necessarily had to be de termined to exist before the court reached that question of value. 2. The Standard Warranty Covered the Agreement Between the Parties; the Express Warranty Was in Lien\ of all Others; it States the Exchosive Measure of Damages. The warranty before us, which is really in the nature of a disclaimer, violates the UCC in at least two respects. It does not mention merchantability nor can it be considered conspicuous, both of which, are required by Ark. Stat. Ann. § 85-2-316 (Add. 1961). Whether it was conspicuous is for decision by the court. Ark. Stat. Ann. § 85-1-201(10) (Add. 1961). All the documents concerned with the transaction are before us and we are in a position equal to that of the trial judge to determine the question. Hunt v. Perkins Machinery Co., 226 N.E. 2d 228 (Mass. 1967). None of the three written instruments executed to initiate and consummate the sale, including' an invoice executed by Marion Power Shovel, contained mention of warranty. As we have previously mentioned, the warranty first appeared on the inside of an operation and maintenance manual. That document was not supplied Huntsman until delivery of the machine, for which Marion had already received the purchase price. The location of the warranty was considered significant in Hunt, supra. Also, see Dailey v Holiday Distributing Corp., 151 N.W. 2d 477 (Iowa 1967). We conclude that the written warranty was defective. 3. All Questions of Warranty Aside the Court Awarded an Improper Measure of Damages. The sole damages awarded by the trial court were “$9,000 as consequential damages for loss of crops.” Consequential damages are treated in Ark. Stat. Ann. § 85-2-715 (Add. 1961). They may be allowable if the contractor, at the time of the sale, had reason to know of a general or particular requirement of the buyer, and if the failure of the merchandise to produce those requirements could not reasonably be prevented by cover or otherwise. Applying that law to the recovery here, Marion would have had to have reason to know that Huntsman was depending on this machine to shape his land for production of a 1965 soybean crop and that a substitute machine was not available in case of breakdown. Huntsman’s evidence on both these requirements is entirely lacking. Furthermore, the machine was not delivered and assembled until around May 1, 3965. At that time Huntsman had not yet procured an operator. Under those facts it is not reasonable to believe that Marion Power Shovel intended to assure Huntsman at that late date of a 1965 soybean crop. We therefore hold the court erred in allowing consequential damages. 4. The Testimony Affirmatively Shows Harold Huntsman Caused the Damages He Incurred, if any, Through Abuse of the Machine. We do not treat the point because we are remanding the case and the question will bo again before the court de novo. Huntsman contends on cross-appeal that the court erred in not awarding damages for the difference in the value of the machine as provided in Ark. Stat. Ann. § 85-2-714(2) (Add. 1961). 'The court held the evidence “is insuffeient to award damages by such breach of warranty based upon the difference in the price paid for said machine and its market value, if any, in the condition in which the same ivas delivered.” We cannot say the court erred in that respect. Huntsman hedged considerably about giving an opinion of the value of the machine in its delivered condition. He finally said: “Oh, about $20,000.” It is not unreasonable to believe that the evidence could be supplied on retinal. One additional comment should be made for the guidance of the trial court and counsel in the event the case is again tried. Pluntsman gave considerable testimony about the loss of several hundred hours of work ing time due to breakdowns. He then multiplied those hours by what lie alleged to be the fair rental value of the machine and asked for considerable damages for ‘ ‘ down-time. ’ ’ The trial court made no award for those claims and the validity of the charges is not briefed on appeal. Statutory damages for breach of warranty are treated in Ark. Stat. Ann. §§ 85-2-714 and 715. The reason for remand is that law oases generally are remanded unless it is clear that the case has been fully developed. Another reason here for remand is that we perceive the trial court gave credence to the written warranty which is more in the nature of a disclaimer. That warranty should have been voided for the reasons we have stated and the case tried under the doctrine of implied warranty. Beversed and remanded.

Grieeih Smith, C. J. In May, 1933, J. W. Armstrong, as receiver for First National Bank of Corning, Arkansas, filed suit against The Lumber Underwriters, the Manufacturing Lumbermen’s Underwriters, the Lumbermen’s Underwriting Alliance, and ‘‘the unknown, participating members of The Lumber Underwriters.” It was alleged that in January, 1931, the comptroller of the currency for the United 'States declared First National Bank to be insolvent;'that February 21, 1931, a 100 per cent, assessment was levied against stockholders;: that The Lumber Underwriters was a partnership and that certain assets belonging to said partnership were: invested in stock of First National Bank; that, in evidence of such investment, 400 shares of stock of the par value of $25 per -share were issued to The Lumber Underwriters ; that although notice of the assessment was duly given, it had not been paid; that The Lumber Underwriters entered into contracts with Manufacturing Lumbermen’s Underwriters and Lumbermen’s Underwriting Alliance; that “The Lnmher Underwriters” was a name selected by the unknown participating members whom it was sought to make defendants; that such members had banded themselves together as partners to do a reciprocal insurance business; that assets of The Lumber Underwriters constituted a trust fund in the hands of an attorney-in-fact, held for the payment of all obligations of the subscribers at the exchange; and that, although due diligence, had been exercised, plaintiff was unable to identify and locate the unknown participating members. It was further alleged that records of The Lumber Underwriters were in possession of the three underwriting exchanges, mentioned supra, with offices in Kansas City, Missouri. There was a prayer that such defendants be required to produce their books of accounts and records, to the end that plaintiff might discover the names and addresses of all persons who interchanged insurance agreements among themselves under the name, “The Lumber Underwriters,” and that such persons be made parties defendants to the suit, or to other suits if necessary, to effectuate collection of the stock assessment. There was a further prayer for .judgment against each of the defendants for $10,000, with interest, etc. Armstrong resigned as receiver of First National Bank, and the appellant Ewell Vandover succeeded him. There was an order by the court that the cause be revived in Vandover’s name. Motions, amendments, demurrers, answers, etc., were filed from time to time. The record shows that The Lumber Underwriters was organized under authority of Act 152 of 1915, and that A. B. Banks & Company was appointed attorney. In 1928-’29, an examiner for the Board of Insurance Commissioners for Texas made investigations in Arkansas. He recommended that the permit of The Lumber Underwriters to do business in Texas be cancelled, and this was done. Later, in consequence of a written agreement relating to a reserve fund, the cancellation was withdrawn. Under the agreement, stocks aggregating $250,000 in value were placed in escrow. It is in evidence that in 1928 The Lumber Underwriters gave its check to A. B. Banks & Company for $152,512.25 in payment of stocks, the contention being that by this transaction The Lumber Underwriters acquired ownership of the 400 shares of First National Bank stock, against which the assessment was made. There is convincing evidence that The Lumber Underwriters gave its receipt to First National Bank for the stock. The receipt is dated September 17, 1928. It is not seriously denied that First National Bank was in a failing condition in 1928. A. B. Banks & Company was invited to take over management of the institution. Stock was either given to the Banks Company, or it was transferred for an insignificant consideration. However, the Banks Company, as a condition to its participation, required a guaranty of $35,000. This was evidenced by two notes — one for $25,000, and one for $10,-000. These notes were good, the makers being men of considerable means. The guaranty was that the trans ferred stock, at the end of three years, would be worth 110 per cent, of par. First National Bank did not prosper under the reorganization. April 13, 1929, an agreement was made whereby Corning Bank & Trust Company assumed deposit liabilities of First National Bank. Obligations due First National were assigned to Corning Bank & Trust Company, The latter closed November 18, 1930, and was reorganized in 1931 as The Corning Bank & Trust Company. Directors of Corning Bank & Trust Company declined to take over First National Bank until A. B. Banks & Company had executed a release, or waiver, of the guaranty of $35,000 previously exacted. In addition, A. B. Banks & Company agreed to pay deficiencies, after liquidation of assets, completion of collections, etc., if deficiencies existed, not exceeding $37,-500. Appellant contends that stock assessments were included in the assets guaranteed. H. R. Hampton, J. M. Silliman, and J. W. Trieseh-mann succeeded A. B. Banks & Company as attorneys-in-fact for The Lumber Underwriters. December 4,1930, they entered into contract with Lumbermen’s Underwriting Alliance, and with Manufacturing Lumbermen’s Underwriters, whereby the two exchanges, domiciled in Kansas City, assumed the unexpired terms of all policies issued by The Lumber Underwriters, “thus terminating liability of The Lumber Underwriters.” Details of the contract are not essential here. June 4, 1934, appellant was given a list containing the names of the defendants formerly referred to as unknown. August 15,1934, an amendment to the complaint was filed, in which judgment was asked against the newly-named defendants. Service upon all of the defendants was attempted through summons left'with the Insurance Commissioner of Arkansas. Appellant concedes that as to the foreign exchanges, judgment cannot be rendered on such service. They had not done business in this state, nor had they been licensed in Arkansas. Service on The Lumber Underwriters would have been good had the suit been one to enforce a policy obligation, or a liability growing out of an insurance contract. But such attempted service did not give jurisdiction of the person of the defendants where the demand, as in the case at bar, was one predicated upon a statute imposing liability against holders of stock in an insolvent bank. In Cooley’s Briefs on Insurance, vol. 1, p. 70, the author quotes with approval from 58 Central Law Journal, p. 323, where it was said: “The term ‘inter-insurance’ is applied to that system of insurance whereby several individuals, partnerships, and corporations, underwrite each other’s risks against loss by fire or other hazard, through an attorney-in-fact, common to all, under an agreement that each underwriter acts separately, and severally, and not jointly with any other. ’ ’ Judge Cooley then says that associations of this character may usually be sued in the name of the association, and that “Under the inter-insurance system of insurance, éach member is liable for his proportionate share of the insurance granted by policy, and a member sustaining a loss could proceed in a single chancery suit to secure a decree for the aggregate liability of the subscribers and to fix the separate liability of each subscriber, or could proceed in an action at law against the combined members, the method of enforcing the liability being but a procedural matter, over which the legislature of each state has control. ” Section 3 of Act 152 of 1915, which now appears as § 7807 of Pope’s Digest, provides that subscribers to reciprocal or inter-insurance shall, through their attorney [in fact], file with the insurance commissioner a declaration, verified by oath; and concurrently, such at torney shall file with the commissioner an instrument in writing, executed by him for said subscribers, conditioned that, upon the issuance of certificate of authority provided for in § 10 of the Act, “service of process may be had upon the insurance commissioner in all suits in this state arising out of such policies, contracts, or agreements, which service shall be valid and binding upon all subscribers exchanging at any time reciprocal or inter-insurance contracts through such attorney.” The power of attorney executed by members of The Lumber Underwriters contained a provision for appointment of an advisory committee consisting of five or more subscribers. Act 152 does not, by express language, authorize such a committee, and the committee’s authority, of course, would be subservient to that of the attorney-in-fact, who in the Act is referred to merely as an attorney, agent, or other representative. In the Lewelling Case, cited in the fourth footnote of this opinion, Mr. Justice Hart discussed Act 152 and stated that “it provides for service of process upon the insurance commissioner in all suits in this state arising out of policies issued by the association.” It appears that the writer of the opinion, and this court in adopting it, had in mind the construction contended for by appellees in the instant case: that is, process served on the insurance commissioner gave jurisdiction of the person of the exchange, and it gave jurisdiction of the person of the exchange members in a suit to require ratable contribution in instances where the demand was predicated upon “such policies, contracts, or agreements.” The words “contracts or agreements” are to be read in connection with ‘ ‘ policies ’ ’ — contracts or agreements relating to policies. Another section of Act 152 is: “ Except as herein provided, no law of this state relating to insurance shall apply to the exchange of such indemnity contracts.” It is our view that service upon the insurance commissioner in a suit other than one arising out of a policy, or a contract or agreement relating thereto,-is not authorized by the statute. There was no service upon the attorneys-in-fact who succeeded A. B. Banks & Company. The chancellor found that the power of attorney under which the Banks Company acted in transferring First National Bank stock to The Lumber Underwriters specifically set forth the authority conferred; that, according to the written terms, the power was strictly limited “to the use and purposes [therein] expressed, and to no other purpose; ’ ’ that there was no evidence of authority having been conferred upon the Banks Company by members of the exchange to purchase the stock, nor was it shown that at the time or thereafter such members knew that the transfer had been made, and “Under the specific terms of the power of attorney, Banks & Company did not possess any right or authority to purchase this stock for defendants.” We concur in this finding. As to the “unknown defendants” who were treated by appellant as partners, they were served with process only to the extent that they could be reached by the summons directed to the insurance commissioner, and that was unavailing. In the Lewelling Case it was said: ‘ The power of attorney not only designated the building, street number, and city in which the office of the association was situated, but it also designated the name under which such association made its contracts. Therefore, we are of the opinion that when all provisions of the statute are considered, it meant to designate a name under which the association should do business and to provide the person upon whom service should be had in all suits involving the validity of policies of insurance and contracts of the association. . . . We think, however, the object of this clause was to provide a method for a subscriber suing on a policy to enforce the proportionate liability against his fellow-subscribers in the event that the reserve fund on deposit was not sufficient to pay the loss, the liability of each subscriber being individual and not joint/’ Sections 1240 and 1241 of Pope’s- Digest authorize discovery where a person or corporation is liable jointly or severally with others by the same contract. In such action the plaintiff shall state that he does not believe the parties to the contract who are known have property sufficient to satisfy the claim. Appellant undertook to: subject three known defendants to its demand: The Lumber Underwriters, the Manufacturing Lumbermen’s Underwriters, and the Lumbermen’s Underwriting Alliance. It was insisted that the two last-named defendants were trustees holding-large sums of money to which The Lumber Underwriters was entitled. There was an allegation that The Lumber Underwriters did not have property sufficient to satisfy plaintiff’s demands. Such allegation, however, was not made with respect to the other known defendants, but in effect the contrary was asserted. It is true there was no attempt to hold the Manufacturing Lumbermen’s Underwriters and the Lumbermen’s Underwriting Alliance with The Lumber Underwriters on the same contract; yet, if the two Missouri exchanges had been compelled to repay The Lumber Underwriters to the extent of the so-called trust fund, and liability of The Lumber Underwriters to appellant had been established, the known defendant (as to whom liability was alleged on the same contract wdth the unknown defendants) would have had ample property to discharge the obligation. It follows that the discovery statute was not applicable under allegations of the complaint, and the statute of limitations was not suspended as to such unknowns. We do not pass upon the proposition whether, if allegations had been sufficient as to the known defendants, the statute of limitations would have been suspended as to the unknown defendants when the suit-was filed, assuming proper service on the known- defendants. In Hospelhorn, Receiver v. Burke, 196 Ark. 1028, 120 S. W. 2d 705, the court quoted with approval from Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S. W. 952, 82 Am. St. Rep. 301. The Hospelhorn suit was one against Mrs. Burke to enforce collection df an assessment on stock it was alleged she owned in an insolvent Maryland bank. The question was whether the action was for a penalty, and therefore barred by the two-year statute of limitation, or a statutory liability attaching to a contractual obligation not in writing.' The opinion referred to that part of the Nebraska National Bank Case where Mr. Justice Wood said: ‘ ‘ Having reached the conclusion that this is a statutory liability and not a penalty, the statute of limitations would be that applicable to ‘all actions founded upon any contract or liability, expressed or implied, not in writing, ’ for before the form of action was abolished debt was the proper action for enforcing a statutory liability of the kind under consideration. ’ ’ Effect of the Hospelhorn Case was to hold that a suit to enforce liability upon a bank stock assessment must be brought within three years, and not thereafter, and we so hold. The chancellor properly dismissed appellant’s complaint, and his action is in all respects affirmed. It was alleged that all of the assets of The Lumber Underwriters were transferred to Kansas City, but since appellant has abandoned its suit against the Lumbermen’s Underwriting Alliance and the Manufacturing Lumbermen’s Underwriters, this allegation is unimportant. Act 152 of 1915 now appears as §§ 7806 to 7819 of Pope’s Digest. It provides that “Individuals, partnerships, and corporations of this state hereby designated subscribers! are hereby authorized to ex.change reciprocal or inter-insurance contracts with each other, or with individuals, partnerships and corporations, of other states and countries; providing indemnity among themselves for any loss which may be insured against under other provisions of the laws, .excepting life insurance.” The first paragraph in the power of attorney is: “The offices of A. B. Banks & Company of Little Rock, Arkansas, having been selected as a place at which to reciprocally exchange indemnity, such offices being designated The Lumber Underwriters, we, as subscribers at such Lumber Underwriters, appoint said A. B. Banks & Company of Little Rock, Arkansas, the survivors or survivor of them, jointly and severally, attorney for us in our name, place and stead, to exchange indemnity with subscribers at said Lumber Underwriters.” Lewelling v. Manufacturing Wood Workers Underwriters, 140 Ark. 124, 215 S. W. 258. This suit was brought in the Howard Circuit Court to recover on a fire insurance policy. Summons was served on the Insurance Commissioner. A. J. Neimeyer Lumber Company, a domestic corporation doing a lumber business at Little Rock, appeared in the suit solely for the purpose of moving to dismiss for want of party defendant. The court sustained the motion and dismissed the complaint. The action was reversed. The section referred to contained this additional provision: “In choosing said committee, the attorney is authorized to ask-subscribers whom they desire to serve as such committee, and the requisite number selected by the largest number of subscribers shall constitute such committee. Said committee shall have power to fill vacancies and shall serve until their successors are chosen.” Hughes v. Kelly, 95 Ark. 327, 129 S. W. 784; McDonald v. Mueller, 123 Ark. 226, 183 S. W. 751; Magale v. Fromby, 132 Ark. 289, 201 S. W. 278; Love v. Couch, 181 Ark. 994, 28 S. W. 2d 1067. Contra see McClain v. Rankin, 197 U. S. 154, 25 S. Ct. 410, 49 L. Ed. U. S. 702, 3 Ann. Cas. 500.

John A. Fogleman, Justice. This an appeal from the judgment of the circuit court affirming the decision of the Alcohol Beverage Control Board (hereafter called Board) transferring a private club mixed drink permit held by VFW Post 9095 from one address or location to another in Little Rock. Since appellants have not demonstrated error in the circuit court proceedings and judgment, we must affirm. The proceeding was commenced by the filing of an “Affidavit of Transfer” by “W. C. Reed, VFW Post 9095” on May 18, 1978. It was actually an application for the transfer of “Retail Liquor Permit No. 233” from 7300 West 12th Street in Little Rock to 1211 Gamble Road in the same city. It was alleged in that application that the premises to which the transfer was sought were owned by VFW Post 9095. On June 28, 1978, appellants and others alleged to be 294 in total number, filed a petition with the Board opposing the transfer. On July 11, 1978, a hearing was held before a hearing officer on the transfer application. The report of the hearing states that it was held on the applications of VFW Post 9095 and W. C. Reed, its managing agent, for a transfer of location of “On Premise Consumption, Private Club, Permit #233 and Retail Beer Permit #3990.” On July 18, 1978, Karen Jones, Director of Alcoholic Beverage Control Division, denied the application for transfer. That decision was appealed to the Board. At a hearing held by the Board on October 18, 1978, the decision of the Director was reversed and the transfer granted. On November 14, 1978, Theodore Jones, J. L. Herring and Gerold Grigsby, appellants here, filed a petition for judicial review in the circuit court. The circuit court’s judgment affirming the Board’s decision was entered January 29, 1979. Appellants list eight points for reversal. They are: I THE COURT ERRED IN FINDING THAT A FULL AND COMPREHENSIVE HEARING WAS CONDUCTED BY THE ALCOHOLIC BEVERAGE CONTROL AS EVIDENCED BY THE TRANSCRIPT AND EXHIBITS FILED HEREIN. II THE COURT ERRED IN CONCLUDING THAT SUCH MATTERS PERTAINING TO PRIVATE CLUBS ARE PROVIDED FOR ONLY IN ACT 132 OF 1969. Ill THE CIRCUIT COURT ERRED WHEN IT CONCLUDED AS A MATTER OF LAW TO WIT: “2. ACT 189 OF 1973 (48-311 ARK. STATS. ANN.) SPECIFICALLY STATES THAT IT AMENDS “SECTION 7 OF ARTICLE 3 OF ACT 108 OF 1935, AS AMENDED,” WHICH IS THE THORNE LIQUOR ACT, AND THE COURT HELD IN HINTON V. STATE (242 ARK. 341) “THAT THE THORNE LIQUOR ACT, ACT 108 OF 1935, AS AMENDED DOES NOT COVER ISSUANCE OF PRIVATE CLUB PERMITS.” THEREFORE, 48-311 ARK. STATS. ANN. DOES NOT APPLY. IV THE COURT ERRED WHEN IT CONCLUDED AS A MATTER OF LAW, TO WIT: 3. “THAT ACT 132 OF 1969 DOES NOT SET OUT ANY METHOD OF APPEAL FROM ISSUANCE OF A PERMIT BY ALCOHOLIC BEVERAGE CONTROL FOR LICENSES TO PRIVATE CLUBS; THEREFORE, APPEALS MUST BE TAKEN UNDER ARK. STATS. ANN. 5-701 ETSEQ WHICH IS THE ADMINISTRATIVE PROCEDURE ACT.” V THE COURT ERRED IN DEPRIVING APPELLANTS TRIAL DE NOVO BY JURY AND JUSTIFYING ITS JUDICIAL REVIEW BY CITING IN ITS ORDER: “4. IN 5-713 ARK. STATS. ANN. SUBPARAGRAPH (g) IT IS PROVIDED “THE REVIEW SHALL BE CONDUCTED BY THE COURT WITHOUT A JURY AND SHALL BE CONFINED TO THE RECORD, EXCEPT THAT IN CASES OF ALLEGED IRREGULARITIES IN PROCEDURE BEFORE THE AGENCY, NOT SHOWN IN THE RECORD, TESTIMONY MAY BE TAKEN BEFORE THE COURT.” VI THE COURT ERRED IN SUSTAINING AND AFFIRMING THE ALCOHOLIC BEVERAGE CONTROL “BOARD DECISION” GRANTING APPELLEE W. C. REED PRIVATE CLUB PERMIT NO. 233, RETAIL BEER PERMIT NO. 3990 AND TRANSFER OF LOCATION. VII THE COURT ERRED IN AFFIRMING THE ALCOHOLIC BEVERAGE CONTROL BOARD’S DECISION PERMITTING PRIVATE CLUBS ON PREMISES DISPENSING AND CONSUMPTION OF ALCOHOLIC BEVERAGE WITHIN 200 YARDS OF A CHURCH. VIII THE COURT ERRED IN AFFIRMING THE DECISION OF THE A.B.C. BOARD IN THAT THE “BOARD DECISION” FAILED TO MAKE EXPLICIT AND CONCISE FINDINGS OF FACTS AND CONCLUSIONS OF LAW SEPARATELY STATED AS MANDATED IN 5-710 ARK. STATS. ANN. I Appellants contend that their witnesses were not heard by the Board. They cite Ark. Stat. Ann. § 5-708 (c) (Repl. 1976), which provides that in every case of adjudication by an agency subject to the provisions of the Arkansas Administrative Procedure Act (as the Board is, see Byrd v. Jones, 263 Ark. 406, 565 S.W. 2d 131) opportunity shall be afforded all parties to present evidence and argument on all issues involved. Appellants complain that the Board failed to comply with this provision by refusing to hear five or six witnesses they planned to call at the hearing before the Board, and by denying their offer of witnesses to prove variances from the truth in the Alcoholic Beverage Control Report submitted on June 7, 1978, by A. D. Evans, an agent of the Board. Appellant Theodore Jones was spokesman for those objecting to the transfer. The chairman of the Board asked him how many witnesses he planned to call. When Jones responded “five or six,” the chairman asked Jones if he knew what the witnesses would testify and the general nature of their testimony. The following exchange between the chairman and Jones ensued: T. Jones: “I propose to show that a number of the people actually attend this church regularly. Have regularly attended this church in the past on a regular basis, that’s one of the things. Would you stipulate to that?” Ratton: “I think we would so stipulate. How many of these people have attended this church regularly on a weekly basis?” Bailey: “That’d be five.” Ratton: “All right sir. We will so stipulate that there’s five people who regularly, conscientiously attend that church for the services.” Jones later stated, “We have five, acting, participating members in our church” and that he was the operator of a junkyard on the premises where the church was located. One of the grounds of objection by apellants was that the proposed “liquor outlet” was too close to a church. Since the Board accepted Jones’ statement as to the testimony of these witnesses, appellants were not prejudiced by this action of the Board, which is admonished to exclude unduly repetitious evidence. See Ark. Stat. Ann. § 5-709 (d) (Repl. 1976). Appellants’ spokesman did not state anything that these witnesses would testify other than the matters set out above. Appellants contend that on another occasion, they were denied the opportunity to present witnesses to prove variances from the truth in the Alcoholic Beverage Control Report. We cannot consider this argument because the abstract of the record does not reveal what witnesses were to be called, what “variances from the truth” there were in the report, or any statement pertaining to the testimony these witnesses might have given. Actually the abstract does not show anything pertaining to a denial of the right of appellants to present evidence, other than that pertaining to the church. We can only rely upon the abstract of the record, as it constitutes the record on appeal. Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W. 2d 949. Appellants have failed to sustain this point or to demonstrate any violation of the equal protection and due process requirements of the Fourteenth Amendment to the United States Constitution which they assert in their argument on this point. We also note that the abstract of appellants’ petition for review of the Board’s action did not raise any issues as to violations of the United States Constitution. II Appellants’ argument on this point is totally devoid of any foundation. Act 132 of 1969 [Ark. Stat. Ann. §§ 48-1401 — 48-1418 (Repl. 1977)] is a comprehensive act covering the subject of sale of alcoholic beverages for “on premises consumption.” It includes a section (§ 10) governing private club permits. See Ark. Stat. Ann. § 48-1410 (Repl. 1978). Appellants read the preamble and §§ 1 and 12 of the act to require the application of Ark. Stat. Ann. § 48-311 (Repl. 1977) to private club permits. That part of the preamble quoted by appellants reads: AN ACT to Reaffirm and Strengthen the State’s Policy of Strict Enforcement of the Liquor Laws of This State; ***** to Provide for the Licensing of Private Clubs in Which Alcoholic Beverages May Levy Taxes on Alcoholic Beverages Sold for On-Premises Consumption; to Authorize Cities and Counties to Levy Taxes and Fees Thereon; and for other Purposes. The portions of § 1 relied upon by them are: The General Assembly hereby reaffirms the policy of this State of strict enforcement of alcoholic beverage control laws ***** The General Assembly hereby authorizes and directs all law enforcement officials to en force strictly the alcoholic beverage laws of this State. Section 12 of the act reads: “The Board is authorized to adopt and enforce reasonable rules and regulations governing the qualifications for permits hereunder, the operation of licensed premises, and otherwise implementing and effectuating the provisions and purposes of this Act, and, in doing so, shall be guided, insofar as pertinent, by rules and regulations now or hereafter applicable to retail liquor outlets. Nothing in this Act, however, shall be construed as limiting the power of other proper State or Local Governmental Bodies to regulate the operation of establishments under this Act as may be necessary for the protection of public health, welfare, safety, and morals.” (Emphasis as supplied by appellants.) A policy declaration that liquor laws should be strictly enforced certainly is not a legislative declaration requiring the application of all existing statutes governing intoxicating liquor permits to the “on-premises consumption” type of permit. The direction by the General Assembly that the Board, in adopting rules and regulations governing qualifications for permits and otherwise implementing and effectuating the purposes of the acts, be guided by rules and regulations applicable to retail liquor licenses, “insofar as pertinent” does not require such application.^ Although the words “rules and regulations” might include statutes, depending upon the context in which they are used, in the usual connotation, these words do not. Ordinarily, these words are taken to mean rules and regulations adopted by administrative boards and agencies such as the Board. In the context in which these words were used in Act 132, they mean just that — the rules and regulations of the Alcoholic Beverage Control Board. Furthermore, the rules and regulations governing retail liquor outlets were, by express language of § 12, to serve only as guidance to the Board and then only “insofar as pertinent.” We do. not understand appellants’ argument that § 13 of Act 132 bears on this point. It is quite true that this section does, as appellants point out, give the Director the power to suspend, cancel or revoke a permit granted under the act for violation of the act or any rule, regulation or order of the Board. It does not, as appellants’ excised quotation of the section would indicate, authorize any law enforcement agency having jurisdiction over the permitted premises to do so. Such an agency, under this section, may only make a complaint to the Director. The section also, by its specific language, requires that a permittee under the act be given an opportunity to appear and defend as provided by Ark. Stat. Ann. § 48-1312 (Repl. 1977) prior to suspension, cancellation or revocation of his permit, and to appeal under the provisions of Ark. Stat. Ann. §§ 48-1314, -1316 (Repl. 1977) from an order of the Director suspending, cancelling or revoking his permit. These provisions making specific reference to specific statutes, or sections thereof, actually run counter to, rather than support, appellants’ argument on this point. Ark. Stat. Ann. § 48-311 (D) was brought into the statutory scheme by § 1 of Act 189 of 1973, which amended § 7 of Art. Ill of Act 108 of 1935, commonly referred to as the Thorne Liquor Law. That article dealt with the permits authorized under the Thorne Liquor Law, Subsection (A) of said § 7, which is also subsection (A) of Ark. Stat. Ann. § 48-311 refers to permits ‘ ‘under this act.” “ This Act’’ was Act 108 of 1935, which is compiled as Ark. Stat. Ann. §§ 48-101,-48-122,-48-201,-48-206,-48-301,-48-305,-48-309, -48-311, -48-326, -48-807, -48-822, -48-908, -48-937, -48-944 (Repl. 1977). See Compiler’s notes Ark. Stat. Ann. §§ 48-311 and 48-301. It appears that § 48-311 (E) would apply to permits under those sections only. Act 132 of 1969 is not, in any sense of the word, an amendment of Act 108 of 1935. Instead, it is a comprehensive act dealing only with the sale or dispensing of alcoholic beverages for “on-premises consumption.” We find no error in the trial court’s holding that Ark. Stat. Ann. § 48-311 (E) does not apply. Ill Appellants’ argument here is, in part, repetitive of their argument under Point II. In addition, however, they say that the circuit court reached its conclusion that Ark. Stat. Ann. § 48-311 did not apply to private club permits upon a misquotation of language in our opinion in Hinton v. State, 246 Ark. 341, 438 S.W. 2d 57. We actually do not see that our decision in Hinton, rendered prior to the enactment of Act 132 of 1969, has any real bearing on the questions at issue. IV Appellants are in error in relying upon § 13 of Act 132 of 1969 in arguing this point. Section 13 applies only to appeals from an order of the Director suspending, cancelling or revoking a permit issued under Act 132. It has nothing to do with appeals from orders of the Board granting a transfer of the location of an outstanding permit. In granting the transfer, there was certainly an adjudication by an agency subject to the Arkansas Administrative Procedure Act. It appears from the format of appellants’ Petition and Appeal filed in the circuit court that they did petition for judicial review pursuant to Ark. Stat. Ann. § 5-713 (Supp. 1979), which would govern in this case. In any event, appellants have not shown that the holding of the trial court deprived them of any right they would have had under Ark. Stat. Ann. §§ 48-1312, -1314, and -1316 (Repl. 1977). It appears to us that the review by both the Board and the circuit court was in substantial compliance with these statutes, as well as with the provisions of the Administrative Procedure Act. V Appellants argue, however, that, even if the Administrative Procedure Act applies, they were entitled to a jury trial under Ark. Stat. Ann. § 48-311 (E) (Repl. 1977) and Art. 2 § 7 of the Arkansas Constitution as amended by Amendment 6, and by the United States Constitution’s guarantees of trial by jury, due process of law and equal protection of the law. In relying upon Ark. Stat. Ann. § 48-311, appellants point out that§ 5-713 (A) provides that the Administrative Procedure Act does not limit other means of review provided by law. The statutory language in § 48-311 relied upon by appellants is: *** Any appeal from an order of the Director or Commission shall be made to the circuit court of the county in which the premises are situated, and said appeal shall be tried de novo. Assuming, but not deciding, that this statutory provision did apply, “trial de novo” certainly does not require a jury trial. For example, on appeals from chancery courts, there is a trial de novo on appellate review, but certainly no right to jury trial. Trial de novo, as used in this statute, simply means that the whole matter is opened up for consideration by the circuit court as if the proceeding had been originally brought in that court. See Civil Service Commission v. Matlock, 206 Ark. 1145, 178 S.W. 2d 662. Appellants’ contentions as to a constitutional right to jury trial were completely answered in Civil Service Commission v. Matlock, 205 Ark. 286, 168 S.W. 2d 424. There we held that it was error for the circuit court to submit an appeal from the action of a civil service commission to a jury. There we said: *** The constitutional guarantee of a jury trial extends only to common law actions, and, of course, the proceeding authorized by the act of the legislature under consideration here is not a common law proceeding, and neither party to such a proceeding was entitled to a jury. “The right of trial by jury shall *** extend to all cases at law.” Article II, Section 7, constitution of Arkansas. In construing this provision of the constitution this court, in the case of Drew County Timber Company v. Board of Equalization, 124 Ark. 569, 187 S.W. 542, said that the right of trial by jury “is confined to cases which at common law were so triable before the adoption of the Constitution’’. State v. Johnson, 26 Ark. 281; Wheat v. Smith, 50 Ark. 266, 7 S.W. 161; Wise v. Martin, 36 Ark. 305; Missouri Pacific Railroad Company v. Conway County Bridge District, 134 Ark. 292, 204 S.W. 630. The constitutional right to trial by jury does not secure the right in all possible instances, but only in those cases in which it existed when our constitution was framed; it extends only to the trial of issues of fact in civil and criminal causes and has no relation to cases such as this. McKinley v. R. L. Payne & Son Lumber Co., 200 Ark. 1114, 143 S.W. 2d 38. As pointed out in Matlock and elsewhere, the so-called statutory “appeal” from administrative agency action is only an adaptation, or perhaps extension, of judicial review of such proceedings which has always been available by certiorari, quo warranto, or other such writs. It has been made quite clear, by our own decisions that the proceedings of a state administrative board or tribunal are subject to review on certiorari or other extraordinary writ in the circuit court, a court of general original jurisdiction, when the board acts in a quasi-judicial capacity, even in the absence of a statutory authorization. Hall v. Bledsoe, 126 Ark. 125, 189 S.W. 1041; Howell v. Todhunter, 181 Ark. 250, 25 S.W. 2d 21; Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196, 35 S.W. 227; State v. Railroad Commission, 109 Ark. 100, 158 S.W. 1076. See Parker, Administrative Law in Arkansas, 4 Ark. L. Rev. 107, 120; Davis, Mandamus to Review Administrative Action in Arkansas, 11 Ark. L. Rev. 351, 352; Certiorari in Arkansas, 17 Ark. L. Rev. 163, 169, 172. Amendment Seven of the United States Constitution preserves the right to jury trial which existed at common law when that amendment was adopted, but has no application to a statutory proceeding which is not in the nature of a suit at common law. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1936). This proceeding is, of course, a statutory proceeding which is not in the nature of a suit at common law. The Seventh Amendment is generally inapplicable in administrative procedures, where jury trial would be incompatible with the whole concept of administrative adjudication. See Pernell v. Southall Realty, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974) and cases there cited. The United States Supreme Court has generally taken the position that Amendment Seven, even after the adoption of the Fourteenth Amendment, does not apply in civil actions in state courts. See Annot., 18 L. Ed. 2d 1388, 1410. VI This argument is based partially upon the assumption that appellants are correct in their assertions under points II, III and IV. Appellants, however, seek to apply regulations of the Board pertaining to applications for a permit. This was not an application for a permit. It was only an application for a transfer of the location. The regulations relied upon by appellants do not apply to a change of location, which is covered by § 1.26 of the Regulations of the State of Arkansas Department of Finance and Administration, Division of Alcoholic Beverage Control, Revised October 9,1974. Even though the document which appears in the record is entitled ‘ ‘ Affidavit of Transfer,” it also constitutes an application to transfer Retail Liquor Permit No. 233. Appellants say, however, that there was no application for change in location of either a private club permit or a beer permit, but that the Board’s order permits both. It is clear, however, that appellants made their objection to a private club permit for dispensing any kind of alcoholic beverages at the new location. It is also clear that the agency hearings were held on the proposed change of location of both the private club and beer permit. Appellants appeared at, and participated in, those hearings. We find no objection to the hearings on the change of location because of deficiencies in the application. We find nothing in appellants’ petition in the circuit court raising any question about the validity or sufficiency of the application. This issue is raised for the first time on appeal. We do not consider such questions, but we point out that it is clear that appellants were not misled and that the hearings covered both the private club permit and the beer permit. VII Appellants contend that the oral testimony at the Director’s hearing was not included in the transcript and that it would disclose that Gibralter Heights Church of God was located across the street from the proposed new location, and regularly holding church services worshipping God there. Actually, it appears to us that the hearing before the Board is a hearing de novo and that the evidence before the Director is not automatically before the Board. In any event, if there is any deficiency in the record before us, it was the responsibility of appellants to take steps for correction of these deficiencies. Arkansas Farmers Association v. Towns, 232 Ark. 997, 342 S.W. 2d 83; Arkansas State Highway Com’n. v. Stupenti, 222 Ark. 9, 257 S.W. 2d 37. Appellants claim that the Board stipulated that a church existed across the street and that the transfer was unlawful because of the provisions of Ark. Stat. Ann. § 48-312 and § 1 of Act 699 of 1975 [Ark. Stat. Ann. § 48-345 (Repl. 1977)] prohibiting any new permit within 200 yards of any church. Ark. Stat. Ann. § 48-312 was § 8 of Art. Ill of Act 108 of 1935. It provides that a permit issued pursuant to that section shall not be transferrable to any premises other than those for which it was issued. Assuming but not deciding that this section applies to a private club permit, we have held that it limits only the action of the permittee, not the action of the Board. Smith v. Estes, 259 Ark. 337, 533 S.W. 2d 190. Section 1 of Act 699 of 1975 does not apply here. It prohibits the issuance of a new permit to engage in the retail liquor business at a location situated within 200 yards of a church. A retail liquor business is that which is contemplated by Ark. Stat. Ann. § 48-309 (Repl. 1977). Under such a permit, one may dispense vineous or spiritous liquors for beverage purposes at retail, but such sales must be in unbroken packages, which may not be opened or any part of its content consumed on the premises where purchased. On the other hand, a private club permit is for dispensation of alcoholic beverages by the drink or in broken or unsealed containers for consumption on the premises. Ark. Stat. Ann. §§ 48-1402 (f), -1410 (a) (Repl. 1977). Furthermore, the definition of “private club” in Ark. Stat. Ann. § 48-1402 (j) is not consistent with the word “business.” A private club permit-tee simply is not engaged in the retail liquor business in the context of Ark. Stat. Ann. § 48-345. VIII Appellants state that the Board did not comply with Ark. Stat. Ann. § 5-710 (b) as to findings of fact and conclusions of law, in the following particulars: 1. The Board stipulated to a church located across the street from the permitted premises but in its decision stated “there purports to be a church” and “from the grounds on which the purported place of worship.” 2. There is not a single law citation or conclusion of law stated. Appellants made no complaint about this deficiency in their petition in the circuit court. Appellants did not choose to abstract the Board’s decision in their original brief. They attempted to supply the deficiency in their reply brief. This is not permissible. Merritt v. Merritt, 263 Ark. 432, 565 S.W. 2d 603. By their action, appellants have waived their present contention. Although this court may raise the question on its own motion, we are not required to search the record in order to do so. We would add that, although the “decision” set out in appellants’ reply brief falls far short of being a model of compliance with the Administrative Procedure Act, it is not so deficient as to be totally void. Since the principal objection of appellants, though not the only one, related to the distance of the private club from the church of which appellant Theodore Jones was the minister, we do not feel that we are called upon to remand this case for further findings and conclusions at this time in view of the circumstances prevailing here. Since appellants have failed to demonstrate error in the circuit court’s review, the judgment is affirmed. Harris, C.J., and Byrd and Purtle, JJ., did not participate.

M. Steele Hays, Judge. This case was appealed to the Arkansas Supreme Court and assigned to the Arkansas Court of Appeals pursuant to Rule 29(3). Appellant appeals from a final order of adoption granted to appellee. The persons adopted are Michael Earl Brown and Christopher Allen Brown, minor sons of appellant and Eva Jeanette Fleming (formerly Brown). Appellant and Mrs. Fleming divorced on March 22, 1974 and on May 1, 1976, Mrs. Fleming married the appellee. In the decree of divorce, custody was awarded to Mrs. Fleming of Michael, then four years of age, and of Christopher, then ten months of age. Child support was set at $25.00 per week. On September 1, 1977, appellee filed petition for adoption of the two boys. Hearings were conducted on December 8, 1977, December 21, 1977 and on November 2,1978, a final decree of adoption was entered. The testimony established that appellant had seen his sons irregularly since the divorce and not at all since December of 1975, except for a single overnight visit in November, 1976. Appellant had paid nothing by his own account since December of 1975 (he testified that he was unemployed from May 1976 to March 1977) and had not attempted to see the children since 1975. Mrs. Fleming testified that the children loved the appellee and thought of him as their father and that he had provided the full and only support of the children since their marriage in 1976. The lower court found that the appellant’s consent was not necessary and that it was in the best interest of the children to grant the adoption. This appeal followed: Two points for reversal are argued: I, that the presence of the children before the court is required by Ark. Stat. 56-214 (Act 735 of 1977) and the children were not before the court; and II, that the appellant’s consent was necessary and was not lost to him by reason of non-support, as provided in Ark. Stat. 56-207. These points for reversal must fail. As to the first point, the point lacks merit for the reason that the final decree of adoption recites “that all proper persons are before the court”, and we must assume the finding means what it says. Moreover, counsel for appellee, who attended every one of the hearings, states categorically that the children were present at the hearing on December 21, 1977. This hearing was held approximately six months before counsel for appellant entered the case. But the answer need not rest on this reasoning alone, for it is clear that appellant’s counsel made objections into the record at both the December 21, 1977 hearing (see page 50 of the record) and at the November 2, 1978 hearing (see pages 55-57 of the record) and neither objection touched on the point now argued. The rule in Pyramid Life Insurance Company of Kansas City, Kansas v. Garrison, 241 Ark. 101 (1966) 406 S.W. 2d 344, and Panich v. McLendon, 241 Ark. 576 (1966) 409 S.W. 2d 497 applies. As to point II, section 7 of the Act (Ark. Stat. 56-207) provides that the consent to adoption is not required of a parent who, for one year has failed significantly without justifiable cause to communicate with his child or provide for the care and support of his child as required by law or judicial decree. The fact is the appellant is caught under both provisions in the statute. He admits that he did not see or otherwise communicate with his children from December of 1975 (except for one overnight visit with them in November, 1976) or, for a period of nearly two years. We are not willing to say that the court erred in holding that this was not significant communication. Appellant cites Woodson v. Lee, 221 Ark, 517, 254 S.W. 2d 326 (1953) in support of this point. The difference in the two cases are evident. In Woodson, the Supreme Court reversed a lower court ruling that a father had abandoned his son for a period in excess of six months. The facts in that case reflected that the father never stopped trying to see and communicate with his son but was denied the right to do so by the mother, his former wife. He eventually obtained counsel in an effort to enforce his right of visitation. In the present case, after 1975 appellant never attempted, so far as we can determine from the record, to see his children and his explanation is unconvincing. On the matter of financial support, the records of the Master show that appellant began missing child support payments within a few months following the divorce. He paid a total of nine or ten payments in 1975 (as opposed to the requisite 52) and, by his own admission, paid nothing after December, 1975. His explanation is that he was unemployed from May 1976 until March, 1977. Even so, this interruption in earnings doesn’t account for an extended period both before and after his period of unemployment. His explanation for not resuming support after he returned to work in March of 1977 was he needed to catch up on his bills. The obvious fact is that both from the standpoint of communication and financial support the appellant has demonstrated a disinterest in these children for a period well in excess of the period prescribed in the statute. The legislature has seen fit to fix the period by which the right of a parent to prevent, absolutely, the adoption of children by reason of significant failure to either support or cummunicate with children. It fixed that period of time at one year and the appellant comes clearly within that provision. That being so, the Probate court was justified in finding that his consent was not required and by so holding, the court deprived appellant of nothing that he had not voluntarily surrendered long before. Affirmed. Howard J., dissents. George Howard, Jr., Judge, dissenting. Ark. Stat. Ann. § 56-207, the revised Uniform Adoption Act, in relevant part, provides: (a) Consent to adoption is not required of: “(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree ...” (Emphasis added) The petitioners, the stepfather and natural mother of the minors, claimed, and the trial court accepted the contention, that appellant, the natural father, had “failed to provide for the care and support of the children as required by the divorce decree ... for more than two years and, thus, his consent is not required ...” But a careful review of the record clearly shows that this claim was not established by a preponderance of the evidence and a reversal of the trial court is required. The mother of the minor children testified: “Q, When was the last child support payment you received? A. September, 1975. Q. Immediately following your divorce did he visit the children regularly? A. No. Q. Has he ever visited the children regularly? A. No, he hasn’t. Q. When was the last time he saw the children? A. December of 75.” On cross examination, the mother testified: “Q. So you don’t know whether your former husband saw the children when his parents had them or not, do you? A. I know a couple of times he did.” The natural father testified, in relevant part, as follows: “Q,. . . . Have you given her any money since that time (September 23, 1975)? A. Yes, sir, I have. Not through the Court but personally- Q. Personally? Did you give her any money in Christmas of 75? A. Yes, sir, on Christmas Eve. I had sent her a check the week before, and then Christmas Eve when I stopped by her apartment on Baseline Road to pick up the kids I gave her $240.00 in cash. Q. What Christmas was that? 1975? A. Yes. Q. All right. Have you given them any money since December of 75? A. No, sir. Q. Why haven’t you given them any money since then? A. Because up until May of this year I was unemployed from March of 76 until May of this year. Q. Until May of this year? A. Yes, sir. Q. And were you able to give them any money? A. No, sir, I wasn’t. Q. Have you tried to communicate with the children during this past — since December of 75? A. The last time I talked with their mother we got into an argument and since she has remarried. I don’t want to start any problem between her and her new husband. Q. All right. Now, when did she remarry? A. May of 76. Q. All right. Did you communicate and visit with the children prior to the time that she remarried? A. Yes, I did. In fact, the two summers after we were divorced, the first summer I had the oldest boy for a week in Memphis, and the second summer I had both of the boys for a week, when I was still living in Memphis. Q. All right. Have you talked with them on the phone since she remarried? A. I haven’t talked to them on the phone. I saw them the first weekend in November of 76. Q. The first weekend in November of 76? And where was that? A. The night my father picked the boys up from her, that afternoon, and they spent Friday night with me over at the trailer, and then they went down to my grandparents the next morning. Q. And that was in November of 76? A. Yes, sir. Q. And how old was the oldest one at this time? A. The oldest one at that time was seven. Q. Was seven? And you spent the night at your trailer? A. Yes, sir. Q. Have you tried to talk or communicate with your children by phone? A. Well, sir, since my ex-wife has remarried she seems to be happy and I don’t want to start any problems or cause any problems between her and Mr. Fleming.” On cross examination, the natural father testified: “A. My ex-wife knew that I was unemployed.” The paternal grandmother of the minor children testified: “Q. Have you bought the children presents? A. Well, their Christmas presents are at my house now. Q. From last year? A. Yes, sir. Q. Why are they at your house now? A. From last Christmas? Well, I don’t know. Just — I called Mrs. Fleming and asked her if she would come out and pick them up but she just didn’t pick them up. Q. Now, prior to the time that she remarried did you and your husband keep the kids on weekends? A. Yes, sir. Q. And have you had the children on any weekends since she remarried? A. Yes. We had them after she got married until, I believe that it was the first weekend of November, of 76. Q, And then that is the last time you have had them? A. Yes. Q, What happened that you ceased having the children on the weekend? A. Well, when I would call, well, she just said they were going some place and she didn’t think it was right for ’em to come out. Q. But you have been denied the right to have them on weekends, have you not? Since November, 76, last year? A. Yes, sir.” The paternal grandfather testified: “Q. Have you given the children any presents, and so forth? A. We bought them Christmas presents but they are still at home. Q. Have you been denied the right to have the children out to your place? A. I feel like I have, yes, sir. Q. And up until then you used to keep them quite frequently, did you not? A. Right. Q. And what happened that caused that to cease? A. Really I don’t know.” The testimony of the natural father and paternal grandparents has not been rebutted. This testimony stands uncon-tradicted. It is plain that the natural father’s consent to the adoption is not required if he had failed, for at least one year, “significantly without justifiable cause” to communicate with or to provide for the care of his children. An objective analysis of this case leads to the inescapable conclusion that it cannot be said that the natural father has forfeited his right to object to the adoption of his children. Finally, Ark. Stat. Ann. § 56-214 (Repl. 1977), in material part, provides: “The petitioner and the individual to be adopted shall appear at the hearing on the petition, unless the presence of either is excused by the court for good cause shown. ” The petitioner-stepfather testified at the hearing on his adoption petition resulted in the Interlocutory Decree granting the adoption: “Q. Where are the children this morning? A. ... in school . . . Q, Why didn’t you bring them? A. I wasn’t instructed to.” The presence of the children was mandatory under the statute. The failure to have the children present for the proceeding amounts to a jurisdictional defect rendering the interlocutory decree a nullity. The majority seeks to avoid this defect by asserting that the final decree recites: “1. That all the proper parties are before the Court.” I submit that this observation in the final decree, which is not supported by anything in the record, does not cure the obvious fatal defect because the final decree was entered pro forma to simply render the interlocutory decree final, which was entered December 28, 1977, while the final decree was entered November 18, 1978. In other words, the final decree was not rendered as a consequence of a hearing separate and apart from the original hearing resulting in the interlocutory decree. The interlocutory decree makes no reference as to the presence of the children whatsoever. It seems clear that appellant-natural father’s entitlement to due process and equal protection under the law dictates a reversal. It must be remembered that in a case, as here, involving former spouses, especially where it is obvious that emotions are at a high pitch, courts are duty bound to scrutinize claims of waiver in order to be sure there is no manipulation of the purported facts on the part of either party to the proceeding. Accordingly, I dissent.

J. Pred Jones, Justice. This is an appeal by JG. A. Garrison from an order overruling liis motion for judgment notwithstanding a jury verdict rendered against him in the Pulaski County Circuit. Court, Second Division. On June 21, 1965, Mr. Garrison entrusted his 1965 Thunderbird automobile to his minor son, Gary, then fifteen years of age, for the purpose of going to a picture show at the. Park Theatre in North Little Rock. Gary’s young friend, George Baugher ITT, also fifteen years of age, had been with Gary all day and was with him when the automobile was entrusted to Gary. The two boys had planned the trip to the theatre and knew that Pamela "Williams, young Baugher’s fourteen year old girl friend, would be at the theatre with a group of girls who had planned a bunking party at one of their homes following the show. Upon arrival at the theatre young Baugher immediately located Pamela sitting among her friends. He obtained the automobile keys from young Garrison and took Pamela for a ride in Mr. Garrison’s Thunderbird automobile. There is some conflict in the testimony at this point, but in any event when young Baugher agreed to tell that he had stolen the automobile in the event of an accident or inquiry by the police, young Garrison surrendered the possession of the ignition keys to young Baugher and Pamela. Pamela says that she thought they wore going to just sit in the auto mobile and talk Avhile listening to the radio,' but that 3roung Bauglier attempted to drive the automobile, lost control of it about two blocks from the theatre, and crashed into a concrete wall. The automobile was demolished and Pamela sustained serious injuries. Mi'. Williams filed suit in his own right for medical expenses and for Pamela for her personal injuries against Mr. Garrison and young Baugher. The complaint alleged facts constituting negligent entrustment on the part of Mr. Garrison, and willful and wanton negligence in the operation of the automobile on the part of young Baugher. The complaint alleged damages as a proximate result of the joint and concurring negligence of Mr. Garrison and young Baugher. Both Mr. Garrison and 3roung Baugher answered by general denial. A jury trial resulted in a verdict against Mr. Garrison in favor of Pamela Williams for $5,500, and in favor of Mr. Williams for medical expenses in the amount of $1,-858.15. The jury found for George F. Baugher ITT on the complaint against him and judgment was entered accordingly. On appeal to this court Mr. Garrison narrows the issues within the point he relies upon for reversal. He states the point as follows: “The trial court erred in overruling appellant’s motion for judgment notwithstanding flic verdict.” Tn narrowing the issues rvithin the point, appellant Garrison states: “The sole question presented by this appeal is whether or not in a suit based upon the theory of negligence entrustment it is permissible for a jury to exonerate the driver of the borrowed automobile but at the same time find that the owner of the entrusted automobile is liable for plaintiff’s damages. It is appellant’s position that an examination of the relevant authorities clearly shows that in cases of this nature in order for the owner to be held liable it is a condition precedent that the driver of the borrowed vehicle must be found to have been negligent and liable to the injured party.” The appellant cites, and seems to rely heavily on, our 1937 decision in the case of Chaney v. Duncan, 194 Ark. 1076, 110 S.W. 2d 21, wherein we said, as quoted by the appellant: “An automobile is a machino that is capable of doing great damage if not carefully handled, and for this reason the owner must use care in allowing others to assume control over it. If he intrusts it to a child of such tender years that the probable consequence is that he will injure others in the operation of the car, or if the person permitted 1o operate the car is known to be incompetent and incapable of properly running it, although not a child, the owner will be held accountable for tlio damage done, because his negligence in entrusting the ear to an incompetent person is deemed to he the proximate cause of the damage. In such a case of ■mere permissive use, the liability of the owner would-rest, not alone upon the fad of ownership, but upon the combined negligence of the owner in intrusting the machine to an incompetent driver, and of the. driver in its operation.” (Appellant’s emphasis.) In the Chaney case we also said: “If Chaney was on a mission for his father, or was acting as the agent or servant of Ms father in driving the truck, his father would, of course, be liable for liis negligence in operating the truck. But, regardless of whether he ivas his father’s agent or on a mission, for him, if the father, knowing his habit of recklessness and incompetency because, of drunkenness, permitted the. son to drive the truck, and any injury occurred as a result of the son’s negligence, the father ■would be liable.” (Our emphasis added.) In the Chaney case we were talking about a common law liability which has never been repealed by statute. Additional liability has been added b3^ statute, however, where the entrust.ee is a minor child or ward who is incompetent under the statute to drive an automobile. Arkansas Statutes Annotated § 75-842 (Repl. 1957) provides as follows: “No person shall cause or knowingly permit his child or ward under the age of eighteen (18) years to drive a motor vehicle upon any highway when such minor is not authorized hereunder or in violation of any of the provisions of this act.” And Ark. Stat. Ann. § 75-343 (Repl. 1957) provides: “No person shall authorize or knowingty permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized hereunder or in violation of amr of the provisions of this act.” By Act 495 of 1961, Ark. Stat. Ann. § 75-315 (Supp. 1967), the legislature authorized an instruction permit or driver’s license for a child under 38 years of age upon the application of parents or responsible person (in the absence of parents) who will assume the responsibility imposed under the act. Subsections (c) and (d) of § 75-315 provide as follows: “If any person who is required or authorized lw Subsection (a) of this Section to sign and verify the application of a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct of said minor shall be imputed to such person or persons and such person or persons shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a driver’s license may or may not have been issued to said minor. For purposes of this Act, a minor is hereby defined to be any person who has not attained the age of eighteen (18) years. (d) The provisions of this Section shall apply in all civil actions, including but not limited to both actions on behalf of any actions against the person or persons required or authorized by Subsection (a) of this Section to sign the application in the manner therein provided.” Thus it is seen that in addition to the common law liability, as expressed in Chaney v. Duncan, supra, there is additional vicarious liability imposed by statute upon those persons who come within the statute and violate its provisions. There is no question that the appellant violated the statute. Tie admits that he entrusted the automobile to his fifteen year old son, Gary, and had done so before. He knew that young Baugher was with Gary when the entrustment was made and that they planned to use the automobile in going to a picture show theatre together. But, tlie appellant simply contends that the jury finding against him is inconsistent with the jury finding for the driver of his automobile in the same verdict and that a judgment entered thereon cannot stand. This case was not submitted to the jury on interrogatories apportioning negligence as between the parties and the verdict was general in nature. Section 75- 31.5 (c) and (d), supra, impose vicarious liability on the parent who is required to sign the application for his minor child’s driver’s license whether lie does so or not. Neither the appellant nor Baugher affirmatively alleged contributory negligence or assumption of risk in their answers to the complaint, and neither of them actually pleaded the guest statute in avoidance of liability. It seems admitted, however, that the appellee was the guest of young Baugher in appellant’s automobile. The court’s instructions under which the jury rendered its verdict- are not abstracted by the appellant, but at the request of the appellee the trial court gave to the jury AMI instruction 203 as the court’s instruction No. 5, as follows: “Harold J. Williams and Pamela Williams claim damages from E. A. Garrison and have the burden of proving each of four essential propositions : First, that they have sustained damages; Secondly, that E. A. Garrison was negligent in entrusting his automobile to his son, Gary Garrison ; Third, that George A. Baugher III the driver of the automobile, was guilty of operating the automobile wilfully and wantonly in disregard of the rights of others. Fourth, that the negligence of E. A. Garrison and the operation of the automobile wilfully and wantonly in disregard of the rights of others by George A. Baugher III were proximate causes of plaintiffs damages. If you find from the evidence in this ease that each of these propositions has been proved, then your verdict should be for the plaintiffs against E. A. Garrison; luit if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for E. A. Garrison.” The court gave as its instruction No. G, AMI instruction 203, at appellees’ request, as follows: “Harold J. Williams and Pamela Williams claim damages from George Baugher III and have the burden of proving each of three essential propositions : First, that they have sustained damages: Second, that George A. Baugher III was guilty of operating the automobile wilfully and wantonly in disregard of the rights of others; And third, that such operation of the automobile wilfully and wantonly in disregard of the rights of others was a proximate canse of plaintiffs’ damages. If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for the plaintiffs against George A. Baugher III; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for George. A. Baugher Til.” The record contains only one instruction requested by the defendant Baugher, and none at all requested by the appellant. Baugher’s requested instruction is designated court’s instruction No. 15A, which is AMI 612, and is as follows: “The defendant George A. Baugher III contends that Pamela Williams assumed the risk of her own injuries. To establish that defense George A. Bauglier III lias the burden of proving each of the following propositions: First: That a dangerous situation existed which was inconsistent with the safety of Pamela Williams. iSecond: That Pamela AVilliams knew the dangerous situation existed and realized the risk of injury from it. Third: That Pamela Williams voluntarily exposed herself to the dangerous situation which proximately caused her claimed injuries. If you find that all of those propositions have been proved by a preponderance of the evidence, then your verdict should be for George A. Bauglier III. If, on the other hand, you find that any one of these propositions has not been proved by a preponderance of the evidence, the defense of assumption of risk on the part of George A. Baugher III would fail.” The trial court, at appellees’ request, gave its instructions Nos. 10 and 11, AMT 501 and 502, as follows: “The law frequently uses the expression ‘proximate cause,’ with which you may not bo familiar. When I use the expression ‘proximate cause,’ I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred. This does uot mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause. When the acts or omissions of two or more persons work together as proximate causes of damage to another, each of those persons may be found to be liable. This is true regardless of the relative degree of fault between them.” The trial court also gave AMI 609 and 601 as the court’s instructions Nos. 14 and 15, at the request of the appellees, as follows: “11 is the duty of the owner of a motor vehicle to use ordinary care not to entrust it to a person who he knows or reasonably should know might permit it to be driven by an incompetent driver. There was in force in the State of Arkansas at the time of the occurrence a statute which provided that no person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under the statutes of the .State of Arkansas. (Ark. Stat. Ann. $ 75-343 [Repl. Vol. 1957]) A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.” The appellant does not complain of the instructions on this appeal, but simply contends that the appellant could not be liable until the jury first found young Baugher to be liable and appellant argues that the jury did not even find that young Baugher was negligent. Wc do not share appellant’s view that the jury, by its general verdict, found that young Baugher was not negligent. Buder the court’s instruction No. 5 it was necessary for the jury to find that Baugher was guilty of operating the automobile willfully and wantonly in disregard for the rights of others in the actual operation of the automobile before the jury could find against the appellant. How then, inquires the appellant, could the jury find for the appellees against the appellant and not against .Baugher under the instructions of the trial court. The answer lies in the court’s instruction No. 15A, supra, requested by Baugher and given as to him, on the assumption of risk. The appellant requested no such instruction and no such instruction ivas given as to the appellant. The jury could have found, and apparently from its verdict it did find, that although young Baugher was guilty of willful and wanton negligence, the appellee assumed the risk of riding with him and thereby waived her' right to recovery against him. If such was the finding of the jury, then the question is whether the appellee’s assumption of risk as to Baugher’s driving inures to the benefit of appellant and protects him against liability for his own separate negligence in placing the automobile in the possession and exclusive control of his fifteen year old son in violation of the statute. Although Ark. Stat. Ann. § 75-315 (c) and (d), supra, imputes the negligence or willful misconduct of a minor in possession of an automobile to the parent owner who places the minor in possession, the statute does not transfer to the owner, as a bar against his own negligence, all of the defenses the driver of such automobile may have against lawsuits for injuries to third parties. As to the proximate cause and causal connection between the negligent operation of the automobile by young' Baugher and the negligence of the appellant in entrusting the automobile to his fifteen year old son, it has been uniformly held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence and that it ought to have been foreseen in the light of the attending circumstances. Meeks v. Graysonia, Nashville & Ashdown R. Co., 168 Ark. 966, 272 S.W. 360; Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S.W. 647, 18 L.R.A.N.S. 905; St. L. & A. F. R. Co. v. Whayne, 104 Ark. 506, 149 S.W. 333; St. L. Kennett & A. E. Rd. Co. v. Fultz, 91 Ark. 260, 120 S.W. 984; Hays v. Williams, 115 Ark. 406, 171 S.W. 882; and Bona v. Thomas Auto Co., 137 Ark. 217, 208 S.W. 306. A shod excerpt from the appellee Pamela’s testimony is somewhat revealing on this point. She testified that Gary had let Harold King, Claudia Muller, Sherry Odom and others drive the car and then testified: “Gary was the only one who had a car and he had it every Sunday or every other Sunday and we would all sit in the car and talk. . .” “ Q. ... "When did you and George decide to go outside? A. In the theatre we decided to go outside and get in the car and talk and Gary handed me the keys and I thought well, a ’65 Thunderbird he’d keep it locked, and I just thought that was what it was for. And we were sitting in the car and he put the keys in the ignition and I thought we were going to listen to the radio and he started the car and I had seen him drive a Volkswagen before and so I just took it for granted that he could drive and then when he started the car up, it was power brakes and power steering, and there’s a difference in driving a Volkswagen and when he applied the brakes to stop at a stop sign he hit them real hard and it killed the car and it started rolling, almost hit a tree then and that’s when I decided I wanted to get out of the car. Q. Then what happened? A. Well, it was raining and tlie streets were real slick and when he went to turn the curve it — he turned the wheel too far and it started fish tailing and we started going into the wall and that’s when I screamed.” We conclude that the jury could have found that the appellant should have foreseen the natural and probable consequence of his negligence under the attending circumstances in this case. The Arkansas guest statute, Ark. Stat. Ann. § 75-913 (Repl. 1957) provides as follows: “No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of others.” The Kansas case of Bisoni v. Carlson, 237 P. 2d 404, was very much like the case here, on the principal points involved, and under similar statutory provisions. In that case an administrator brought suit for the wrongful death of a sixteen year old youth named Bisoni, against Clayton D. Carlson and his father, A. J. Carlson. A demurrer was sustained to the complaint by the trial court. It was alleged in the complaint that the decedent, Bisoni, and several other boys, were invited by young Carlson to take a ride in a 1933 Ford automobile owned by his father, A. J. Carlson, the automobile having defective steering apparatus and defective brakes. The complaint then alleged that young Carlson drove the automobile in such manner as to constitute willful and wanton negligence and as a result he lost control of the auto mobile causing Bisoni to suffer the injuries'from which he died. The complaint alleged that A. J. Carlson knew, or had reasonable cause to know, of his son’s negligence and careless disposition, and that he negligently allowed young Carlson to drive and operate the automobile. The counsel for appellant argued that the complain! was ample, if established, to hold A. J. Carlson liable either under the rules of the common law or under the statute. Counsel for appellee admitted that if it were not for the guest statute, the complaint stated a cause of action against A. J. Carlson, but he contended that unless the plaintiff, under the allegations of the complaint, was entitled to recover against the defendant driver, Clayton I). Carlson, under the guest statute, he would not bo able to recover from either of the defendants. The statute relied upon by the appellant-read as follows: “Every owner of a motor vehicle causing or knowhigly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.” In reversing the trial court, the appellate court said: “Statutes of this kind extend the common law rule of liability of the owner. They have been sustained as a valid exercise of the police power and have been applied in harmony with their terms to the facts alleged or established. The negligence of A. ./. Carlson occurred when he permitted his son, Clayton, to use the car on the highways, although the amount of his liability would be measured, by the exlent of the damages resulting from the negligence of Clayton in drwing the car. (Emphasis supplied.) The statute as applied here makes A.. J. Carlson and Clav!on c jointly and severally liable’ for such damages. # # # ..here we have a statute fixing a severable liability. We thing the word ‘severalty’ in the statute cannot be ignored. (Emphasis supplied.) Here the tort was not join tty committed. A. J. Carlson committed his wrong when he consented to Clayton D. Carlson driving the car, and Clayton I). Carlson having committed his wrong later when be was driving it. A. J. Carlson had previously made himself liable for any damages caused by Clayton’s negligence. G-. S. 1949, 8 — 122b, relied upon by appellees, reads: ‘That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle. (Our-italics.) ’ Counsel for appellant contend that the only ‘owner’ mentioned in this statute is the one who is transporting a person who claims damages. That conclusion seems to be justified by the language of the statute, as seems clear by1" omitting the words we have italicized, ‘or operator,’ in the two places where they occur. In this interpretation the statutes are not conflicting. We think the result is that A. J. Carlson is liable under G. S. 1949, 8 — 222, and that G. 8. 1949, 8 — 122b, does not limit that liability. ’ ’ It will be noted that under the 1961 Act, Ark. Stat. Ann. § 75-315, supra, the liability of the owner of an automobile under subsection (c) is not limited to the negligence of the minor when driving a motor vehicle up on the highway, nor is it limited to negligence or willful misconduct of such minor in the operation of a motor vehicle. On the contrary, § 75-315 (c), supra, provides that where a parent knowingly causes or permits his child under the age of eighteen years to drive a motor vehicle upon any highway then the negligence or willful misconduct of said minor shall be imputed to such parent and lie “shall lie jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct.” The jury apparently found that the appellee assumed the risk of the willful and wanton negligent conduct of young Baugher and thereby waived her right of recovery against him. The jury did not find, nor were they requested to find, that the appellee assumed the risk of appellant’s own wrongful act of negligent and unlawful entrustmeut and we are unable to say, that as a matter of law, she waived her right of recovery against him. The judgment is affirmed. Fogleman, J., concurs.

Bakee, J. The appeal in this case is from a judgment rendered in the Lincoln circuit court of February 14, 1938. The appellee had sued the appellant for $203 for damages alleged to have been sustained in the following manner. The appellee owned a team of mules. During the month of May, 1937, they were hitched to a wagon and were driven by two negro employees of the appellee along state highway No. 13 near Yorktown in Lincoln county. A servant or employee of the appellant was driving a truck along the said highway behind or to the rear of the wagon to which the mules were hitched going in the same direction. As he approached the wagon and team of mules he began sounding his horn which caused the mules to take fright. One of the negro employees in the wagon signaled to the truck driver attempting to have him desist from sounding the horn, but it is charged that this servant trailed or followed the mule team and continued to sound the horn until the team ran away. Some damage was done to the wagon. The team broke loose from the wagon, ran off the highway and down an embankment and into a tree. One of the mules was apparently uninjured, but the other is said to have had slight cuts on his legs, but was thought to have suffered only minor injuries. An attempt was made to use the team for several days thereafter. The mule that had been slightly injured, as it was thought, would stop to rest. One of the.'negro witnesses in‘ describing the condition of the mules after the injury, said .that the mule that later died was faster than the other, that it took two or three to catch him, that after the injury anyone could go to him and catch him, that he was “ldnda stove up,” that he worked him straight along during the following week, but he acted like he didn’t want to eat anything. While he was ploughing him about a week later the mule fell dead. The proof developed that the wagon did not belong to the plaintiff, Mr. White. It was one that he had borrowed, but after the accident he had it repaired at the expense of $13, which he paid. Proof also showed the mule that died or was killed to be of the value of $190. There were two matters presented upon this appeal. One is that the evidence is insufficient to support the verdict for the value of the mule and the second is that the plaintiff had no right to recover for the damages done to the wagon that he did not own. The manner in which this runaway was caused is presented upon conflicting testimony. Appellant’s servants ■ deny that there was any negligence or improper conduct and present this case to the effect that the driver of the truck was merely following a wagon and team and gave the sig'nal of his intention to pass. The proof, however, presented on the part of the appellee and by witnesses other than those connected with the incident is to the effect that the truck driver, as he approached the wagon and team of mules, began sounding his horn and notwithstanding the fact that the mules were frightened and began to run, continued to follow or trail the wagon and team until the team had broken loose from the wagon and ran away. This certainly was a disputed question of fact and the jury has decided that question against appellant’s contention and that matter is now settled that there was negligence and the evidence is certainly substantial to support the verdict. In the absence of any controlling statute or other authority we would be impelled to hold that the conduct of the driver of the truck, as described by the witnesses, was negligent and that the master would be liable for any damages caused thereby. Section 6640 of Pope’s Digest prescribes the duties of one driving an automobile when he meets a frightened team and the opinion in the case of Hardy v. Cloe, 165 Ark. 253, 263 S. W. 968, is to the same practical effect. Only an effort to fill space would justify further discussion of that matter. It is argued that the injuries to the mule were not sufficient to cause his death. It is true that the appellee and his servants did not think the mule was injured very seriously at first, but the proof is not disputed that from and after the day of this runaway, when the two mules ran down the hill and were brought to a stop, one on one side of a tree and one on the other, one was injured. The injured mule, though he was worked after-wards did not recover. Though he had been hard to catch or bridle prior to that time, and it had sometimes taken as many as three to catch him, he gave no further trouble in that respect; although he was “high strung,” .quick and energetic, they had to stop and rest him frequently as he worked, and although they thought he would get better as he had time to get over the soreness caused by the runaway, he died within a week without real improvement. He fell and died while they were working him. We are asked to reverse this case because this evidence is unsatisfactory, at least, to appellant to show that the death of the mule was caused by injuries received in .the runaway. We cannot arrogate to ourselves any superior knowledge of the cause of the mule’s death and loss to the owner over and above what was had by the trial court and jury. The matter was properly submitted to a jury for its determination and the verdict of the jury is final. The evidence is substantial. The other matter which we are asked to consider and reverse is the .judgment for damages to the wagon and it is suggested that if this judgment is permitted to stand the owner can now sue and recover a judgment for a like amount and the appellant would then have to pay twice. The appellee was in possession of the wagon, perhaps under obligation to take care of it, felt responsible for its condition, as a result of the accident. At any rate the proof is that he had the wagon repaired, that it cost $13 to restore it to its former Condition; that Mr. White, the plaintiff, had paid that bill and the owner was not thereby damaged or injured. The only party suffering loss was Mr. White. The amount of his loss is not questioned nor is the method of proof. It is perhaps unnecessary to attempt a further discussion as the law of bailor and bailee is well known and established. In 3 R. C. L. 128, § 50, we find a statement substantially to the effect that it is a well settled rule that, as against a stranger or wrongdoer, a gratuitous bailee who is in the actual or exclusive possession of a chattel, may recover possession in his own name against such stranger or wrongdoer who attempts to retain said property. It is also said in 6 C. J., pp. IMS, 1150, § 111, that a bailee in possession of property had special interest in it such as to entitle him to sue third persons for losses and injuries to the property or for disturbance of his possession, etc. This probably results from the fact that bailee is responsible for minor repairs. 8 C. J. S., p. 257, § 24. Surely under this case the owner of the wagon who has suffered no loss or damage could not recover any. There is no prejudicial error. Affirmed.

John I. Purtle, Justice. This case arises from the verdict of a jury on a suit between two Arkansas real estate brokers over the division of a sales commission. A verdict granting one broker half of the commission from the sale by the other broker is brought here on appeal as a matter of right. Appellant contends the trial court erred in denying a directed verdict; failing to grant judgment n.o.v.; failure to give proffered instructions; and that the contract sued upon was illegal and unenforceable. We agree with the trial court in rejecting the request for a directed verdict and refusing to grant ajudgment n.o.v.; also, that the requested jury instructions were not proper and the contract sued upon was valid and enforceable. Appellee, Harold Gottlieb, a licensed real estate broker in Hot Springs, Arkansas, received information from a New York broker in July 1976 which related to certain property in Hot Springs which the New York broker claimed to have listed for sale. The New York broker was not authorized to sell real estate in Arkansas. The information sent to appellee generally described the property for sale but contained a considerable amount of incorrect information. Appellee made several unsuccessful attempts to sell the property in 1976. Sometime in March of 1977 appellee contacted Rainey Realty, Inc. of Little Rock about working on the sale of the property; however, Rainey suggested Circle Realty Company, a licensed real estate company in Little Rock, might be more likely to find a buyer than Rainey. A representative of Circle Realty Company, Mike Hedrick, discussed the possible sale of the property with appellee on the same date. Appellee left information with Rainey who subsequently passed it on to Circle. Appellee testified he reached an agreement with Circle that if a sale was made by either Circle or Rainey the commission would be divided 50-50 between the two Little Rock brokers on one hand and the appellee and the New York broker on the other. This was denied by appellant during the trial. Rainey testified he always intended to give appellee some kind of a referral fee. Appellant, Circle Realty, subsequently determined the New York broker did not have an exclusive listing nor an Arkansas license. Appellant and appellee jointly showed the property to a prospect who eventually purchased the property. However, appellant had to dig up most of the information about the property in order to make the sale. The property was sold in May of 1977 but no part of the commission was given to appellee and the appellant refused to pay him anything. The contention was that appellee’s claim for participation in the commission came through the New York broker who was not authorized to do business in Arkansas and, therefore, the contract was void. Appellee filed suit in the Pulaski Circuit Court against Rainey and Circle claiming half of the $30,000 commission which had been paid to Circle. His suit was based upon the alleged oral agreement between the Arkansas brokers. Rainey settled with appellee prior to submission of the case to the jury and was dismissed from the suit. Appellant resisted the claim and the jury awarded appellee $15,000. The commission had been paid by the purchaser pursuant to agreement prior to the sale. Appellant insisted all the way through the transaction and trial, and continues to do so in this Court, that an essential element of the contract was that appellee must prove the New York broker held a valid property listing from the owner. This was the basis for the motion for a directed verdict and for the judgment n.o.v. This was also the main element in the refused jury instructions. Appellant freely admits it was appellee’s efforts which set in motion the chain of events which ultimately culminated in the sale of the property in question. We think appellant misunderstands the law on the subject. It correctly states the law as it relates to a commission on the sale of real estate when the owner and a broker are involved. However, here we are dealing with a contract between two brokers, neither of which held an exclusive listing on the property which was sold. Further, the owner is not being charged a commission but rather the purchaser has paid it. All of the cases cited by appellant involve a dispute between the owner and a broker. A contract or agreement between two brokers is binding and enforceable in the same manner as contracts between other contracting parties. It makes no difference in this case whether anyone had a listing to sell the property because it was in fact sold on agreeable terms. Although we find no Arkansas case in point, other jurisdictions have held one broker may recover from another broker even though a suit could not properly be brought against the owner to recover a commission. Hohenberger v. Schnitzer, 235 S.W. 2d 466 (Tex. Civ. App. 1951). See also 12 C.J.S. Brokers § 81 which states: In order that one broker may recover a share of the commission of another broker it is necessary and sufficient that there be a valid, existing, and applicable agreement between them for a division of the commission, that plaintiff shall have performed his part of the agreement, and that defendants shall have actually received the commission. Where there is such an agreement, it is binding and enforceable and the rights of the parties are governed by its terms and the proper construction thereof, rather than by the contract of sale or exchange or by the ordinary rules which govern the rights of real estate brokers to commissions for sales of land. * * * Appellee’s requested Instruction No. 6 was given without objection and is a correct instruction. It simply stated that appellee could not recover unless the jury determined (1) that Circle Realty Co., Inc. agreed to share the commission on a 50% basis with Harold Gottlieb, and (2) that Gottlieb performed his portion of the agreement. Therefore, the jury was properly permitted to determine the factual issue of whether the parties had an agreement to split the commission. In testing the sufficiency of the evidence as being substantial on appellate review we need consider only the testimony of the appellee and any other evidence favorable to him. Love v. H.F. Construction Co., Inc., 261 Ark. 831, 552 S.W. 2d 15 (1977). If there is substantial evidence to support the decision, it will be affirmed. Bradley v. Hendricks, 251 Ark. 733, 474 S.W. 2d 677 (1972). The jury is the sole judge of the credibility of the witnesses and if there is substantial evidence to support the verdict we affirm. Bradberry v. Gower, 247 Ark. 700, 447 S.W. 2d 124 (1969). We review the evidence on appeal in a light most favorable to the jury verdict. Sardin v. Roberts, 244 Ark. 312, 424 S.W. 2d 889 (1968). In view of the law and the facts as presented in this case, we find no reversible error. Affirmed. Harris, C.J., not participating.

John I. Purtle, Justice. This case arises from a tort action on behalf of the parents and estate of the decedent who was driving an automobile when it was struck by a train. The jury, by interrogatories, found decedent’s negligence prox imately contributed to the occurrence and that the appellees were not guilty of any negligence which proximately caused the injuries and damages. From the jury’s verdict appellants bring this appeal. Appellants contend the court erred in rejecting evidence of prior accidents at this crossing; allowing an officer to orally reconstruct the accident; rejecting testimony of a local resident about the history of accidents at this crossing; and by refusing to give AMI Instruction 502. We find no error in any of the rulings by the trial court and affirm the judgment as entered. Decedent was driving a vehicle south on State Highway 39 where it intersects U.S. Highway 64, in the community of Fair Oaks in Cross County, Arkansas, when she was struck by the northbound train as she proceeded across the railroad on U.S. Highway 64. Highway 39 stops at Highway 64, about 65 feet east of the Cotton Belt tracks. To continue south on Highway 39 the decedent had to turn right on U.S. Highway 64 to cross the tracks. Highway 39 then continues south a short distance after it crosses the railroad. The collision occurred about 3:40 p.m. on November 24, 1974. There is evidence that the railroad signal lights were flashing, the whistle blowing and the bell ringing. Decedent was driving about 10 miles per hour when she pulled on the tracks in front of the train which struck her vehicle. Appellants attempted to prove several prior accidents at this crossing which certainly has had its share of accidents. Part of the proof was statistics compiled by the Arkansas Highway Department purporting to show the crossing to be abnormally dangerous. The computer printout maintained by the highway department contained a number of reported accidents at this crossing for the past 15 years. The highway department had classified this crossing as a hazardous one. The rating did not take into consideration certain improvements made by the railroad in 1964 nor did the printout describe the conditions and circumstances of each accident. The court rejected the highway department’s figures which were then proffered by the appellants. Appellants also offered the testimony of a local resident to the effect that there had been many accidents at this crossing during the time he lived in Fair Oaks. This testimony was also rejected by the court but proffered by the appellants. Additionally, appellants had propounded interrogatories to the appellees which answers revealed prior accidents at this crossing. After the unfavorable ruling by the court concerning prior accidents these interrogatories were not offered into the record. None of the witnesses presented testimony that the other accidents occurred under substantially similar circumstances to those existing at the time of the accident in question. Most, if not all, of the other accidents occurred in the early morning or late afternoon and involved vehicles traveling east and west on U.S. Highway 64 when the sun was shining directly into the drivers’ eyes. The state trooper testified that the sun would have been shining from the right of a person headed south on Highway 39 at the time of this accident. He stated what could be seen by a driver at the time of his observations which were about an hour and a half after the accident. We believe his observations were close enough in point of time to allow him to state his observations to the jury. There was some evidence that there was a large, red truck in the area which may have partially obstructed the view of the decedent and/or the train crew. However, appellants did not plead or offer proof that the large, red truck was a proximate cause of the accident. The court refused to give AMI Instruction 502 which relates to concurring proximate causes. We have previously held before other accidents may be offered to show a dangerous or defective condition, and thereby notice to the defendant, it must first be shown there is a substantial similarity of conditions in the proof as to make it reasonable or probable that the same causes or conditions produced the same or similar results. Bush v. Taylor, 130 Ark. 522, 197 S.W. 1172 (1917); St. Louis Southwestern Railway Co. v. Jackson, 242 Ark. 858, 416 S.W. 2d 273 (1967); and Chicago Rock Island & Pacific Railroad v. Lynch, 246 Ark. 1282, 441 S.W. 2d 793 (1969). None of the witnesses in the present case testified to conditions and circumstances which tended to make it appear probable or reasonable that the decedent’s vehicle was traveling under substantially similar conditions as those of the drivers in the other occurrences. Even considering the evidence which was proffered, we cannot say the trial court erred for the reasons above stated. AMI 502 is to be given when there are concurring proximate causes. The note on use specifically states it is not to be given when the case is submitted on interrogatories. Since AMI 501 was properly given, it was not error to refuse to give AMI 502. Affirmed.

Carleton Harris, Chief Justice. This is the second appeal in this case. Bill Stout was charged with the crime of murder in the first degree for the killing of Winfred Lee Jones on March 27, 1967. On the first trial, he ivas found guilty of manslaughter, and given a sentence of two years in the state penitentiary. This court reversed the judgment specifically because the trial court did not require the Prosecuting Attorney to produce a written statement of Stout and another witness, although in cross-examining defendant, the prosecutor made frequent references to the purported state ment made by Stout in writing which conflicted with defendant’s testimony. This court also, though finding that the defendant was not entitled to an instruction on self-defense, held that he would have been entitled to an instruction covering excusable homicide, and an instruction was suggested in line with that in the case of Curry v. State, 97 S.E. 529 (Georgia, 1918). On the second trial, Stout was again convicted of manslaughter, but, instead of receiving a two-year sentence, was given a five-year sentence. From the judgment entered in accord with the jury verdict, appellant brings this appeal. Five points are urged for reversal, which we proceed to discuss, though not in the order listed by appellant. It is asserted that the evidence is insufficient to support the verdict, and appellant’s motion for a directed verdict should have been granted. This point is the last raised by appellant, and less than two pages of the brief are devoted to it. It is apparently recognized that this contention is difficult to support, and we quickly find it to be without merit. The facts in this case are fully set out in our opinion on the first appeal, Stout v. State, 244 Ark. 676, 426 S.W. 2d 800, and there is no need to detail them again. Suffice it to say that appellant shot and killed Jones with a pistol at the former’s home, Stout testifying at the first trial that Jones arose from a couch and “went to his left hand pocket again,” and that he (Stout), thinking Jones might have a pistol, then fired, though he had no intention of hurting Jones. He said that his only purpose in firing was to shoot over the victim’s head and frighten him into leaving the house. At the second trial, Stout did not take the witness stand; the state’s case was based on the testimony of officers, who testified relative to conditions found at the house when they arrived, and also to appellant’s statements with regard to the shooting. In his brief, appellant, in referring to the statements made to officers, says: “* * * Through these statements there is one consistent dominant theme. Stout claimed that he did not intend to harm or injure Jones. * * * “How can Stout’s statements that he did not ini end to harm Jones be separated from his statement that he pulled the trigger. It seems to us that the jury was not at liberty to pick and choose. If they believe he did the shooting, could they logically reject for no reason whatever, his statement that he did not intend to hit Jones. “This is not the case where the jury actually heard Stout and could determine what to believe and not to believe. All the Jury heard was the officers repetition of what Stout said to the officers. ’ ’ Appellant overlooks the fact that one of the officers (John Ames) testified that appellant, upon being asked why he shot Jones, replied, “Oh, Ames, it was just jealously, I guess.” For that matter, the jury, of course, did not have to accept as the full truth everything told the officers by appellant. They had the right, in viewing all the circumstances, to find the statement that he did not intend to hurt Jones, to he entirely self-serving. The majority of the court is of the view that this judgment should bo reversed, but the opinion in this (-ase cannot serve as a precedent for future cases, because no four members agree on any one ground of reversal. The writer, together with Justices Brown and Holt, thinks error was committed as asserted in appellant ’s Point 3, said point stating that tho court erred in instructing the jury that Stout could be sentenced to a greater period of imprisonment than two years. The penalty for voluntary manslaughter is imprisonment for a period of not less than two, nor more than seven years. Ark. Stat. Ann. § 41-2229 (Repl. 1964). As stated, Stout only received a two-year sentence at the first trial, but was given a five-year sentence on the second occasion. It is the position of the state that, since this sentence is within the term prescribed for the offence of voluntary manslaughter, the judgment is entirely legal and valid. All agree that a defendant cannot be re-tried for a higher degree of homicide than that in the first trial. See Johnson v. State, 29 Ark. 32. The state courts of the several jurisdictions are not in agreement as io the proper rule. Even the federal courts have disagreed. For instance, in Patton v. State of North, Carolina, 381 F. 2d 636 (1967), the facts reveal that Patton, in October, 1960, was convicted of armed robbery after a plea of nolo contendere, and sentenced to twenty years’ imprisonment. No appeal was taken, but in 1964, Patton applied for a state post-conviction hearing, and on the basis of the decision in Gideon v. Wainwright, 372 U.S. 335, was awarded a new trial. He pleaded not guilty, but was convicted by the jury on the original indictment. It was brought to the attention of the court that Patton had already served nearly five years for the offense. The judge imposed a sentence of twenty-five years, and then deducted five years for the amount of time served. The United States Court of Appeals for the Fourth Circuit affirmed the holding of the Federal District Court (Western District) of North Carolina that the sentence was so fundamentally unfair as to constitute violation of the due process and equal protection clauses of the Fourteenth Amendment. Tn doing so, the court said: “* * * Although the trial judge paid lip service to the idea of crediting Patton with that portion of the initial twenty-year sentence already served, he actually increased Patton’s punishment by imposing, in effect, a twenty-five-year sentence and then deducting five years for the time served. Thus, as a result of seeking and obtaining a new trial, the prisoner, who originally would have been eligible for parole in October 1965, now, it is agreed, will not become eligible until February 1970. “Eegardless of whether the action of the sentencing judge is verbalized as a twenty-year sentence without credit for the five years already served, or as a. twenty-five-year sentence with credit, the sentence is to compel the defendant to serve five years longer to become eligible for parole, than he would have been required to sei’ve had he not asserted his constitutional right to a fair trial. “* * * In order to prevent abuses, the fixed policy must necessarily be that the new sentence shall not exceed the old. Seldom will, this policy result in inadequate punishment. Against the rare possibility of inadequacy, greater weight must be given to the danger inherent in a system permitting stiffer sentences on retrial — that the added punishment was in reaction to the defendant’s temerity in attacking the original conviction. Even the appearance of improper motivation is a disservice to the administration of justice.” The court also held that the constitutional protection against double jeopardy is violated if an increased sentence, or a denial of credit, is permitted on re-trial, stating: “Double jeopardy, rather than being a single doctrine, is actually comprised of three separate though related rules, prohibiting (1) reprosecution, for the same offense following acquittal, (2) re-prosecution for the same offense following convic tion, and (3) multiple punishment for the same offense.” Pointing out that the Supreme Court has said in Green v. United States, 355 U.S. 184 that an accused may not be reprosecuted for the offense of which he was acquitted at the first trial, the Circuit Court then held that a penalty at the second trial, more harsh than the one received at the first trial, had the effect of placing him twice in jeopardy of punishment for the same offense. This holding was based partly on the “implied acquittal” doctrine, and in part on a different aspect of double jeopardy — the prohibition against multiple punishment. Ex Parte Lange, 85 U. S. (38 Wall.) 163. See also Kennedy v. U. S., 330 F 2d 26 (1964). To the contrary, the United States Court of Appeals for the Third Circuit held in United States v. Russell, 378 F. 2d 808 (1967), that constitutional standards of due process were not violated though Russell received a more severe sentence when he was sentenced the second time. The court said: “* * * Accordingly, it can be said the later sentence imposed by Judge Shugart was well within the limits fixed by the law, as the petitioner could have been sentenced for a period up to ten years on each count. Here, the decision to impose the sentence given within the discretion of the trial judge who had an opportunity to see and hear the accused and his witnesses.” Still, a third view was taken by the United States Court of Appeals for the First Circuit, wherein it was held that the sentencing court should be permitted to impose a greater sentence upon retrial if circumstances disclosed in a pre-sentencing report warranted such, a step. Marano v. U. S., 374 F. 2d 583 (1967). It is interesting to note, however, that the court of appeals held that the trial court is not justified in increasing a sentencie, following a successful appeal, on the basis of additional evidence offered at the second trial. The Supreme Court of Wisconsin, in State v. Leonard, 159 N. W. 2d 577 (1968), held that on retrial, if there is a second conviction, a trial court is barred from imposing an increased sentence, unless events occur subsequent to the first imposition of sentence which warrant an increased penalty; even then, the court is required to affirmatively state its grounds for increasing the sentence. The opinion points out, however, that a numerical majority of the decisions from other jurisdictions support the position that upon reconvietion and resentencing for the same crime, the trial court may increase the sentence, and, in fact, may assess any sentence it believes appropriate within the maximum set by statute; it is stated that these courts have primarily premised this holding on the theory that, in appealing from a conviction, a defendant assumes the risk of a more severe sentence, and he must accept the hazards, as well as the benefits, that could result therefrom. In the case before us, in taking the view that Stout could not receive a greater sentence upon the second conviction than was given him at the first trial, the three justices heretofore mentioned are not particularly persuaded by Patton v. State of North Carolina, supra. State v. Leonard, supra, or the views of any court, state or federal, which has held an increased sentence on a second trial to be a violation of constitutional standards. Rather, we take this view because we feel that this question has already been passed upon by our own court. In the case of Sneed v. State, 143 Ark. 178, 219 S.W. 1019, the defendant was convicted of the crime ot murder in the first degree, it being charged that he had poisoned his wife, and the jury fixed his punishment at life imprisonment. This conviction was reversed, and Sneed was again tried, and again convicted of first degree murder. Sneed v. State, 159 Ark. 65, 255 S.W. 895. During the second trial, several references were made to the first trial, and the court instructed the jury that the former trial of the case and the result were not to be considered by the jury in reaching a verdict, except that, if the jury should find the defendant guilty of first degree murder, they could only fix his punishment at imprisonment in the state penitentiary for life. The appellant complained that this instruction was error, and that the jury should have been told that they could not consider the former verdict for any purpose. In holding that no error had been committed, this court said: “* * * There was no error in the instruction, and it was a proper one to give. References to the former trial had been made throughout this trial, during the selection of the jury, the opening statement of counsel, the taking of testimony, and the arguments of counsel before the cause was finally submitted. The instruction therefore was proper, and, if any prejudice had been lodged in the minds of the jury by these references, this instruction had the effect to remove it. The instruction was tantamount to telling the jury that they could not consider the former trial or verdict as evidence in the cause, and thus fully met appellant’s objection in this respect. The effect of the instruction was to tell the jury that, as appellant had once been put upon trial for murder in the first degree and the punishment in that case fixed at life imprisonment, if they should return a verdict of guilty they could not punish him by death. It was proper for the court to instruct the jury as to the form of its verdict and as to the punishment, in case they should return a verdict of guilty, so that they might not be ■misled and possibly return a verdict in a form that would result in a mistrial because of former jeopardy.’ The above italicized language, as far as the three justices who adhere to this view are concerned, is conclusive. Article 2, Section 8, of the Arkansas Constituí ion, cited in Sneed, provides, inter alia, that “no person, for the same offense, shall be twice put in jeopardy of life or liberty.” It is true that in Sneed the result of our decision was that a man could not be twice placed in jeopardy of losing his life; of course, it is generally considered that losing one’s life is a greater punishment than imprisonment, but we see no legal distinction, nor does our Constitution make any such distinction. The quoted portion of Article 2 says that one shall not be twice placed in jeopard)" of “life or liberty.” The fact remains that the holding in the second appeal, Sneed v. State, supra, was that Sneed could not be given a greater punishment on the second trial than he received at the first trial — even though he was tried the second time for the same degree of murder'— identically the same offense — for which he had originally been tried. As stated, the view expressed herein is that of only three justices, hut even though a majority of the court agreed, such an error would not call for a reversal, for it could be remedied by reducing the prison sentence to two years. Justices Fogleman, Byrd, and Holt, are of the opinion that appellant’s requested instruction No. 2 should have been given. This instruction told the jury that, if it found that Jones was intoxicated and engaged in such actions as constituted an apparent threat to Stout and his family, and that Stout was endeavoring to remove Jones from his home; that Stout reasonably believed that Jones was armed with a knife and might do him bodily harm; and that Stout fired the fatal shot for the purpose of attempting to scare or frighten Jones, then the killing did amount to excusible homicide, and Stout should be acquitted. It is the writer’s view, along with that of Justices Smith, Brown and Jones, that any possible error in failing to give this instruction was cured by the giving of appellant’s requested instruction No. 5, which told the jury that acts committed by misfortune or accident should not be deemed criminal where it appeared there was no evil design, intention or culpable negligence, and that, if the jury believed that the death of Jones was the result of an accident, free from the elements mentioned, Stout should be acquitted. A concurring opinion setting out the views of the aforementioned justices, who feel that the failure to give the instruction constituted reversible error, is handed down on this date. Certain remarks were made to the jury by the attorney for the state, which appellant contends constituted a comment by that official on the failure of appellant to testify. The writer, and Justices Byrd and Holt are of the opinion that there is merit in this contention. This finding of error is principally based on the fact that the state’s attorney repeatedly made statements which could well impress the jury with the fact that there was some reason why appellant did not testify. Some of the statements made were as follows: “ * * * I want to call your attention to this one thing. Whatever evidence was offered here was offered by the State of Arkansas. The lips of the Jones boy are sealed. They are sealed in death, and he cannot come here to tell you the story that lie knows and the story that happened out at the Bill Stout home on this particular day. We can’t bring him back here to testify; but I want to say to yon, Ladies and Gentlemen of the Jury, that there was a house full of people there, and how many of them has the defendant brought to you, — ” “* * * Now then in the other trial the defense was self-defense — ” ‘ ‘ * * * The defendant in this case does not even claim that he was about to do him bodily harm or that there was anything that he was afraid of — ” In Perry v. State, 188 Ark. 133, 64 S.W. 2d 328, the prosecuting attorney commented to the jury: “In fact, the defendant has not denied a single, solitary iota of evidence that .has been given against him from the stand here today.” We held that the effect of this language was to call to the jury’s attention the failure of the defendant to testify, and reversed the conviction. Another suggested error relates to the fact that the record reflects that the court told the jury that appellant was being tried on a charge of involuntary manslaughter. This obviously was a typographical error, but there is no reason to discuss the contention, since it is not likely to arise on another trial. The next asserted error deals with opening remarks of the state’s attorney; though no objection was made, we discuss the contention, since the case is being remanded and likely will be tried again. In his opening statement, the prosecutor mentioned the fact that written statements taken from witnesses would bo introduced in evidence, and he added, “those statements will be here, and you all may look at them. There is going to be some deviation from those statements, at least by the defendant.” Actually, none of the statements were introduced for any purpose, and, as previously stated, the appellant did not take the stand. Further, the prosecutor said: ‘ ¡ * # # that there was no effort made at all by the deceased to try to harm Mr. Stout, and you will be confronted with the fact that it is pure fabrication for him to come in here and tell you that he was being attacked with a knife in order to make you believe his side of the story.” The purpose of an opening statement is to inform the jury of the evidence that will be offered on behalf of the party represented, and, of course, the state’s attorney should not refer to evidence that he has no intention of offering. For that matter, we do not know just how the statements from the witnesses could have been referred to unless a witness testified contrary to his or her original statement, and the prosecutor had claimed surprise and obtained the permission of the court to cross-examine the witness with regard to the inconsistency. In Shands v. State, 118 Ark. 460, 177 S.W. 18, we said: “ * * * The affidavit and the letter set out in the statement of facts were not competent as affirmative matter tending to show the guilt of the accused, but they became competent for the pnrpose of contradicting and impeaching the prosecuting witness when she testified that appellant had never at any time iiad intercourse with her. But for this denial they would not have been competent. But the denial made them admissible, as the party producing a witness, when surprised by adverse testimony, may show, for the purpose of impeachment by contradiction, that the witness has made prior statements inconsistent with the one made on the stand. ’ ’ There is no reason for the attorney representing the state to comment upon the evidence that will be offered by the defense — for the very simple reason that he does not know what evidence will be offered. This is made obvious by the fact that the prosecutor made reference to what the defendant (appellant) would say in testifying, when in fact, it developed that the defendant did not testify at all. In view of a retrial, a similar matter should be mentioned. It is claimed that error was committed during the testimony of Jannie Medlock Chambers, a stepdaughter of appellant, who was placed on the witness stand by flic state. The alleged ¡error relates to the prosecutor’s reference to a purported conflicting written statement made by the witness following the shooting. We have just pointed out that it is permissible to cross-examine one’s own witness when one is genuinely surprised by the testimony given, and states that fact immediately to the court; also when a witness is known to be hostile, the court has discretion to allow latitude in the examination of such a witness. Ward v. State, 85 Ark. 179, 107 S.W. 677. Otherwise, the reference is error. One other alleged error refers to the fact that a small son of the deceased commenced to cry and left the courtroom in tears while the prosecuting attorney was making his argument. There is nothing in the record to reflect that this was “staged,” and the trial court admonished the jury to disregard the incident. Reversed and remanded. Fogleman, Byrd & Holt, JJ., concur. George Rose Smith and Jones, J'J., would affirm. John A. Fogleman, Justice. Judges Byed, Holt and I are of the opinion that the trial court’s failure to give appellant’s requested instruction No. 2 constituted reversible error. This instruction is strikingly similar to one approved by this court in Maddox v. State, 217 Ark. 849, 233 S.W. 2d 542. That one was held to be sufficient to justify the refusal of self-defense instructions because it was responsive to the appellant’s theory of the case. The instruction there told the jury that if it should find from the evidence' ‘ ‘ * ® * that the deceased, in a violent, riotous and turbulent manner undertook to force his way into the restaurant of the defendant, then the defendant would have a right to use a show of force to prevent such forcible entry by the deceased, and if the deceased did so undertake to force his way into the restaurant and the defendant presented a pistol in order to prevent his act of forcibly entering, and a scuffle ensued over the pistol and the pistol was accidentally fired and [Sheppard] was killed, you will acquit the defendant.’ ” It is consonant with the instruction suggested in Curry v. State, 148 Ga. 559, 97 S.E. 529 (1938), to which we said, on the former appeal in this case, appellant would have been entitled. See Stout v. State, 244 Ark. 676, 426 S.W. 2d 800. Even though self-defense is not now asserted, the principle involved is the same. There is no doubt that the instruction requested was a correct one. One has the right to eject another from his home, whether trespasser or invitee, and to use force to do so when quiet means fail. McCoy v. State, 8 Ark. 451; See Annot., 67 L.R.A. 544, 25 A.L.R. 523, 32 A.L.R. 1543, 34 A.L.R. 1488. The failure to give a correct instruction must be presumed to be prejudicial error un less it otherwise appears. Beevers v. Miller, 242 Ark. 541, 414 S.W. 2d 603. The majority hold that the giving of appellant’s requested instruction No. 5 was sufficient to cure any error. We do not feel that this position is tenable. Excusable homicide is homicide by misadventure, i.e., where a person in doing a lawful act, without any intention of killing, unfortunately kills another. Ark. Stat. Ann. § 41-2243. Stout v. State, supra. Nowhere in any instruction given did the court indicate to the jury that, if they found appellant’s theory of the case to be correct, he was doing a lawful act. Appellant was entitled to have the jury so advised. Under similar circumstances, we have held that one who contended that a weapon was accidentally discharged, while he was engaged in lawful acts of self-defense, was entitled to an instruction on justifiable homicide even though an instruction on accident was given. Jordon v. State, 238 Ark. 398, 382 S.W. 2d 185. The same principle applied here would require a reversal of this case. Even if tlie court’s instructions could be said technically to cover the matter in a general way, the defendant was entitled to have the court correctly and clearly apply the law to the facts of the case, unless it appears that prejudice has not resulted. Beevers v. Miller, 242 Ark. 541, 414 S.W. 2d 603. We do not see how we can say there is no prejudice here, because of the deficiency above stated. They were notified of the shooting by telephone from Stout. These statements were held valid on the first appeal, and not controlled by Miranda v. Arizona, 384 U.S. 436, as urged by appellant at that time, Patton entered the plea without benefit of counsel. Green had first been convicted of second degree murder, and the court held that he could not be retried for first degree murder for the reason that the jury in the first trial impliedly acquitted him of the charge of first degree murder. Russell had pleaded guilty originally, but, under Gideon v. WainwrigM, supra, was awarded a new trial. We have no provision for a “pre-sentencing report” in this state. This report advises the court of events that have occurred subsequent to the first sentence, both good and bad, which the court may take into consideration in fixing the second sentence. The court majority was not convinced that the trial court relied solely on new information obtained subsequent to the first trial, and held that the increase in penalty was not justified. Emphasis supplied. Of course, unless a greater sentence is received on a second trial, double jeopardy is not involved simply because a criminal case is retried after reversal. In Johnson v. The State, 29 Ark. 31, Chief Justice English, speaking for the court, said: “It is very well settled that where a defendant is tried and convicted of a criminal offense, and a new trial is granted him on his own motion, he may be tried again for the same offense. “It is true that, by a constitutional provision as well as by the common law, no man can be twice put in jeopardy of life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford him the opportunity of another trial.”

Baker, J. Although the record on this appeal is somewhat extensive, and the briefs are voluminous in addition to an elaboration by oral argument, the issues are few and clearly presented. Three plaintiffs sued The Producers Gravel and Sand Company and the superintendent and manager of the company for damages arising out of injuries caused by a truck, upon which they were riding, turning off, or leaving the highway and running into a ditch-bank, whereby serious injuries were sustained by each plaintiff. All the suits were consolidated for trial below and on appeal. The material allegations in each complaint were essentially alike except in the descriptions of the injuries sustained. Jim McCuller,. who was the driver of the truck at the time of the accident, was named in the suits as a joint defendant with the others. Since the suits as to McCullers were dismissed and no issue is involved in such dismissal, all that part of the complaints in regard to McCuller will be disregarded. It was alleged in the complaints that The Producers Gravel and Sand Company, a Louisiana corporation, owned and operated a gravel and sand pit three miles north of Wilton in Little River county. Defendant Ross was alleged to have been in complete charge and control of the corporation and all its operations. It was further alleged in the complaint that on March 10, 1937, and prior thereto, plaintiffs were employed by the defendant corporation as workmen-at its gravel and sand pit near Wilton, on Little River; that in the early morning the defendant corporation furnished to the plaintiffs, and other workmen employed by it, an automobile truck to transport such workmen from Wilton, in Little River county, to the gravel and sand pit, and from the pit to Wilton at the end of each day’s work; that this automobile truck was also used to haul and transport equipment and material in and about the gravel -and sand pit. It was further pleaded that it was the duty of the defendants to use ordinary care to furnish a reasonably safe automobile truck to transport plaintiff from Wilton to the gravel and sand pit on Little River and return, and to exercise ordinary care to. keep the automobile truck in reasonably safe condition and repair. In addition to these matters facts are stated showing that while driving at a speed of not exceeding twenty-five miles an hour, on return from the gravel and sand pit to Wilton, the truck turned to the right, ran off the road into a ditch and into the hank on the far side of the ditch, causing the injuries complained of. • • The answer filed was a general denial and a plea of assumption of risk. From verdicts in favor of each of the plaintiffs and consequent judgments this appeal comes. Appellants present only two issues. The first is, they argue that the testimony is insufficient to show or establish negligence. The second is that the plaintiffs assumed the risks. Our discussion of these propositions will, no doubt, tend to show that the distinction between the two issues, as set forth, is- somewhat artificial. That is to say, neither one of the said issues, under the facts in this case, may be properly presented without a discussion to some extent, at least, of the other. Many of the most essential and material facts are undisputed, but even as to these undisputed matters, counsel for the appellants and for the appellees arrive at wholly different conclusions. Contradictory' announcements are found in regard to the same matters. We shall attempt in some measure, at least, to state what we think are the undisputed facts. The appellant for several years had been operating this gravel and sand pit on Little River, about three miles north of Wilton, having twenty or more employees who lived at Wilton and who went back and forth from their homes to the pit and from the pit to their homes. At least two of the plaintiffs testified that they had been so employed since 1930. In the early operation of this gravel and sand pit Mr. Ross operated an Essex car or automobile of which he was thé driver and he picked up the employees in the mornings, took them to their place of work and returned with them in the afternoons, after the day’s work was completed. Later a truck was supplied which was used to haul the employees back.and forth, from their homes to the place of employment, or from the pit to their homes, some one of the employees acting as the driver. Finally the particular truck upon which the three plaintiffs were riding, at the time of the accident, was bought as a second-hand truck and sup plied or furnished and was constantly used for a year or two prior to the date of the wreck. This truck was used not only by the men employed at the gravel pit for this transportation, but on the grounds in and about the gravel pit when necessary to haul or move any particular bits or parts of machinery or other supplies. The truck had grown old, was somewhat delapidated and was an object of humorous ridicule by the men who rode back and forth upon it, and one of the plaintiffs in this case seemed to have been habitually accustomed to making humorous, and somewhat caustic remarks about the truck, its condition and appearance. On different occasions when some part would wear out or give away the company would supply new parts and would direct some one of the employees to make'the necessary repairs. At least this seems to have happened two or three times when new universal joints were supplied and installed upon the truck. The company furnished necessary oil and gasoline for its operation. There is no evidence that Mr. Ross, the manager, or any other employee selected any particular one to drive the truck or control its operation. The evidence is ample, however, to show that the truck was generally driven by the employee of the defendant company who operated the hoisting machine at the gravel pit. We think the evidence also tends to show that the employees had some part in the selection of the driver as they complained and insisted among themselves that one driver who had perhaps driven faster than they thought was safe and he ceased in the rendition of that service to them, and at that timé Jim McCuller, who was then operating the hoisting machine, assumed the position of driver of the truck and continued operating the truck until the date of the wreck. It is not contended that anybody rode upon this truck back and forth except employees of the defendant company, or that anybody drove it except one of those who was likewise employed, in going back and forth, as were the others upon these morning and afternoon trips. One or two witnesses testified directly that Mr. Ross told them to ride the truck back and forth, and several witnesses testified that on occasions when the time might be changed at which the employees would go to work, Mr. Ross would personally see and notify different members of the crew so that they would be able to meet the truck and be picked up at the proper time to be carried to the place of employment. The appellants argue most seriously that there was no contract or agreement on their part to furnish or supply the truck; that they were under no legal duty or obligation, by reason of employment, to operate this truck, to carry or haul the employees back and forth, but that the furnishing of the truck was a mere license or a permission granted on the part of appellants to the employees to use the truck and that they accepted it in the condition in which they found it; that there was consequently no duty or obligation to maintain, inspect or repair the truck; that it was there so the men might use it as they did, when and how they chose, that no one controlled them in their use of the truck, directing them how to drive it, or otherwise, that its condition was apparent and that those who used it were charged with the knowledge of its condition and that consequently they assumed the risk. A short time before this accident occurred, perhaps a few weeks or months, one of the • employees had been sent by Mr. Ross to pick up and haul some boards with it and upon his return from the trip he had an accident, when it suddenly turned to the right and ran off the road, but without doing any particular damage or harm to him or the truck. He reported this accident to Mr. Ross, explained to him that' the truck would not turn to the left by reason of some defect and that this occasioned this accident; that he and Mr. Ross both manipulated the truck so as to get it back on the road and that the condition of the truck at that time was explained to Mr. Ross to the effect that something was wrong with the steering mechanism which caused it to hang or stick and prevented its proper operation, causing the accident to happen. Even though we should agree with appellants’ contention that they were under no legal obligation to furnish or supply a truck upon which the employees could ride back and forth, we do not think it necessarily follows that since the appellants did undertake to furnish said truck appellants owed no duty or obligation of inspection, repair or maintenance of the truck furnished. Nor do we think that because of the fact that neither the corporation nor Mr. Ross undertook to designate, select, or appoint anyone as the driver of the truck, while it was so used by the employees in going back and forth to their work, that fact makes any particular difference. While the appellees ’ alleged negligence on behalf of the driver when they filed their suit, that part of the suit was dismissed and plaintiffs did not rely upon any negligence or misconduct of the driver of the truck at the time the accident and injuries complained of. They did rely upon'the defective condition of the steering mechanism of the truck, which defect, under the undisputed evidence was known to Mr. Ross, who had sole managerial control of the plan and its operations. We do not mean that Mr. Ross thoroughly understood and comprehended every particular detail of this defective mechanism, but he knew that it had locked; that the truck had left the highway once before, because an employee could not turn the steering wheel. He knew whether it had been inspected and, if so, at what time and the results of such inspections, but there is no evidence that it had ever been inspected from and after the time it had been bought and furnished to the men and they began using it and the company began furnishing oil and gasoline for its use. The evidence offered in this case by some of the witnesses, that Mr. Ross had directed them to ride the truck, that he had notified them on different occasions at what time the truck would go out, or that they would begin work, so that the men would, know when to expect the truck, the fact that essential parts had been supplied for repairs necessary for its operation; that the company for years had furnished gasoline and oil, are evidentiary facts properly submitted to the jury to determine the implied contract or obligation on the part of the appellants to supply transportation. This question of implied contract or obligation to furnish transportation to the men so employed by the appellants was properly submitted to the jury and determined adversely to the con tention made by appellants. Certainly it may 'not be correctly said that fair-minded men might not differ as to tbe effect of these facts as determining the relation of employer and employee. The matter was, therefore, properly submitted to the jury. The duty or obligation arising out of the conduct of the parties is, no doubt, as binding as if there were an express agreement to the same effect. It is argued, however, in this case that the employees were paid from the time they reached the plant, by the hour, until the hour at which they were ready to leave the plant. That is their pay was measured only by the number of hours in which they were actually engaged in work and did not include the time consumed by the men in going to and from the plant. While that fact is undisputed, it, in itself, does not determine that the operation of the truck was as much, if not more for the benefit of the employer than for the employees. Certainly the employer was interested in having the men go to work on time and to continue until the regulation quitting hour. There was no statute or rule, so far as we are advised, fixing or determining these matters. So it was a matter of contract, or obligation between the parties, fixed and determined by long continued custom and acquiescence, if not agreement. These statements are made with reference more particularly to what is shown by the conduct of the parties than by the facts arising out of testimony showing, at least, some form of agreement or obligation, and the ap-pellees are entitled to insist upon the most favorable statement of the issues in their favor to sustain the judgments rendered. We think it was not improperly urged that under the conditions permitting the employees to ride home from work and to ride from their homes back and to the place of employment, that the master owed, a duty or obligation to exercise ordinary care to furnish reasonably safe transportation. This case is not one of first impression. It was held in the case of St. Louis-San Francisco Ry. Co. v. Barron, 166 Ark. 641, 267 S. W. 582, that under a custom- permitting the employees to ride home from work, an employee riding home on the employer’s engine was entitled to he treated as an employee rather than a hare licensee or trespasser. It was- insisted in that case, as in the one at bar, that Barron was at most a bare licensee ; that there was no duty or obligation owing to him by the railroad company and for that reason the evidence was not legally sufficient to sustain a verdict. We think it might be said the identical questions were presented as a defense in that case, as have been urged upon this appeal, and the Supreme Court rejected that defense únder the facts there stated. In that case the court said, among other things: “ ... and we are therefore at liberty to look to the general principles of the law as announced by our own court in determining what the character of that relationship was. According to our decisions, appellee was, under the facts shown, neither a bare licensee nor a trespasser, but was an employee within the line of his duty in being transported from his place of work to his home.” The court there cited as applicable authority the following cases: Arkadelphia Lbr. Co. v. Smith, 78 Ark. 505, 95 S. W. 800; St. L. I. M. & So. Ry. Co. v. Harmon, 85 Ark. 503, 109 S. W. 295; St. L. I. M. & So. Ry. Co. v. Wiggam, 98 Ark. 259, 135 S. W. 889; Chicago, R. I. & Pac. Ry. Co. v. Smith, 115 Ark. 473, 172 S. W. 829; Boyle-Farrell Land Co. v. Haynes, 161 Ark. 183, 256 S. W. 43. The court, in further discussing this very question, makes this statement in regard to the facts and the effect thereof: “According to the evidence adduced, it was, at the time of appellee’s injury and for a long time prior thereto, the general custom for employees to ride on the engines from their places of work to their homes. This was done by the direction of the superior ag’ents of the company in charge at Muskogee. This custom became, impliedly, an element of the contract between the company and its servants at that place, and appellee was entitled to the privilege as a part of his contract.” The court also announced as an applicable rule the following: “Appellee at that time, pursuant to that custom, had the right, under his contract, to ride, and was entitled to the same protection as that afforded to a passenger. ’ ’ This proposition, that is, the relation of the employer and employee and the duty and obligation of the employer to the employees, was a matter properly submitted to the jury and was determined by the jury adversely to the contention of the appellants, to the effect that there was, at least, the implied duty and obligation to exercise ordinary care to provide reasonably safe transportation. The late Mr. Justice Battle announced with the approval of this court .the following: “While appellee was going home after his day’s labor was done, he was-still in the service of appellant. He was traveling in a hand car furnished by appellant, according to .their implied contract; and the duties of the one to the other for the day, as master and servant, were not fully discharged. (Citing authorities) . . .” Arkadelphia Lumber Co. v. Smith, supra. It was contended in that case, by the attorneys representing the appellant, that the hand car furnished the employees was furnished at their request and for their convenience before the employment had begun and after it had ended. That contention was decided by Mr. Justice Battle contrary to the contention made, and in support of the propositions appellees present here. This court made the same distinction that appellees insist upon under almost identical facts in the case of Boyle-Farrell Land Co. v. Haynes, supra. So we think it beyond dispute that since it has been determined and conclusively settled under the facts in this case that there was the implied obligation, at least, to transport these men to their places of employment, and home again after the day’s work had ended, it was also a part of the employment, and there was a duty to exercise ordinary care to furnish safe transportation. This seems to be not only in accordance with our own decisions, but supported by the great weight of authority. 39 C. J. 272. The notes and citations set ont supporting the last citation are from different jurisdictions, including the Supreme Court of the United States, and proclaim this humane doctrine. Appellants urge finally and most strongly that the appellees assumed the risks arising out of transportation upon this truck. While the argument made is forceful, it is unique in one respect and that is that the truck was old, so battered, so delapidated, so apparently unfit for use in the manner in which it was used that this court should hold, as a matter of law, that the appellees assumed the risks of riding thereon. In making this argument the appellants make the following statement: . “In the case at bar, appellees ánd other employees, ■with almost continuous regularity rode this old and notoriously dilapidated truck twice a day, covering a period of several years, and as a matter of law, they are charged' with notice and knowledge of its condition 'by and through constant and almost daily observation and contact with it. The proof is undisputed that the truck was only used occasionally about the plant and transportation of material, and that no report was ever made to appellants of any defects in the truck or request made for any repairs or other or better means of conveyance, and the proof is not only undisputed, but is also conclusive that the appel-lees and other employees riding the truck had a far better opportunity to observe and had a superior knowledge of the condition of the truck than did the appellants.” Appellants cite many authorities to support their contention that the appellees assumed the risks. We have examined each of these authorities and must confess that while they have furnished interesting reading, we fail to see that they are applicable to the facts which are not substantially in dispute in this case. We have just quoted above what the appellants say about the truck, and most of the facts that they point out are matters of course, observable to any one who might have seen the truck, and the strongest conclusion that might be drawn from this statement is that because the truck was old and battered it should have been deemed unsafe. It is true that if this accident had arisen out of, or ,by reason of any of these several matters mentioned as being so apparent and patent as to be readily observed by anyone, the argument would be considered in the light of the authorities presented, but the facts in this case are quite different. We have already stated facts showing that the steering mechanism of this car was unsafe, that Mr. .Eoss knew of this fact. Witnesses who examined the truck immediately after the accident say that one end of the drag-link was disconnected. This draglink has been described as a part of the mechanism that connects the lower end of the steering shaft to the front wheels, so as to enable the driver to guide the machine. When the accident occurred one end of this draglink, as stated above, was loose. Some witnesses testify that it came off the truck and was found the next morning on the highway about thirty feet north of the point at which the car left the highway. It is undisputed, however, that this draglink was an essential part of the steering mechanism and without it being properly connected, the driver had no control over the truck or means of guiding it. It is undisputed that this steering mechanism was seriously defective. This fact was not only specially pleaded but positively established by the evidence. This draglink is down under the car, hidden and concealed from any casual or ordinary observation. Its defective condition could have been determined by any proper inspection and none was made in this case. Neither one. of the three men injured had ever owned a car or truck, nor had ever driven one. Neither one knew what the draglink was or its importance in the operation of a car. The risk arising, therefore, out of the defective draglink was not an ordinary one, but so far as the evidence in this case discloses there was a concealed, rather than a patent defect, one easily discoverable, according to the evidence, by any ordinary inspection, one that Mr. Ross knew about, and, of course, under the facts and circumstances, his knowledge was information possessed by his company. No duty rested upon the servant to inspect appliances furnished by the master. The relative duties and obligations of master and servant are not unfamiliar to people generally. Those who may desire further discussion of these matters are cited to such well know authorities as L. R. M. R. & T. Ry. Co. v. Leverett, Admr., 48 Ark. 333, 3 S. W. 50, 3 Am. St. Rep. 230; Chicago, R. I. & Pac. Ry. Co. v. Smith, 107 Ark. 512, 156 S. W. 166. These citations are typical examples of numerous authorities with which our reports are replete. The evidence tends to establish the positive negligence of the master and a lack of knowledge of that negligence on the part of the employees who were injured. The court, under such circumstances, could not properly declare as a matter of law that the servants had assumed these risks incident to their employment. The matter of assumption of risks was submitted to the jury under correct instructions and determined in favor of appellees. Appellants argue error in instructions given, but as we have just stated the principal alleged error was that ■the court should have directed a verdict for appellants and not given any other instructions. We have shown that appellants’ contentions are not supported by the weight of authority, but are contrary or opposed to long established rules which- must govern and control 'in situations of this kind. We have examined instructions givén, those modified and given as modified, and those refused by the trial court, and we find no substantial error. There is no contention that the judgments are disproportionate to the injuries and damages sustained. The judgments are, therefore, affirmed.

David Newbern, Judge. The appellant sought a nonsuit to her divorce action. The chancellor refused to grant the nonsuit because he regarded the divorce decree as having been rendered from the bench at the divorce hearing, although he recognized that the appellant’s request in her divorce complaint that the court adjudicate property rights had been taken under submission as of the date of the divorce hearing. In his memorandum opinion denying the nonsuit, the chancellor held the divorce had been granted but that he could take no action with respect to the property rights of the parties because the husband-defendant had died after the property aspects of the case were submitted but before they were finally decided. On the day of the divorce hearing, the chancellor wrote the following docket notation: 6-5-78 On oral of parties — Burl Simmons, et al. — Submitted. On December 22, 1978, the chancellor entered a formal decree nunc pro tunc July 5, 1978, the date of the hearing. The decree, in addition to describing the previous rendition of the divorce, said the following with respect to the parties’ property: 4. That all items of personal property held in the entireties will be governed by the statutes pertaining thereto and that all property held in the name of the Defendant only will abate as the date of his death, and the Court will make no further actions regarding such property. The appellant asks us to decide either that she is entitled to her nonsuit or that this action abated upon the death of a party. We hold the latter. The parties appeared at the divorce hearing on July 5, 1978. The appellant put on her testimony and corroboration. The appellee and his counsel were present, not to contest the taking of the divorce, but to protect his interest in an equitable property distribution. The chancellor’s memorandum decision denying the appellant’s nonsuit motion recites he had been forewarned one of the parties had a serious heart condition which was affected by emotional stress, and in view of the “unusual bitterness’’ between the parties, he wanted to prevent emotional outbursts in the courtroom. The memorandum says that after the plaintiff had presented the evidence on the issue whether the marriage should be dissolved: The court then heard all of the evidence concerning property rights. When both parties had rested and at the suggestion of counsel the Chancellor in open court declared that the plaintiff s prayer for divorce was granted and the marriage of the parties dissolved, reserving for further consideration all other issues. Upon departure of the parties, the court having already reached a determination on each and every issue, outlined to counsel what was thought and intended to be a full determination of all issues, permitting counsel, as I usually do, to vary the terms if they could by agreement make a happier solution in the final and formal decree. We agree that when a chancellor has rendered a decree in open court the decree is effective as of that time even if not entered of record. That is the express holding in Parker v. Parker, 227 Ark. 898, 302 S.W. 2d 533 (1957). But the Parser case did not involve a docket notation of any kind, whereas in this case we find a docket notation inconsistent with the later finding by the chancellor that a decree had been rendered. In the case of McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44 (1927), the court reviewed authorities from several jurisdictions and reached the following holding: There are authorities to the contrary but we hold that when a decision has been reached, announced by the court, and sufficient memorandum [is placed] on the chancery docket to show a final settlement of the case, it is a final judgment, although it has not been spread in full on the record. [Emphasis added. 175 Ark. at 263] Although in that case there had been .a docket entry of the judgment the supreme court found extant, and thus the lack of one or an inconsistent ¿ntry was not the question, we are persuaded by the language quoted because it was the court’s synthesis of the cases cited at the end of a long discussion of the nature of a final judgment. Not only are we guided by the language and holding of the McConnell case, supra, but we are persuaded by dictum in Stickland v. Strickland, 80 Ark. 451, 97 S.W. 659 (1906). There, the supreme court was presented with a case in which the. trial court had rendered a divorce decree, and one party had appealed. The supreme court had taken the case under submission, but the appellee died before the appeal was decided. In the course of deciding it had the power to render its appellate decision despite the death of a party, the supreme court said: Of course, death terminates a divorce suit; but where property rights depend on the correctness of a divorce decree, and an appeal has been taken from it, it is the duty of the appellate court to review the decree in order to settle the property rights. [Citations] The rule is otherwise where the cause has been submitted to the trial court, and one party dies before decree. No decree can be entered after death of a party to such a suit. [80 Ark. at 452] Were we to uphold the chancellor’s nunc pro tunc order as the appellee asks us to here, we would be leaving the parties divorced but with no accompanying property adjudication despite the fact that the appellant had sought it in her complaint. Following the quoted statement from the Strickland case, we cannot now order the chancellor to enter a supplemental decree declaring the property rights of the parties. Thus, the appellant would have had part of her lawsuit decided and part left undecided. The problem is that without any. decision on the property part of the suit, the parties’ rights are affected in a manner not intended by them or by the court. There is nothing in the record to indicate the appellant consented to a piecemeal resolution of the case. For the court to say now the divorce was rendered and the property held by the entireties will be governed by a statute covering the property rights of divorced persons [Ark. Stat. Ann. § 34-1215 (Supp. 1979)]effectively denies the appellant an adjudication of her property rights to which she would have been entitled under Ark. Stat. Ann. § 34-1214 (Repl. 1962), which was in effect at the time her suit was brought. That would not be a fair resolution of the case, and as stated earlier, we believe it would not be correct, as the docket indicated no final action whatever. As the appellant points out, this problem will not occur in cases brought after July 1, 1979, because of Ark. R. Civ. P. 58 and 79 which make it clear that a judgment in a case such as this will not be effective until it has been at least entered on the court’s docket. We hold that although the appellant was not entitled to a nonsuit, this case had been taken under submission and not finally decided by the trial court when the death of a party caused the action to abate, thus the nunc pro tunc order is of no effect. Reversed and dismissed.

John I. Purtle, Justice. The Conway Housing Authority is the owner of a block of land in the city of Conway, which is classified as residential (R-3). It is bounded across the entire south, east and north sides by property classified as B-3, which is Highway Service District. It is bounded on the west by property zoned B-l, which is Central Business District. Therefore, this property, which formerly contained multifamily residential buildings, is an island within the business district. All of the houses have been razed and there are no structures whatsoever on the property. The appellee attempted to sell the property while still classified as residential but was unable to obtain any bids. The city of Conway did offer to take the property off its hands for the amount of indebtedness against it. The evidence indicates the city of Conway desired the property for use as a B-3 classification. Appellee’s application to rezone the property was denied by the planning committee and its action was affirmed by the city council. Appellee then filed complaint in the Faulkner Chancery Court and after a hearing the court rezoned the property as commercial (B-3). It is from this decree the appellant appeals. The three points argued for reversal are as follows: I. THE COURT ERRED IN HOLDING FOR APPELLEE SINCE APPELLEE FAILED TO SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT THE CITY’S ACTION WAS ARBITRARY AND UNREASONABLE. II. THE COURT ERRED BY SUBSTITUTING ITS OPINION FOR THAT OF THE LEGISLATIVE ENTITY IN THIS ZONING DECISION ABSENT A CLEAR SHOWING OF ARBITRARINESS BY THE CITY. III. THE COURT ERRED IN REZONING THE PROPERTY DIRECTLY BY DECREE RATHER THAN BY ORDERING THE CITY TO REZONE BY ORDINANCE. 1924 Ark. Acts, No. 6, is the basic authority for zoning regulations by cities in Arkansas. This act is codified as Ark. Stat. Ann. §§ 19-2804 - 2807. 1924 Ark. Acts, No. 6, § 3, gives the right to adjacent property owners to appeal to the chancery court to protect their property from depreciation by reason of setting up exceptions to the zoning ordinances. The act is silent as to the procedure to be used when property owners are otherwise aggrieved by the act. However, we have traditionally reviewed such matters when they have been handled in chancery court. Since there is generally no procedure to appeal the decisions of the cities, it is logical that either the chancery or circuit court would have jurisdiction to hear complaints on this subject. The zoning statute was first considered by this Court in the case of Herring v. Stannus, 169 Ark. 244, 275 S.W. 321 (1925). The Herring case involved the application of a property owner to erect a filling station at the southwest corner of Wright Avenue and Wolfe Street in the city of Little Rock, Arkansas. The neighbors adjacent to this property protested the granting of the permit by the city by filing an action in the chancery court. This type action was specifically authorized by the General Assembly and appears as Ark. Stat. Ann. § 19-2806. There we held the statute and the ordinances were constitutional and, further, that the city had not abused its discretion in granting the permit. In Herring we stated: As we have said, it is to be presumed that the council will exercise the power conferred on it in a fair, just and reasonable manner, and its action in the instant case indicates that the power to grant or to withhold permission to erect a forbidden structure in the restricted area was properly vested in the council. The ordinance is not prohibitory, but is regulatory. Conditions vary in different portions of an area as extensive as the restricted district established by the ordinance under review, and, if any discretion is to be exercised, that right must be vested in some one, and no more appropriate agency for that purpose could be constituted than the council of the city, where the duty and authority to pass upon the question was vested. The matter was considered again in McKinney v. City of Little Rock, 201 Ark. 618, 146 S.W. 2d 167 (1941), wherein we held the supreme court should not substitute its judgment for that of the city council and the trial court holding that the classification of appellant’s property for zoning purposes was reasonable, unless we could say from the evidence that the findings of the city council and the decision of the trial court are unreasonable and arbitrary. A somewhat similar situation was considered in City of Fordyce v. Dunn, 215 Ark. 276, 220 S.W. 2d 430 (1949). The city council of Fordyce denied Dunn the right to operate a service station in a residential neighborhood. The chancery court reversed although it found that the city council acted honestly and in good faith but had exceeded its authority. The chancellor then enjoined the city from interfering with the right of the property owner to erect a service station in the residential area. There we reversed and stated: So here, the question being one involving discretion, and the Council having acted on a record showing sharp differences of opinion, and the Chancellor having found that it acted in the utmost good faith and that the unanimous vote of all who participated was in response to the better judgment of each, the act must stand unless the Council, in changed circumstances, should again consider the matter. In a case involving a factual situation very similar to the present case we held that the findings of the municipal authorities in reclassifying would not be overruled by the courts unless such action by the municipality was unreasonable and arbitrary. Evans v. City of Little Rock, 221 Ark. 252, 253 S.W. 2d 347 (1952). Again, we held that the zoning action of the city must not be arbitrary or capricious or wholly inequitable. City of West Helena v. Brockman, 221 Ark. 677, 256 S.W. 2d 40 (1953). Residential property which is adjacent to business zoned property is not automatically entitled to rezoning as business property. This is so even though the highest and best use of the property might be other than residential. To allow such rule would be to violate the zoning act itself. If we were to allow any property abutting business property to be rezoned as business property, there would be no need of a zoning ordinance in the first place. We have stated too many times to mention that the court should sustain the city’s action in zoning matters unless it is found that the municipality was arbitrary in setting up the ordinance. Baldridge v. City of North Little Rock, 258 Ark. 246, 523 S.W. 2d 912 (1975). The General Assembly saw fit to give cities the right to exercise zoning authority when it enacted 1924 Ark. Acts, No. 6. This granted the cities the right to legislate upon zoning matters. This right, is, of course, not unlimited. Therefore, when a municipality, pursuant to authority granted by the General Assembly, takes action in zoning classifications, it is exercising a legislative function and is not subject to review by the courts of its wisdom in so doing. Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904); Little Rock Railway & Electric Company v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). Neither do the courts have power to review such legislative action by the cities in a de novo manner. In fact, when the General Assembly attempted to grant the courts power to review such actions de novo, we held such action unconstitutional. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971). Therefore, it follows that the power of the court to review the action of the municipalities is limited to determining whether or not such action was arbitrary, capricious, or wholly inequitable. The judiciary has no right or authority to substitute its judgment for that of the legislative branch of government. In zoning matters the General Assembly has delegated legislative power to the cities in matters relating to zoning property. The role of the courts is, therefore, simply to determine whether or not the action of the municipality is arbitrary. Arbitrary has been defined as “arising from unrestrained exercise of will, caprice, or personal preference; based on random or convenient choice, rather than on reason or nature.” Courts are not super zoning commissions and have no authority to classify property according to zones. In the present case the chancellor heard the evidence and inspected the property. He determined that the action of the city in this case was arbitrary. We agree with the chancellor in so holding. It is obvious the city of Conway wants to obtain title to this particular property and thereafter reclassify it either as B-l or B-3. The property on all four sides is presently so rezoned. Although there is a possibility the use made of the property will create some additional traffic problem, such possibility does not outweigh the other factors which clearly demonstrate the action of the city in refusing to rezone the property as being arbitrary. We agree with the learned chancellor that the city of Conway was arbitrary in refusing to rezone this property to classify it as B-3. Therefore, the case is remanded with directions to direct the city of Conway to rezone the property with all deliberate speed. Affirmed as modified.

John A. Fogleman, Justice. This litigation arose from dealings in securities in the form of interest-bearing obligations issued by federal agencies in the form of bonds or notes guaranteed by the United States. Carroll McEntee & McGinley, Inc., to which we will refer as McEntee, a corporation with its principal office in New York, is engaged in the purchase and sale of those securities. Swink & Company, Inc., an Arkansas corporation, to which we will refer as Swink, is licensed as a broker-dealer to engage in the sale of municipal and United States government agency issues. McEntee brought this suit against Swink, alleging breach of contract by Swink in three different transactions. When the case was tried to a jury, a verdict was rendered in favor of Swink on two of the transactions and in favor of McEntee on the other. McEntee did not appeal from the judgment against it, but Swink took this appeal from the judgment against it for $33,391.52. McEntee alleged that Swink sold $2,500,000 in bonds ©f the Bank for Cooperatives to it by means of a telephone conversation on October 1, 1975, but failed to deliver the bonds on October 2, 1975, in accordance with the agreement. McEntee asserted that it had sent a written confirmation slip to Swink following the telephone conversation, as customary in the trade. Swink contends that the sale never occurred and that, if it did, McEntee is barred from enforcing it by the statute of frauds applicable in cases of purchase and sale of investment securities. Swink denied that the oral conversation ever took place and further denied that any confirmation of such a transaction was received. Swink first contends that a verdict should have been directed in its favor, asserting that McEntee failed to produce evidence sufficient to establish an enforceable contract under the applicable statute of frauds. Transactions of this sort are usually initiated over the telephone, but the oral agreements made are reduced to writing. The normal practice is for both the purchaser and the seller to produce a confirmation and transmit it to the other. The applicable statute, Ark. Stat. Ann. § 85-8-319 (Addendum 1961), insofar as relied upon by the parties, reads: STATUTE OF FRAUDS. A contract for the sale of securities is not enforceable by way of action or defense unless (a) there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or * * * * (c) within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within ten [10] days after its receipt; or (d) the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price. Swink contends that McEntee failed to show compliance with either (a) or (c). On the other hand, McEntee contends that the evidence shows that the transaction is not barred by this statute of frauds because there was compliance with subsections (a) and (d). McEntee also contends that appellant is es-topped from relying on the statute of frauds on the basis of equitable estoppel. Robert Polk was employed by Swink as its trader in government securities. Herman Jordan was a salesman and branch manager in the Dallas office of McEntee. James Rúñalo was vice-president and treasurer of McEntee, who supervised the accounting operations of the company at its principal office in New York. Thomas Christman was president of McEntee. Ralph Shay was systems manager of Landart Systems, a wholly owned subsidiary of McEntee, which did data processing for McEntee and others in the Wall Street community. His sole responsibility was for the processing of the business of McEntee. Lauren Boykin was head trader at Swink. He bought and sold municipal and government bonds for the firm and supervised others who did so. Katie Woods (formerly Downs) was manager of the operations section of Swink. Jim Swink was chairman and chief executive officer. In considering the question of sufficiency of the evidence, it must be viewed in the light most favorable to appellee and all reasonable inferences musí be drawn in its favor. State Farm Mutual Automobile Ins. Co. v. Traylor, 263 Ark. 92, 562 S.W. 2d 595. Only the evidence favorable to appellee is to be considered. Milburn v. State, 262 Ark. 267, 555 S.W. 2d 946; Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. Treated in that manner, the evidence was: Herman Jordan testified: In transactions of the type involved, a firm like McEntee would be called by a firm like Swink by telephone for a bid or offer on a particular security. A salesman in McEntee’s office would call its New York office where its traders would state a bid or offer which would be relayed to the inquirer. If a sale to McEntee was proposed, the customer would indicate his acceptance or rejection. If the offer is accepted, the McEntee salesman would then notify the trader in the New York office. In the trade it is considered that there is an oral contract at that time. The market is so volatile, that prices change from minute to minute, so all dealings are conducted by telephone and all contracts are oral. At the time of the acceptance of the offer, the salesman and the representative of the buying firm agree on a settlement date, i.e., the date the securities will be paid for and delivered. Customarily, that is the day following the acceptance. Each dealer has a clearing bank through which the securities are delivered. Worthen Bank in Little Rock was Swink’s clearing bank. Worthen uses the Federal Reserve Bank’s wire system to notify purchasers of bond deliveries. Prior to the transaction involved here, Jordan had handled 35 to 40 such transactions with Polk, all of which had cleared satisfactorily. Jordan did not recall having dealt with anyone else at Swink. On the afternoon of October 1, 1975, Polk called Jordan and asked for a bid on $2,500,000 in bonds of the Bank for Cooperatives. Jordan obtained a bid from a trader in McEntee’s New York office and relayed it to Polk, who accepted and agreed upon a settlement date of October 2, 1975. The bonds were not delivered in New York as agreed, so the New York office of McEntee asked Jordan to check on the transaction. Jordan called Polk, who did not know whether there was a problem, but promised to check. Polk later advised Jordan that Swink was being failed by Swink’s customer. The New York office advised Jordan daily that the bonds had not been delivered, and Jordan continued to call Polk, who continued to say that Swink was being failed. Eventually Polk promised Jordan that he would talk with Swink’s customer to see if partial delivery could be made, and the trade cleared up. Polk did advise Jordan that he was trying to get a partial delivery, but it never took place. Polk later advised Jordan that he had entered into an agreement with Ruffalo to settle the matter by a pair-off. Jordan received from McEntee through the mail a written confirmation of the original transaction with Polk on these bonds. McEntee sends written confirmation of all purchases and sales of bonds from the New York office. In the normal course of business, Swink sent written confirmation to McEntee. Jordan had received some from Swink, but did not in every transaction. Polk never denied that the original trade was made as Jordan stated it, in any conversation with Jordan. McEntee’s Dallas office never received a confirmation of this transaction from Swink. Jordan had no further involvement in a trade he made unless there was a fail. All of the mechanics of the trade, after the oral contract, are handled in McEntee’s New York office. James Ruffalo testified: an exhibit he identified was a written documentation of the original offer in this trade by Swink, and the purchase by McEntee. This record is the starting point for the computer processing of a trade in McEntee’s New York computer. It shows the date, price, settlement date, seller, purchaser and other details of a trade and bears an identifying trade number (this documentation recorded the trade exactly as Jordan had stated it.) In the normal course of business, this document or trade ticket is written by McEntee’s trader ira the Mew York office as soon as the trade is made. One copy of this trade ticket is sent to Landart Systems for computer processing. McEntee’s New York office received a copy of a written confirmation of the transaction from Landart. It included a computation of the amount due Swink on the trade. In the normal course of business, Landart would have sent the copy of the written confirmation to McEntee’s New York office on October 1, the day of the transaction. McEntee stood wiling, at all times, to pay Swink the amount due on the tirade upon delivery of the bonds. Landart furnishes McEntee with a history report, which records all of McEntee’s transactions during the preceding month. This report included the trade in question, giving all the pertinent details. Ruffalo became involved Ira the matter ora October 10. After talking with Jordan, he called Polk, who said he knew the transaction and assured Ruffalo that there was no problem with it. ¿hiring the next week, Ruffalo talked with Polk daily. Ira the early part of the week, Ruffalo suggested to Polk that partial deliveries be made. On Friday of that week, October 17, no delivery had been made. The following Monday, Ruffalo talked with McEntee’s head trader, wSio was also chairman of its board of directors, arad a decision was reached that a pair-off should be negotiated with Swink. Ruffalo made that proposal to Polk, who agreed to it. Ruffalo agreed with Polk to sell the bonds bade at a price that was actually lower than the price at which the bonds were being traded. Payment is made Ira such cases by the purchaser (¡Swink), advising its bank to remit the difference ira the sale prices ira the transactions paired off, to the account of the seller (McEntee). A trade ticket was made out fey Ruffalo ora this transaction. On the designated settlement date, October 22, the remittance had not been received at McEratce’s clearing bank. On October 23, Ruffalo called Swink arad talked to Katie Woods, who assured him that she knew nothing about the transaction. McEntee had never received any written confirmation of the transaction from Swink. Later that day, Ruffalo arranged to tape record a telephone conversation with Polk, in order to have a record that the transaction was known. He had never done this before and McEntee has no special equipment for recording telephone conversations. He used a tape recorder belonging to McEntee’s sales manager. The telephone conversation was conducted in the chairman’s office on a device used for conference calls. It was a “squawkbox,” i.e., a device in which a telephone is placed on a speaker, so that several persons may participate in the conversation with a person on the other end. Ruffa-lo then called Polk, and recognized the voice of the person who was called to the telephone at Swink’s office as Polk’s. During the course of the recorded conversation, Polk assured Ruffalo that all three of the persons at Swink who could complete the transaction by approving the wire transfer of money were aware of that transaction. When Ruffalo advised Polk of the conversation with Woods Polk said that she had nothing to do with it and when Rúñalo said that Swink didn’t send a confirmation, Polk assured Mm nothing was awry. Polk assured Ruffalo that he knew both the trade on October 1, and the other trade, and guaranteed Ruffalo that everybody was aware of them. Polk promised to call Ruffalo back. 'Ruffalo asked Polk to tell one of the three principals at Swink to authorize the transfer that afternoon. McEntee never had a written confirmation from Swink. Ruffalo obtained Boykin’s name from Worthen Bank and assumed he was a principal of Swink because he had authority t@ wire funds on behalf of Swink. Ruf-falo called Boykin on October 23, after the telephone conversation had been recorded, but did not reach him until the following day. Boykin said that no transaction had occurred and Ruffalo got McEntee’s president into the conversation. Thomas Christmas testified: When Christman learned of the sequence of evesits, he asked Ruffalo to use extreme precaution because Swink had not sent a confirmation. At RufFal©’s request, he talked to Boykin and Boykin denied knowledge of the transactions. Christman spoke to Boykin about the seriousness of the situation and suggested that Boykin think about the matter and call him back la two hours. In one hour Swink called Christman and said that there must be some confusion about the matter. Christman related the sequence of events, as he knew them, to Swink. Christ-man said the amount of the pair-off was $45,000. Swink indicated that it was 135,000, according to confirmations he had. Christman told Swink that he understood that Swink did not have confirmations and Swink replied that he was talking about the difference confirmation. Christman said that McEntee had sent no difference confirmation. Both confirmations would have been needed in order to come up with the figure of approximately $35,000. That was the approximate difference in the two transactions. Ralph Shay testified: “Month to date” reports are furnished to McEntee daily. They list all trades up to the date the reports are furnished. Landart has a runner who goes back and forth between McEntee and Landart picking up and delivering trade tickets. They are key punched continuously during the day. When a day’s trading is completed, the cards are fed into a computer. The resulting “month to date” report is furnished to McEntee the next morning. Confirmation tickets are also produced by the computer on a continuous form. The printout on each confirmation is a four-part form. The individual pieces of paper are separated into four piles. The last two are taken for delivery to McEntee on the following day. The forms are separated according to McEntee’s branch office numbers, so all copies that go to one branch can be mailed to that branch. The original confirmation form is taken by one of Landart’s operators and stuffed into a window envelope so that the address of the customer shows. The Landart operators run the envelopes through a machine which seals them and puts stamps on them. When the night’s work is finished, these envelopes are hand-carried by them to the post office and mailed to the branches and to the customers. The denial of receipt by Swink was based on Boykin’s testimony that he checked the records in the office of Swink and found no confirmation from McEntee and found no record that Swink had issued a confirmation, as is usually done in the regular course of Swink’s business. Polk said that he kept a legal pad on which he wrote purchases he made and a girl would take this record of a purchase to the back office, where a confirmation would be processed. He admitted that he never denied the trade in telephone conversations with representatives of McEntee and did not take the matter seriously until Ruffalo suggested a pair-off. Not until then did he check on the transaction, but he found no confirmation in the back office when he inquired of Katie Woods. Katie Woods testified that she did all the record keeping at Swink. She said that she was responsible for getting the mail and that she had picked up the mail the first five working days in October. She said that she personally opened every letter and reviewed each confirmation. She said that no confirmation of the purchase of these bonds was ever received from McEntee and that Swink had not issued any confirmation of their sale. She said that sometimes the men at Swink failed to make out a confirmation. Jim Swink testified that he also checked the records with Woods’ help and found no confirmation of this transaction. He admitted that his concern had received two confirmations from McEntee on smaller transactions, and stated that Swink had settled these two transactions by pair-offs. Appellee seeks to avoid the statute of frauds through the tape recording of the conversation between Ruffalo and Polk, contending that it constituted compliance with § 85-8-319 (a). Assuming, without deciding, that the tape recording is a writing, as an intentional reduction to tangible form, under Ark. Stat. Ann. § 85-1-201 (46) (Supp. 1977), there is still no compliance with Ark. Stat. Ann. § 85-8-319 (a), because the tape recording was not signed by Swink, the party against whom enforcement is sought, or by any authorized agent of Swink. Appellee also contends that the evidence showed compliance with § 85-8-319 (d). Again, it relies on the tape-recorded conversation with Polk, along with Polk’s conversations with Jordan and Ruffalo in which he admitted the transaction and excused performance only on the ground that Swink had been failed by a customer. The mere conversations were out-of-court statements, whether tape recorded or not. They simply cannot constitute an admission or testimony in court, so they are not evidence sufficient to avoid the statute of frauds. Appellee, however, contends that Polk’s in-court testimony that he made such statements takes the case out of the statute of frauds under § 85-8-319 (d). There is considerable question about the sufficiency of these statements as to the details of the transaction, i.e., the quantity of the securities and the defined or stated price. Assuming, however, that they meet this test, Polk was not a party against whom enforcement is sought. It is quite true that he was Swink }s agent and that he had considerable authority. Even assuming that he had authority to make admissions against the interest of Swink, however, the admissions must have been made in court in order to be effective under § 85-8-319 (a). Polk certainly did not have any authority to make such admissions at the time he testified. His employment by Swink was terminated in February, 1976. This suit was filed one year later. He certainly was not a “party” or an agent for a party when he testified. Western Union Telegraph Co. v. Scanlon, 115 Ark. 515, 171 S.W. 916. See also, Arkansas Anthracite Coal & Land Co. v. Dunlap, 142 Ark. 358, 218 S.W. 839; Campbell v. Hastings, Britton & Co., 29 Ark. 512. This brings us to a much more difficult problem. That is the question of the sufficiency of the evidence to show that written confirmation of the sale by Swink and the purchase by McEntee was received by Swink. Swink denies having received it, so the answer to the question turns upon the sufficiency of the evidence to show receipt. It is well settled that receipt may be shown by circumstantial evidence. The Travelers Insurance Co. v. Thompson, 193 Ark. 332, 99 S.W. 2d 254. There is a presumption of fact that, when a letter, properly and sufficiently addressed and stamped, is mailed, it and its contents were received by the addressee in due course of mail, which ceases to exist, and becomes a question of fact, when the addressee denies receipt. The W. T. Rawleigh Co. v. Moore, 196 Ark. 1148, 121 S.W. 2d 106; The Travelers Insurance Co. v. Thompson, supra; Dengler v. Dengler, 196 Ark. 913, 120 S.W. 2d 340; American Fidelity Fire Ins. Co. v. Winfield, 225 Ark. 139, 279 S.W. 2d 836; Old Republic Ins. Co. v. Martin, 229 Ark. 1065, 320 S.W. 2d 266; Click v. Sample, 73 Ark. 194, 83 S.W. 932. A mere denial that a properly mailed letter was not received is not sufficient, as a matter of law, to rebut the presumption; it simply leaves the question of receipt to the jury. Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388, 135 S.W. 913. The evidence is sufficient to show that the original confirmation was properly addressed. Copies of it were introduced, and all copies were the product of a single operation. The question is whether the testimony of custom and habit was sufficient to show that the address appeared on the envelope, whether it was properly stamped and whether it was placed in the mails. We have previously considered the question of the sufficiency of the evidence of mailing. In Southern Engine & Boiler Works v. Vaughan, supra, we said: o o 'The word “mailed,” when applied to a letter, means that it was properly prepared for transmission in the due course of mail, and that it was placed in the custody of the officer charged with the duty of forwarding the mail. When, therefore, the witness testified that this letter had been mailed to the plaintiff, it was sufficient evidence that it had been properly directed, stamped and delivered to the officials of the postal department for proper transmission through the mails; and from this the presumption arose that the plaintiff, to whom the same was addressed, received it. This presumption could be rebutted by testimony that it was not in fact received, but the positive denial by plaintiff that same was received would not be sufficient, as a matter of law, to nullify the presumption of its receipt. Such testimony simply left the question as to the receipt of the letter for the determination of the jury, under all the testimony adduced at the trial. * * * See also, Burlington Ins. Co. v. Threlkeld, 60 Ark. 539, 31 S.W. 265; Click v. Sample, supra. On the other hand, we held in Runyan v. Community Fund of Little Rock, 182 Ark. 441, 31 S.W. 2d 743, that testimony that statements were mailed was not sufficient to show receipt of them or give rise to a presumption in the absence of testimony to show that the envelopes containing them were properly addressed and deposited in the mail. It is true that the employee who actually mailed the confirmation did not testify, either that the confirmation was ac tually mailed, or as to his practice. Some years ago, the Court of Appeals for the Eight Circuit speculated, by way of dictum, that this court might share its view, and that of Professor McCormick, that the mailclerk’s testimony would be only cumulative, since, considering the modern volume of corporate correspondence, he could not be expected to remember posting a particular letter or emptying the mail tray on a particular day and probably could only reiterate the executive’s description of the office practice. See Leasing Associates, Inc. v. Slaughter & Son, Inc., 450 F. 2d 174 (8 Cir., 1971). Whatever the rule may have been heretofore, Ark. Stat. Ann. § 28-1001, Rule 406 (Supp. 1977) governs the admissibility of evidence on the subject. It provides: Rule 406. Habit — Routine practice. — (a) Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. (b) Method of Proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine. The testimony of Shay was admissible under that rule. The evidence clearly shows that the confirmation was printed. The routine practice was followed sufficiently that McEn-tee’s Dallas office received its copy. The routine included Tuning the envelopes containing the confirmations through a machine that insured that the proper postage was placed on the envelope. Swink received at least two confirmations mailed to it through this process. The reliability of Swink’s processing of confirmations on receipt must not have been foolproof, because there was a great deal of uncertainty on their part about the receipt of those two. We consider the evidence sufficient to have presented a jury question on delivery and receipt of the confirmation. There was no re quirement that the mailing of the confirmation be shown by the person who performed that part of the procedure. Tabor & Co. v. Gorenz, 43 Ill. App. 3d 124, 1 Ill. Dec. 868, 356 N.E. 2d 1150 (1976); Milros-Sans Souci, Inc. v. Dade County, 296 So. 2d 545 (Fla. App., 1974). See also, Leasing Associates, Inc. v. Slaughter & Son, Inc., supra. In both the Illinois case and the Florida case, evidence similar to that here was held sufficient to show mailing and receipt. Appellant contends that the trial court erred in giving instructions to the jury. We agree that there were errors in the instructions which require reversal. The court gave McEntee’s requested instruction No. 1. It was a binding instruction, directing the jury to find for McEntee, if it found that there was a contract between the parties, if Swink, acting through its agent, breached the contract and if the breach resulted in damages to McEntee. Swink’s attorney objected that the instruction in that form was defective because the issue as to the statute of frauds was omitted. In order to be entitled to recover, McEntee had the burden of proving that the contract between McEntee and Swink fell within one of the provisions of that statute. A binding instruction which ignores a material issue which is an element of the defense to the action is erroneous, prejudicial and incurable: Davis v. Self, 220 Ark. 129, 246 S.W. 2d 426; Miller v. Ballentine, 242 Ark. 34, 411 S.W. 2d 655. Appellee contends that the court’s denial of appellant’s motion for a directed verdict was, in effect, a holding that, as a matter of law, the statute of frauds was not an issue. This argument is totally meritless. The statute of frauds was the principal issue, and the denial of the directed verdict was simply a holding that there was substantial evidence that would, if accepted by the jury, take the contract out of the statute of frauds. Of course, appellee’s argument that appellant could not object because it offered no evidence that Arkansas has a statute of frauds is equally meritless. Appellee also argues that appellant cannot complain because it did not offer a correct instruction. This was not really necessary, because appellant made a proper objection to the binding instruction. In referring to the instruction offered by appellant, appellee points out that it was erroneous because it would have confused the jury on the issue of existence of a contract because it referred to requirements of law concerning the existence of a contract. It is doubtful that a jury would be misled by the language in appellant’s instruction. Appellee is correct in its contention that one of the issues was enforceability of the contract, and not its existence. The language of the statute is couched in terms that make this clear. See also, Betnar v. Rose, 259 Ark. 820, 536 S.W. 2d 719. The very fact that the evidence clearly shows that, in the business of buying and selling securities, a transaction entered into by telephone is considered as an oral contract, demonstrates the significance of the omission of the issue on the statute of frauds from the binding instruction given. The giving of a later instruction, even if it had been correct, did not cure the omission. Whaley v. Crutchfield, 226 Ark. 921, 294 S.W. 2d 775. The instruction upon which appellee relies to cure any error in the binding instruction was itself erroneous. By that instruction, the jury was told that, if it found from a preponderance of the evidence that McEntee caused the mailing of a confirmation slip within an envelope on which there was placed the proper postage, addressed to Swink at its proper address, the law presumes that it was delivered to Swink in due course and the burden was on Swink to show that it was not received. This is not a correct statement of the law, because it gives the presumption of delivery the same effect, regardless of a denial of delivery by Swink. Once the delivery is denied, and it was in this case, the presumption is no longer effective as such and the question of delivery is one of fact, on which the burden remains on the party seeking to establish delivery by circumstantial evidence. There was also error in the giving of McEntee’s requested instruction No. 2. By it, the jury was told that, in the three transactions involved in the case, McEntee had the burden of proving that Polk was acting within the scope of his authority as agent of Swink, and that if it so found, any agreement made by Polk within the scope of his authority would be binding. The question of Polk’s authority to sell and purchase the securities involved in the three alleged transactions was not in issue. If the instruction was intended, as appellee now argues, to be directed to the question whether Polk had the authority to enter into a pair-off, it should not have been directed to the “time of the three transactions involved.” Appellant also objects to the instruction (No. 7) given on the measure of damages. That instruction fixed the measure of damages as the difference between the contract price for the bonds and their fair market value when it became apparent that Swink was not going to deliver the bonds. Appellant says that the true measure is the difference in market value on the day of the trade and the promised date of delivery. Appellant relies on Brace v. Oil Fields Corp., 173 Ark. 1128, 293 S.W. 1041. The question in issue in that case, however, was different from the issue in this case. There, a geologist was employed upon a contract under which he would be given a bonus of $10,000 a year in stock of the corporation by which he was employed, in addition to his monthly salary and expenses. He contended that the measure of damages for the breach of the contract to pay a fixed sum in a particular commodity should prevail and that his measure of damages should be the sum stated. The receiver for the employer contended that the proper measure of damages was the value of the stock at the time of the breach. We held that the employee was entitled to recover the value of the stock at the time of the breach. This was not a transaction in securities such as we have involved here. The time of the breach was clearly fixed in Brace. In this case, the situation is somewhat different. Boykin testified that in trades such as are the subject of this litigation, deliveries are occasionally deferred for two or three days after the date agreed upon. The testimony on behalf of McEntee tends to show that there was no renunciation of the contract or refusal to perform until Ruffalo talked with Boykin. In the intervening period, Polk was giving assurances that there was no problem. If McEntee could have known that Swink did not intend to perform, it could have bought bonds in the market on the day of delivery to protect itself. There was no reason for doing so, if there was reason to expect a tardy delivery. Where there is a breach of a contract involving dealings in securities, the usual measure of damages for breach of a contract for delivery of personal property is not always appropriate. See James Wood General Trading Establishment v. Coe, 191 F.S. 330 (S.D.N.Y., 1961), reversed on other grounds, 297 F. 2d 651 (2 Cir., 1961); Mekrut v. Gould, 16 Mise. 2d 326, 188 N.Y.S. 2d 6 (1959). Under the peculiar facts of this case, we cannot say that this instruction was erroneous. We have not considered appellee’s argument on estoppel against appellant’s pleading the statute of frauds. Estoppel was not pleaded and it does not appear to have been mentioned during the trial until Swink had moved for a directed verdict. We point out, however, that the facts in this case are unlike those in White v. White, 254 Ark. 257, 493 S. W. 2d 133, relied on by appellee. In that case, the party who was es-topped had, with knowledge of the contract, agreed to its terms and actively participated in activities relating to performance of it. She had also written a letter to one of the contracting parties, referring to the agreement. The judgment is reversed and the cause remanded. Hickman, J., concurs in the result. George Rose Smith and Byrd, JJ., dissent as to instruction No. 7. Purtle, J., did not participate. A fail in the business of dealing in these securities in this context is a failure to make delivery according to contract. By a pair-off, the traders agree upon a resale of the securities by the purchaser in the original transaction to the seller in that transaction, at a current price agreed upon by them. As a result, the non-delivering seller in the original transaction would pay the purchaser in that transaction, only the difference in the price agreed upon in the first transaction and that agreed upon for the resale. No securities are delivered by either party. In the trade, this meant that he was aware of the transaction.

George Rose Smith, Justice. The plaintiff-appellee, Harrs'- Courson, -was injured when a truck owned by Lin Manufacturing Company and being driven by its employee ran a stop sign and struck Courson’s car. In appealing from a verdict and judgment for $55,000 Lin and its truekdriver question four rulings by the trial court and challenge the size of the verdict. I. It is argued that the defendants were prejudiced by Courson’s unnecessary references to the matter of liability insurance. On cross-examination counsel questioned Courson at some length about earlier incidents of injury and hospitalization. Courson was asked: “How many doctors have you consulted in the last few years concerning your various ailments?” In reply, Courson named eight doctors, including Hr. Reed. Dr. Reed was not actually one of Courson’s own doctors, having examined him at the defendants ’ request in connection with the lawsuit. On redirect examination Courson’s attorney sought to make that fact clear. The following excerpt from the record shows what happened : Q. Now you mentioned being examined by Dr. Reed. A. Yes. Q. At whose instance — why did you go see Dr. Reed? A. Well, because the insurance company or someone— MR. STREETMAN: We object to that and we ask the Court to declare a mistrial. There is no insurance company here as a defendant, and we ask the Court for a mistrial. the court; Overruled. We perceive no reversible error. Plaintiff’s counsel had a valid reason for wanting the jury to know that Dr. Reed was not Courson’s own physician, for otherwise the jurors might have drawn an adverse inference from the plaintiff’s failure to call Dr. Reed as a witness. Thus the question was put with apparent sincerity. When, as here, the reference to insurance occurs in good faith rather than in a deliberate attempt to prejudice the jury, an admonition by the court is ordinarilv sufficient to correct the error. Ragon v. Day, 228 Irk. 215, 306 S.W. 2d 687 (1957); Adams v. Summers, 222 Ark. 924, 263 S.W. 2d 711 (1954); Beatty v. Pilcher, 218 Ark. 152, 235 S.W. 2d 40 (1950). No doubt the court would have admonished the jury in this instance, but the defendants did not request that corrective measure. Instead, they asked only for a mistrial, to which they were not entitled. II. Counsel for the plaintiff, in developing the proof of damages, called witnesses to show that two large companies in the vicinity had a policy against employing anyone with a history of back trouble (with which Courson was afflicted as a result of the collision). When it was brought out that the first company’s policy was a written policy, defense counsel objected to the witness ’ testimony on the ground that the writing, which the witness did not have with him, would be the best evidence. It is now insisted that the objection should have been sustained. The court was right. The best evidence rule comes into play when the contents of a writing or its exact wording is an issue in the case. When, as in the case at bar, the existence of the writing is merely a collateral matter, the rule does not apply. St. Louis & S.F. R.R. v. Kilpatrick, 67 Ark. 47, 54 S.W. 971 (1899). Moreover, as McKelvey points out: “There is a distinction between proving a fact which has been put in writing and proving the writing itself. Because a fact has been described in writing does not exclude other proof of the fact.” McKelvey, Evidence, § 345 (1944). Here the company’s policy, which might have been an oral directive, was the fact to be proved. That the policy had been reduced to writing certainly did not exclude other proof of the basic fact. III. Near the beginning of his closing argument Courson’s attorney said to the jury: “I think I would like to caution you and possibly use at this time — one of the purposes of a jury — the golden rule of do unto others as you would have them do unto you.” Defense counsel at once objected and asked for a mistrial. The court refused to declare a mistrial but did instruct the jury to disregard the statement of counsel. (We do not agree with the appellants’ insistence that the record shows that the “golden rule” argument was renewed even after the courts ruling.) We find no error. It is true, as pointed out in Russell v. Chicago, R.I. & P. R.R., 249 Iowa 664, 86 N.W. 2d 843 (1957), and in the annotation to that case in 70 A.L.R. 2d 927, that it is improper for a plaintiff’s attorney to urge the jury to apply the golden rule by putting itself in the plaintiff’s position and awarding whatever amount the jurors would like to receive themselves for a similar injury. Here, however, counsel never reached the point of actual prejudice, because his argument was interrupted at the first reference to the golden rule, without its implications having been developed in an improper way. In the circumstances the court’s prompt admonition to the jury was sufficient, the error not being so serious as to call for a mistrial. IY. After the verdict was received, the defendants ’ lawyer went into the jury room and found a piece of paper on which 12 numbers totaling $649,400 had been added up and divided by 12, giving a quotient of $54,-110. It is now insisted that the verdict for $55,000 was demonstrably a quotient verdict that should be set aside under our ruling in Williams v. State, 66 Ark. 264, 50 S.W. 517 (1899). Counsel concede, however, that our more recent cases, such as Arkansas State Highway Commn. v. Vandiver, 240 Ark. 26, 397 S.W. 2d 802 (1966), uphold quotient verdicts as being distinguishable from verdicts obtained by lot. We are urged to overrule the Vandiver case and its predecessors to the same effect, but we decline to do so. In our judgment they correctly state the law. Y. We cannot say that the verdict is so excessive as to indicate passion or prejudice or to shock the conscience of this court. Courson suffered a severe back injury. He was in traction in hospitals for 18 or 19 days and later was in a hospital for another three days while undergoing a painful myelogram. Iiis past and future medical bills, ulus the damage to his car, exceed $3,000. The pain resulting from the injury has been extensive and severe and will continue to be so in the future. During more than nine months between the accident and the tidal Courson was almost constantly in pain. He was unable to sleep for more than three hours at a time, often being compelled to get up and walk around the house or lie down in front of the fireplace with his back to the heat. He must wear a back brace that adds materially to his discomfort. The pain will continue in the future with little likelihood that it can be relieved by surgery, which Courson is unwilling to submit to. Courson was 44 at the time of his injury, with an expectancy of 28 years. He was employed by the Game and Fish Commission as a game warden, in an outdoor job involving much driving, hiking, and other strenuous activity. He had not served long enough to have accumulated retirement benefits. Courson’s injury resulted in a disability of 20% to his body as a whole. Although he was still employed at the time of the trial, he was not able to perform all his duties and will be in constant jeopardy of losing his job. He is not trained for anything except outdoor work involving strenuous exertion. Should he lose his present position there is much doubt about his ability to find other comparable employment. We have already mentioned the policy that some employers are shown to have against the employment of persons with a history of back injuries. We think, without detailing all the facts in the record that bear upon the amount of the verdict, that we may conclude the discussion by observing that we are unanimous in the belief that the award is not demonstrably excessive. Affirmed. Harris, C.J., and Byrd, J., dissent as to Point I.

Holt, J. Appellees brought suit against the appellant Mrs. Lethe S. Omohundro in the Pulaski circuit court on a brokerage account and recovered judgment against her in the sum of $796.42. The material allegations of the complaint are as follows: That plaintiffs, D. W. Fly and O. A. McFall, are engaged in general 'brokerage business in Little Eock, Ar •kansas; that from March. 19, 1937, through April 15, 1937, they purchased for defendant’s account 500 shares of Missouri Pacific Preferred and 100 shares of common; and that in September, 1937, the market declined and they requested defendant to put up additional margin for her account and when she failed to do so they liquidated the securities in the account at a loss to themselves of $796.42, for which judgment was prayed. The answer of appellant is as follows: “Comes the defendant, Mrs. Lethe S. Omohundro and denies each and every material allegation. “Wherefore, having fully answered, this defendant prays that she be discharged and for her costs herein expended.” Appellant alleges one assignment of error for our consideration, that the verdict is contrary to the law and evidence. In this assignment she contends that the court below erred in failing to submit to the jury her contention that she placed a stop order with appellees. We dispose of her contention as to the stop order by saying that she neither set this up in her answer as a defense nor did she ask the court for a proper instruction thereon. We pass now to appellant’s contention that the verdict is contrary to the law and the evidence. The facts stated in the most favorable light to appel-lees are substantially as follows: Appellant instructed appellees to purchase for her on the New York Stock Exchange at various dates beginning March 19, 1937, and ending April 15, 1937, 500 shares of certain stocks, which appellees proceeded to do. She, also, placed in their hands cash in the sum of $3,097.47, out of which to make these purchases. From the date of the last purchase until September, 1937, the stocks fluctuated on the market and on September 24,' 1937, after the market had gone down, defendant’s equity was entirely wiped out. On this date she owed plaintiffs a balance of $796.42. It is conceded by the parties hereto that a contract existed between them under which these operations were being carried on, the substantial provisions of which are: Any transaction shall be subject to the constitution, rules, regulations, customs and usages of the exchange or market (and the clearing house, if any) where executed. Appellees might pledge and repledge any securities in defendant’s account whenever they saw fit to do so; that they could liquidate the account whenever in their discretion they considered it necessary for them to do so for their own protection, such as in.the event of bankruptcy, the death, or the appointment of a receiver for the defendant; that they can liquidate the account without any notice or call for margin whatsoever. Also, the contract provides that defendant shall at all times be liable for the .payment of any debit balance owing in any of her accounts with appellees upon demand, and that she shall be liable for any deficiency remaining in any of such accounts in the event of the liquidation thereof in whole or in part, by either appellant or appellees. After a careful consideration of the evidence as disclosed by the record, it is our conclusion that it is of a very substantial nature and that the verdict of the jury should not be disturbed. We are also of the view that the instructions given by the court were correct declarations of the law applicable to the facts in this case and it would serve no useful purpose to set them out here. It, of course, is not necessary to cite authorities from a long line of our cases which hold that where there is substantial evidence to support a verdict, it is our duty to affirm it. We, therefore, hold that the judgment of the court below should be affirmed, and it is so ordered.

Frank Holt, Associate Justice. Appellants paid the losses incurred by their insureds as a result of an explosion and fire which allegedly was caused by the negligence of the appellee. Following our reversal in Erwin, Inc. v. Ark. La. Gas Co., 261 Ark. 537, 550 S.W. 2d 174 (1977), appellants were substituted as plaintiffs for the individuals and businesses originally named as plaintiffs. A jury found for the appellee, and on appeal two grounds are urged for reversal. Appellants first contend that the court erred in refusing to admit the testimony of Kinerd Gates concerning certain statements made to him by Arvil Alvis, an agent of the appellee, about gas leaks in the alley where the explosion and fire occurred. Appellee responds that the testimony was properly excluded because there was no foundation for its admission. The excluded statements were contained in Gates’ deposition which was being read to the jury because he was unable to testify at trial. One of the excluded statements was made four months prior to the explosion at which time Alvis allegedly told Gates and his wife there was “one helluva leak in that alley’’ where the explosion occurred. The other statement was made to Gates in the alley a month or two prior to the explosion there. Alvis allegedly told him that he was “checking for a leak, gas leak.” The court refused to admit the statements on the ground they were hearsay. We hold that these proffered statements are not hearsay. They fall within the definition of an admission of a party opponent as set forth in Ark. Stat. Ann. § 28-1001, Rule 801 (d) (2) (iv) (Repl. 1979), which provides: (d) A statement is not hearsay if: . . . (2) Admission of a party opponent. The statement is offered against a party and is . . . (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship . . . The range of statements admissible under the agency standard was broadened considerably by this rule which is a verbatim adoption of the Federal Rules of Evidence, rule 801 (d) (2) (D), 28 U.S.C.A. “Once agency, and the making of the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.” Weinstein’s Evidence § 801 (d) (2) (D) [01], p. 162. See also Mahlandt v. Wild Canid Survival, Etc., 588 F. 2d 626 (8th Cir. 1978); Process Control v. Tullahoma Hot Mix Paving Co., 79 F.R.D. 223 (E.D. Tenn. 1977); and Pino v. Protection Maritime Ins. Co., Ltd., 599 F. 2d 10 (1st Cir. 1979). The rule insures the trustworthiness and reliability of the admission by providing that such statements are admissible only if made during the existence of the relationship. An employee is unlikely to jeopardize his job by making false statements which are costly to his employer. Weinstein’s, supra. Here in response to appellee’s objection as to hearsay, appellants’ attorney stated that he understood the proof would be that when Alvis made the statement he was an employee of Arkla engaged in responding to leak complaints and making repairs on gas lines. The proffer was sufficient to establish that the statements were made during the existence of the relationship and related to a matter within the scope of the employment. In view of this proffer, the court erred in refusing to admit these statements. Neither can we agree with appellee’s argument that the evidence, identical to the proffered evidence, was later elicited by appellants from Alvis. We are also of the view that the court erred in permitting the local fire chief to testify concerning his investigation as to the cause of several other explosions and fires which had occurred in the vicinity a few months before and after the explosion and fire causing the damages here. Evidence of similar occurrences is admissible only when it is demonstrated that the events arose out of the same or substantially similar circumstances. The burden rests on the party offering such evidence to prove the necessary similarity of conditions exists. Arkansas Power and Light Co. v. Johnson, 260 Ark. 237, 538 S.W. 2d 541 (1976). See also Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581 (1971). Here appellee offered no evidence that the conditions surrounding the other fires, including one fire ascertained as being caused by arson, were similar to the fire involved in this case. Consequently, the evidence as presented is not relevant to the cause of this particular fire. Ark. Stat. Ann. § 28-1001, Rule 401 (Repl. 1979). Neither do we agree with appellee’s argument that the appellants, by cross-examining appellee’s witness, had “open[ed] up” the issue thereby justifying the local fire chiefs testimony. Reversed and remanded. Stroud & Mays, JJ, not participating.

George Rose Smith, Justice. Under our 1973 No-Fault Insurance Act an insurance company which makes a no-fault payment to its own insured is entitled to a lien upon, and a right of reimbursement from, any tort recovery obtained by its insured, less the insurance company’s proportionate part of the costs of collection. Ark. Stat. Ann. § 66-4019 (Supp. 1977). In this dispute between two insurance companies Northwestern, which had a lien under the statute, contends in effect that it was entitled to a full recovery without paying its part of the costs of collection. The circuit judge, sitting as a jury, rejected that contention, and we agree. Northwestern, the plaintiff, issued an automobile liability policy to Walter and Lucille Stacey. The policy contained the no-fault medical and income benefits specified by the statute. § 66-4014. The Staceys were injured in a collision between their car and one driven by Bennie Ivory. Northwestern paid the Staceys $6,425.78 under the policy. Later on the Staceys employed James C. Cole as their attorney and brought suit against Ivory and his wife in Hot Spring county. The appellee, American States, was Ivory’s liability insurer. American States settled the case by paying the full amount of its policy, $28,500, with the check being made payable jointly to the Staceys and Cole. Northwestern had notified Cole of its claim. Cole’s fee was 30% of the amount recovered. Cole sent Northwestern a check for $4,-498.05, the amount of Northwestern’s subrogation claim less Cole’s 30% fee. Cole made the same 30% deduction from the Stacey’s share of the money. Before the settlement Northwestern’s representative, Richard Greenlee, had discussed its claim with American States’ representative, William Plummer. Greenlee testified that in a telephone conversation Plummer promised to protect Northwestern’s subrogation interests. Plummer denied having made such a promise. The trial judge found, in rendering his decision, that there was no oral contract by American States to protect Northwestern’s claim free of any expense to it. Regardless of the oral agreement, Northwestern argues that American States had notice of Northwestern’s lien and should have protected it in any of several suggested ways. One suggestion is that American States should have included Northwestern as a joint payee of the settlement check, “so that it could not be cashed except on terms satisfactory to the Staceys, their attorney and Northwestern.” We do not see that Northwestern has any basis for complaint. Subrogation is governed by equitable principles. Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W. 2d 811 (1964). Under the statute Northwestern’s claim was burdened with its proportionate part of the costs of collection. § 66-4019, supra. There can be no doubt that costs of collection include reasonable attorneys’ fees. Maxcy v. John F. Beasley Constr. Co., 228 Ark. 253, 306 S.W. 2d 849 (1957); Winfrey & Carlile v. JVickles, 223 Ark. 894, 270 S.W. 2d 923 (1954). Northwestern makes no contention that Cole’s fee of 30% is unreasonable. Consequently, even if American States had included Northwestern as a payee of the settlement check, Northwestern would still have had no equitable claim to its share of the money without first paying its part of Cole’s fee. That precise result was actually reached; so Northwestern’s argument is without merit. Affirmed. We agree. Harris, C.J., and Fogleman and Hickman, JJ-

John A. Fogleman, Justice. Appellants in this case constitute The Board of Apportionment of the State of Arkansas created by Amendment No. 45 to the Constitution of Arkansas. Appellees consist of citizens and residents of Pulaski, Jackson, Hempstead, Lonoke and Searcy Counties, a member of the Republican Party of Arkansas, Greene County and negro electors and small wag.e earners of Pulaski County. Some of them became parties by intervention. The same relief was sought by all of the appellees. They prayed that the reapportionment plan filed by appellants with the Secretary of the State of Arkansas and the United States District Court on July 15, 1965, be declared unconstitutional and void. They also asked that the appellants be granted a reasonable time within which to adopt a reapportionment plan in conformity with constitutional requirements by subdividing multi-membered districts and that the Pulaski Circuit Court subdivide these districts if The Board of Apportionment failed to act within a reasonable time. By demurrer appellants raised a question as to the jurisdiction of the court over the subject matter of the action. The demurrer was overruled and, after hearing evidence, the circuit court found in favor of the appellees and entered a judgment direding appellants to make a study of the present apportionment system and to redistrict where they found areas not appropriately subdistricted to insure distribution of legislators in a fair and representative manner. The trial court specifically ordered: that the senatorial district composed of Pulaski and Lonoke Counties be redistricted so as to assure that the voting strength of any political, racial, economic or geographically cohesive group is not minimized or canceled; and that the house district composed of Craighead and G-reene Counties, that composed of Searcy, Marion and Pope Counties, that composed of Newton and Johnson Counties be redistricted in the same manner. The trial court directed that The Board of Apportionment in all cases effect a redistricting which would create single-member districts unless valid and compelling reasons exist which require the creation of multimember districts in certain areas. The court’s direction to the board required reapportionment on the basis of the 1960 census figures, but it is not clear whether the court intended that this reapportionment be the basis for use in the election of 1970 with adjustments being made on the basis of preliminary federal census figures as a compliance with § 4 of Amendment No. 45 or whether there should be a reapportionment on this basis for the elections of 1970 and that an additional apportionment be made on the basis of the final census figures by February 1, 1971. The trial court’s memorandum opinion, in stating the principles to be, followed by The Board of Apportionment, indicated that floterial districts should be composed of a combination of relatively small counties, rather than having some of these counties attached to larger counties and that tradition. ally Republican counties be grouped together, rather than attached to more populous counties. Many interesting and forceful arguments for single-member districts are advanced by appellees. In view of the fact that we find that the trial court was without jurisdiction in this matter, no useful purpose would be served in dwelling upon these arguments. It is sufficient to say that some of them would be more appropriately directed to The Board of Apportionment. We note that many of them have already been rejected as a basis for holding Congressional District reapportionments unconstitutional in the recent cases of Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519, and Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed 2d 535, both decided on April 7, 1969. Section 5 of Amendment 45 reads: “Original jurisdiction (to he exercised on application of any citizens and taxpayers) is hereby vested in the Supreme Court of this State (a) to compel (by mandamus or otherwise) the Board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by the Board in making such apportionment; provided any such application for revision shall be filed with said Court within 30 days after the filing of the report of apportionment by said Board with the Secretary of State; if revised by the Court, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon be and become a substitute for the apportionment made by the Board.” The proceeding by appellees could be classified both as a proceeding to compel the board to perform its duties and as a proceeding to revise alleged arbitrary action of, or abuse of discretion by, the board in making the 1965 apportionment. That apportionment was ap proved by the three-judge court which heard the matter and its judgment affirmed by the United States Supreme Court. Yancey v. Faubus, 251 F. Supp. 998 (1965); Crawford County Bar Association v. Faubus, 383 U.S. 271, 86 S. Ct. 933, 15 L. Ed. 750 (1966). The trial court entered an order which, in substance if not in form, was a writ of mandamus to the board to perform its duties in a manner prescribed by the trial court. By that order the Circuit Court of Pulaski County assumed jurisdiction to make a reapportionment of the state itself if appellants failed to do so -within a reasonable time. Under the clear and implicit language of the section of Amendment 45 hereinabove quoted there is no jurisdiction in any Arkansas court to take the action sought by appellees except the supreme court. One of the appellees argues that this court has no original jurisdiction more than thirty days after the filing of the report of apportionment by the board, We. find no substance in this argument. The thirty-day limitation applies only to actions to revise an apportionment made by the board such as was done in Shaw, Autry and Shofner v. Adkins, Governor, 202 Ark. 856, 153 S.W. 2d 415. There is no time limitation on the filing of actions to compel the board to perform its duties. Appellees rely on such cases as Bailey v. Abington, 201 Ark. 1072, 148 S.W. 2d 176; Butler v. Democratic State Committee, 204 Ark. 14, 160 S.W. 2d 494; Faubus v. Kinney, 239 Ark. 443, 389 S.W. 2d 887; Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21, to indicate that this court’s original jurisdiction is not exclusive. There is no merit in this contention. In only one of these cases was The Board of Apportionment a party. In none of them was any effort made to compel the board to do anything. For the most part, litigation in those cases concerned the effect of reapportionments made by The Board of Apportionment. The lone exception is Faubus v. Kinney, where tlie question was whether the board had any authority, or even existed, in view of the holding by the United States District Court in Yancey v. Fembus, 238 P. Supp. 290, that parts of Amendment 45 were unconstitutional. We find nothing in the language of the constitutional amendment to indicate that any Arkansas court other than this one has any jurisdiction. It would be strange indeed, if this court should be vested with both original and appellate jurisdiction in these cases. "We hold that the jurisdiction of this court in these matters is exclusive. The action of the circuit court in overruling appellants’ demurrer was erroneous. Since the trial court liad no jurisdiction, the action is dismissed. No action was filed in this court seeking to have a revision of the 1965 reappertionment.

Holt, J. Appellant brings this appeal from an adverse ruling of the Pulaski chancery court. The facts as presented by record, substantially, are: On May 4, 1932, appellant, together with her then husband, John D. Cooper, purchased as tenants by the entirety lot 22 in block 2 of Fleming & Bradford’s Addition to the city of Little Eock, Arkansas, from S. M. Dent, .Trustee of Home Eealty Corporation, bankrupt. The consideration was $1,700, of which $800 was paid in cash and the balance was represented by a lien note in' the principal sum of $900 with interest at 7 per cent, and payable in monthly installments of $25. The deed retained a vendor’s lien to secure the unpaid purchase money. The monthly payments were made to and including June, 1933, and a payment of $15 was made in July, 1933. On December 15, 1933, appellant was committed to the Arkansas State Hospital for Nervous Diseases and was an inmate on April 6, 1934. On this latter date, John D. Cooper, husband of. appellant, secured a loan from the Home Owners’ Loan Corporation, appellee, to refinance the indebtedness in the sum of $745.91 due S. M. Dent, trustee of the Home Realty Corporation, and in evidence thereof executed a note in the sum of $842.62, with interest thereon at 5 per cent, and to secure the payment thereof executed a mortgage to appellee to cover the above described property. The name Mary Ella Cooper is also signed to the note and mortgage in question. It is agreed, however, that her name on the instruments in question cannot bind her for the reason that she was insane at the time of their execution. The appellee delivered to S. M. Dent, trustee, bonds of the face value of $725, with accrued interest of $7.61,- in full payment of the original lien held by Dent, and a check in the sum of $13.30. The balance of $96.71 consisted of taxes, insurance, abstract bill, and incidental expenses in connection with the closing of the loan. At the time appellee paid the amount due Dent on his vendor’s lien, Dent’s right to foreclose his lien had matured. Subsequent thereto appellant, Mary Cooper, was declared sane and default having been made in the payment due the Home Owners ’ Loan Corporation, foreclosure was begun in the Pulaski chancery court. Neither the appellant nor her husband paid any taxes on the land from the date of the execution of the mortgage to Home Owners’ Loan Corporation. The trial court held that the mortgage in favor of appellee was void as to appellant, Mary Cooper, but that it was in full force and effect as to John D. Cooper, former husband of appellant, and decreed an equitable sub-rogation in favor of the Home Owners’ Loan Corporation for the amount due it together with taxes paid subsequent to the execution of the mortgage. The sale was held under the terms of the decree and property purchased by appellee. The court confirmed the sale, but subsequently set aside the confirmation. Upon this state of the record, appellant earnestly insists here that the appellee, Home Owners’ Loan Corporation, acted as a mere volunteer in paying the ven dor’s lien held by S. M. Dent, and thereby acquired no right or interest in the property in question by virtue of having satisfied the vendor’s lien held by S. M. Dent, trustee, or under the note and mortgage executed to it by John D. Cooper, husband of appellant. To this contention we cannot agree. It is our view that the only question involved on this appeal is whether the Home Owners’ Loan Corporation, appellee, is entitled to equitable subrogation to the rights of the original lien holder, S. M. Dent, trustee, and to the right to foreclose its lien on the property. We are of the opinion under the facts as reflected by this record that the Home Owners’ Loan Corporation is entitled to subrogation and does have the right to foreclose its lien on the property. The undisputed facts show that on May 4, 1932, appellant and her husband acquired by deed an estate by the entirety in the property in question from S. M. Dent, trustee in bankruptcy for the Home Realty Corporation, and that Dent retained a vendor’s lien for the unpaid purchase money. At this time appellant was sane, and there can be no question as to the validity of this original lien held by Dent. The appellee, Home Owners’ Loan Corporation, was formed for the purpose of relieving distressed home owners by amortization and refinancing of existing indebtedness. In Pennell v. Home Owners’ Loan Corporation, 21 F. Sup. 497, the court said: “The, Home Owners ’ Loan Corporation was created by authority of the act of June 13, 1933, as amended, 12 US'CA, § 1461 el seq., to engage in the business of loaning money and refinancing mortgages on real estate, a business that private corporations and individuals commonly engage in. The principal purpose of the act, as was recited therein, was to provide emergency relief with respect to home mortgage indebtedness, to refinance home mortgages, and to extend relief to owners of homes occupied by those who were unable to amortize their debts else-Avhere.” John D. Cooper, husband of appellant at the time, negotiated with appellee and secured the loan in question in the sum of $842.62, and this money was used in payment of the original vendor’s lien held by S. M. Dent, as trustee for the Home Realty Corporation, and since said deed to Cooper and wife (appellant) retained a lien on said property, we hold that appellee is clearly entitled to he subrogated to the rights of Dent under said lien and to a foreclosure thereof. One who liquidates a lien on behalf of another under such circumstances as reflected by this record cannot be said to be a volunteer. Our court is committed to the rule that one who pays a debt at the instance of the debtor is not a .volunteer. If when the payment was made he manifested an intention to keep the prior lien alive for his protection, he will be deemed in equity a purchaser of the incumbrance. This court in Rodman, et al, v. Sanders, Admr., 44 Ark. 504, laid down the rule that one who advances money to pay off an incumbrance on land such as a vendor’s lien at the owner’s instance is not a volunteer. In Stephenson v. Grant, 168 Ark. 927, 271 S. W. 974, according to the facts there were two liens of record when the mortgage was executed by the owner to Mrs. Gaddis. Frielander ■& Oliven Company had sold a 40-acre tract to Turner Grant on March 2, 1918, reserving a lien on the land to secure the balance of the purchase money. On the 1st day of April, 1919, Grant and his wife executed a second mortgage to W. H. Stephenson to secure an indebtedness in the sum of $400, evidenced by a promissory note in said sum, and to secure future advances, subject to Frielander & Oliven Company’s lien for the balance of the purchase money. Grant made application to the cashier of the Merchants & Planters Bank of Eudora for a loan of $1,000 with which to pay the existing liens and to build a house on the land. The bank did not want to make a long time loan, and the cashier of the bank secured a loan for Grant with Mrs. Gaddis as mortgagee. Grant and his wife executed four notes in the sum of $250 each, and to secure the same executed a mortgage on the land to Mrs. Gaddis. The mortgage was recorded, and a release deed was executed by Frielander & Oliven Company and placed of record. The cashier of the bank assured Mrs. Gaddis she would have a first lien on the land, and tes tified that it was his understanding that Mrs. Gaddis was getting a first lien on the land. Notwithstanding the fact that the Stephenson mortgage was of record, the Chicot chancery court decreed a subrogation in favor of Mrs. Gaddis to the extent of the first lien of Frielander & Oliven Company and for taxes subsequently paid, holding that Stephenson’s rights were not prejudiced by such sub-rogation. We quote from Stephenson v. Grant, supra, as follows: “The rule of law applicable to cases of this kind is well stated in a foot-note on page 473 of 37 Cyc. It is as follows: ‘One who advances money to pay off an incumbrance on realty, at. the instance either of the owner of the property or the holder of the incumbrance, either on the express understanding or under circumstances from which an understanding will be implied, that the advance made is to be secured by a first lien on the property, is not a mere volunteer; and, in the event the new security is, for any reason, not a first lien on the property, the holder of such security, if not chargeable with culpable and inexcusable neglect, will be subrogated to the rights of the prior incumbrancer under the security held by him, and to this end equity will set aside a cancellation of such security, and revive the same for his benefit. ’ In discussing the equitable doctrine of subrogation, it is said in 37 Cyc., p. 365, that ‘its basis is a doing of complete, essential, and perfect justice between all the parties without regard to form, and its object is the prevention of injustice;’ and, at page 371, that ‘generally, where it is equitable that a person, not a mere stranger, intermeddler, or volunteer, furnishing money to pay a debt should be substituted for and in the place of the creditor, such person will be so substituted.’ ” In this case the court held that Mrs. Gaddis was not a volunteer and cited Rodman, et al, v. Sanders, Adm., supra. The principals of equitable subrogation are discussed at length in the case of Marks, et al, v. Baum Building Co., et al, 73 Okla. 264, 175 Pac. 818. The doctrine of subrogation has been further discussed in the case of Home Owners’ Loan Corporation v. Collins, et al, 120 N. J. Eq. 266, 184 Atl. 621, as follows: “Generally when the person advancing the money to pay the old debt takes á new mortgage and the old lien is canceled, there is no subrogation, because the acceptance of the new security evidences an agreement and an intention by the new creditor to rely thereon rather than on the old and because, upon the cancellation of the old lien, nothing remains to be the object of subrogation. But where, through fraud or mistake, the new security turns out to be defective, there frequently arises a third kind of subrogation. It does not depend upon the sub-rogatee having been a surety or having had an interest in the property to protect, and it does not depend upon agreement that he would be subrogated to the rights of the old creditor. It grows rather from an agreement or understanding that he would obtain a security o.f a particular kind and from his failure, through fraud or mistake, to obtain such security.” In Southern Cotton Oil Company v. Napoleon Hill Cotton Company, 108 Ark. 555, 158 S. W. 1082, 46 L. R. A. N. S. 1049, this court quoted with approval Rodman v. Sanders, supra, and said: “Subrogation, in its literal and equitable significance, is the demanding of something under the right of another, to which right the claimant is entitled for the purposes of justice to be substituted in place of the original holder. Its phases are various, but it preserves its characteristic features throughout. It is the machinery by which equity of one man is worked out through the legal rights of another. It rests upon the maxim that no one shall be enriched by another’s loss, and may be invoked wherever justice and good conscience demand its application in opposition to the technical rules of law, which liberate securities with the ex-tinguishment of the original debt. This equity arises when one not primarily bound to pay a debt, or remove an incumbrance, nevertheless does so; either from his legal obligation, as in the case of a surety, or to protect his own secondary right; or upon the request of the original debtor, and upon the faith that, as against the debtor, the person paying will have the same sureties for reimbursement as the creditor had for payment. And this equity need not rest upon any formal contract or written instrument. Like the vendor’s lien for purchase money, it is a creation of a court of equity from the circumstances.” The theory of equitable assignment, as laid down by Pomeroy is: ‘In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor, primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection. The doctrine is also justly extended, by analogy, to one who, having no previous interest, and being under no obligation, pays off the mortgage, or advances money for its payment, -at the instance of a debtor party for his own benefit; such a person is in no true sense a mere stranger and volunteer.’ Pomeroy, Equity Juris., vol. 3, § 1212.” On this record we hold that the Home Owners ’ Loan Corporation, appellee, in good faith liquidated an existing valid lien on the property in question, was in no sense a volunteer' in so doing, and is entitled to equitable subrogation and to foreclose its lien thus created. We are of the opinion, however, that appellant should be given an opportunity to redeem this property by paying to appellee the amount due it under its lien, this right, however, not to extend beyond 90 days from the date of this opinion. As thus modified the judgment of the court below is affirmed.

M. Steele Hays, Judge. This is an action in tort arising as the result of personal injuries suffered by the appellees — Bobby Jack Spears, Rex England and Donald Jackson. The injuries occurred when the three, who were area farmers, fell from a bridge belonging to Washington County. Appellees and a number of other farmers had gathered to observe pollution tests which were being conducted on the creek below. In order to observe the tests, the three men were either sitting upon or leaning against the iron railings located on each side of the bridge. The railings collapsed, and the appellees fell into the creek bed below, causing the personal injuries complained of. The jury returned a verdict for the appellees, but found that they were guilty of contributory negligence to the extent of 25%, and the damages were reduced accordingly. The amount of the judgment for each of the appellees after reduction was as follows: Bobby Jack Spears — $30,000 Shirley Jeanne Spears (his wife) — $750 Donald Jackson — $30,000 Shirley Jean Jackson (his wife) — $1875 Rex England — $6375 From this judgment, the defendant, Home Insurance Company, appeals, asserting five points for reversal. The first point raised by the appellants is that the trial court erred in refusing to grant appellant’s motion for a directed verdict. Specifically, the appellants allege that the three appellees were mere licensees while on the bridge and therefore, were owed no duty by the county except to avoid harming them by wilful and wanton misconduct. The testimony indicated that the appellees went to the bridge primarily for the purpose of watching the pollution tests being conducted. Hence, the appellant argues that the appellees did not use the bridge for its intended purpose: as a means of transit. The appellant also argues that since the county received no benefit from the appellees being on the bridge, then their status, while there, was inevitably that of licensee. We cannot agree. All of the cases cited in the appellant’s brief, with one exception, are cases which come under the Federal Tort Claims Act. 28 U.S.C.A. § 2674 states that the United States shall be liable, “respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.” Hence, in many instances, the Federal courts are applying the economic benefit test, that is, whether the owner of the premises receives some pecuniary gain, either real or potential, by the plaintiffs presence on his land, to determine the status of the plaintiff as either licensee or invitee. However, an alternative theory in determining the status of the plaintiffs is the “invitation test.” In the latter case, a person becomes an invitee when the premises are made open to the public, and he enters pursuant to the purposes for which they are thrown open. There must be some basis for the person believing that the premises have been made safe to receive him. However, when the premises are made open to the public, the assurance will be implied. This second theory is now accepted by a clear majority of the courts. Bunnell v. Waterbury, 103 Conn. 520, 131 A. 501 (1925); Dowd v. Portsmouth Hospital, 193 A.2d 788 (N.H. 1963); Smyke v. State, 117 N.Y.S. 2d 163, 203 Misc. 186; Guilford v. Yale University, 128 Conn. 449, 23 A. 2d 917 (1942). [See also 65 C.J.S. Negligence § 63 (41) and Prosser on Torts 4th Ed., pp. 388-390.] Some jurisdictions have gone so.far as to reject the distinction between licensee and invitee and apply a simple negligence standard, regardless of the status of the plaintiff. Rowland v. Christian, 70 Cal. Rptr. 97, 443 P. 2d 561 (1968); Mile High Fence Company v. Radovich, 175 Colo. 537, 489 P. 2d 308 (1971); Pridgen v. Boston Housing Authority, 308 N.E. 2d 467 (1968); Peterson v. Balach, 294 Minn. 161, 199 N.W. 2d 639 (1972). In the instant case, the property upon which the appellees were injured was a public bridge. Guard rails were placed on either side of the bridge, and the evidence presented at trial indicated that they were improperly installed. Although the appellant argues that the rails were not used for their intended purpose since the appellees were either sitting or leaning upon them, we believe that this question properly addressed itself to the jury. It was for the jury to decide whether, under all the circumstances, there was negligence. We believe that the trial judge properly denied appellant’s motion for a directed verdict and submitted the issue to the jury upon a correct instruction of the law. Appellant’s second point for reversal is that the trial court erred in permitting testimony concerning an offer to pay medical expenses and an offer to settle the claims. Evidence was introduced by the appellees, over appellant’s objection, of Mr. England’s testimony concerning a conversation between the Washington County Judge and Mr. England, in which the county judge told liim to bring all of his medical bills and “the insurance company would pay it.” Rule 409 of the Uniform Rules of Evidence states: Evidence of furnishing, offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. If there were doubt as to the purpose for which this evidence was offered, the record clearly indicates that appellee’s purpose was to introduce evidence on the question of liability. The appellee admits that the testimony was “simply to show the issue of liability.” (Tr. 583). Recently, the Arkansas Supreme Court has had the opportunity to interpret this rule in Ferguson v. Graddy, 263 Ark. 413, 565 S.W. 2d 600 (1978). In that case, Justice Fogleman, speaking for the majority, stated that the intent of the rule is that it is in the best interest of the society “that humanitarian and benevolent instincts need not be hobbled by the hazard that assistance to an injured person be taken as admission of liability in a personal injury action.” Under the rule as stated, this evidence should not have been received over appellant’s objection and its prejudicial impact on the issue of liability must be assumed. The appellants also allege that the trial court erred in refusing to give the jury a modified version of AMI 612, dealing with the assumption of the risk. We do not agree. Upon instructing the jury as to the defense of assumption of the risk, there must be some evidence upon which the jury can find that the plaintiffs had knowledge and appreciation of danger which they allegedly assume. Mercury Mining Company v. Chambers, 193 Ark. 771, 102 S.W. 2d 543 (1937). In this case, there was no such evidence. There was no evidence to show that plaintiffs knew the guard rails were defective and might break if leaned upon. We hold that the jury was given proper instructions on contributory negligence and that there was no evidence upon which an assumption of the risk instruction would be justified. Finally, appellant would have us reverse on two further arguments: that the court erred in permitting an economist to testify as the amounts a farm worker might have been expected to earn projected over the work expectancy of the plaintiffs, and that it was error to instruct the jury as to that part of AMI 2206 which relates to the recovery of past and future earnings or profits. We deem it unnecessary to discuss the second point for the reason that the case must be retried and the propriety of AMI 2206 will depend upon the evidence presented at the second trial rather than in the record before us. As to the other part of the argument, no error by the trial judge occurred in refusing to strike the testimony of Dr. Phillip Taylor. Dr. Taylor simply testified as to the approximate gross earnings farm laborers of the ages of the respective plaintiffs could expect to earn at current wage levels over the remainder of their productive years. The evidence had a reasonable relevancy to the issue of damages and cannot be said to be immaterial even though the plaintiffs operated their own farm units and therefore their earnings would be affected by market considerations, weather conditions, their own efficiency, et cetera. The plaintiffs also contributed their own labor in the farming operation, and the jury was entitled to hear evidence dealing with the value of farm labor. At least as early as 1895, Arkansas has recognized the loss of earning capacity as a proper matter of inquiry in personal injury cases. Railway Company v. Dobbins, 60 Ark. 481 (1895). See also Arkansas Power & Light v. Tolliver, 181 Ark. 790 (1930). Corpis Juris Secundum, Damages, Sec. 87(b), p. 958, states: The measure of damages for the diminution of one’s capacity to earn money, or for loss of future earnings, involves numerous considerations as a broad general rule. All evidence tending to show the character of plaintiffs ordinary pursuits and the extent to which the injury was prevented, or will prevent him from following such pursuits is admissible. Evidence which may be of help to a jury in weighing the issue of damages should be admitted even though it fails to provide a mathematical valuation of the impairment. Leave v. Boston Elevated Railway Company, 28 N.E. 2d 483 (Mass. 1940). Further, the admissibility of this evidence was within the sound discretion of the trial judge, and that discretion was not misused. Little Rock Gas & Fuel Company v. Coppedge, 116 Ark. 334 (1914); Arkansas Power & Light Company v. Johnson, 260 Ark. 237, 538 S.W. 2nd 541 (1976). The judgment is reversed and remanded.

David Newbern, Judge. Appellee Roberts was convicted in Conway Municipal Court of driving while under the influence of intoxicants, first and second offenses, and driving a vehicle without a license. The municipal court trial took place March 28, 1977. The conviction was appealed, and the appeal came on for trial (de novo) in the Circuit Court on February 8, 1979. _ At the Circuit Court hearing, a motion to dismiss was presented. It was based on the requirement of A.R. Crim. P. 28.1 and 28.2 that a defendant must be brought to trial before the end of the third full term of court from the time the charge is filed. Excluded from the limitation period is “the period of delay resulting from a continuance granted at the request of the defendant or his counsel.” A.R. Crim. P. 28.3 (c). At the hearing in the Circuit Court, the defense counsel moved to dismiss. He and the City Attorney stipulated that three terms of court had passed since the December 1976 term. The defense counsel referred to a circuit court docket notation that on July 20,1978, the case was “continued at the request of the defendant.” The defense counsel then commenced to “testify” that he had been counsel for the defendant since before the munciipal court trial, and that at no time had the defendant ever moved for a continuance. The City Attorney insisted the Court accept the docket notation made by the former circuit judge. The conviction was affirmed, with the Court noting that the defendant had failed to appear, preferring to stand on his motion to dismiss. Assuming without deciding that Rule 28.1, et seq., apply to cases appealed to circuit courts as well as to cases in which charges are filed in circuit courts, we affirm the Court’s action. The only evidence before the Court consisted of the docket notation. Counsel for the defendant was not sworn, no affidavits were filed, and no witnesses were called. The Court had no choice but to rely on the docket notation. This case is easily distinguishable from Holland v. State, 252 Ark. 730, 480 S.W. 2d 579 (1972), in which there was a joint stipulation that the defendant had not sought a continuance. See also, Baugh v. City of Pine Bluff, 257 Ark. 768, 520 S.W. 2d 275 (1975), where the Arkansas Supreme Court makes it clear that in a case such as this, the defendant has an affirmative obligation to offer proof that any delay was not at the instance of the defendant. Affirmed. No mention is made on this appeal that the special municipal judge who initially convicted the defendant and the circuit judge to whose court the case was appealed were the same person.

George Howard, Jr., Judge. We are to determine whether the following exclusions contained in an automobile insurance policy shield the insurer, Farmers Insurance Group, from liability on a judgment, in the sum of $4,420.96, obtained against its insured, Elgin and Alan Canley, father and son, respectively, by appellant for damage sustained to appellant’s 1974 Oldsmobile in a one car accident while driven by Alan Canley, age 17 years: This policy does not apply under Part I (Liability Insurance Coverage): “(10) to damage to (a) property owned or transported by the insured, (b) property rented to or in charge of the insured other than a residence or private garage, or (c) property as to which the insured is for any purpose exercising physical control. This policy does not apply under Part IV (Coverage for Damage to the Insured’s Automobile): “(4) with respect to a non-owned automobile (a) to any loss against which the owner of such automobile is covered by other insurance, or (b) arising out of its use in any other business or occupation of the insured, except a private passenger automobile operated or occupied by the named insured or a servant;” THE FACTS On April 7, 1974, appellant and Alan Canley were traveling through Lincoln County enroute to Crossett from a weekend trip. Appellant was the owner of the vehicle. Alan, while operating the automobile, fell asleep and, as a consequence, drove off the highway causing property damage in the amount of $4,420.96. At the time of the one car accident, Farmers Insurance Company of Arkanaas provided automobile liability and collision coverage for Alan and his father, Elgin Canley. When Farmers Insurance Company denied liability for the property damage, appellant’s own collision carrier, Thurston National Insurance Company, paid appellant for the loss sustained. Subsequently, appellant filed his action against Alan and Elgin Canley resulting in a judgment against the Canleys in the sum of $4,420.96. Upon Farmers Insurance Company’s failure to pay the judgment, appellant instituted this action against Farmers Insurance Company. Farmers Insurance Company affirmatively asserted the exclusions contained in its policy issued to Canley as a defense. After discovery had been completed, both appellant-plaintiff and appellee-defendant filed their motions for summary judgment. The trial court entered a summary judgment in behalf of Farmers insurance Company stating, in relevant part, as follows: “The parties have agreed and the Court doth find that there are no material issues of fact in dispute in this cause. It is the finding of the Court that the damages sought to be recovered by the plaintiff in this cause from the defendant are expressly excluded from coverage under the policy of automobile liability insurance by the two exclusions relied upon by defendant.” THE DECISION Appellant’s argument for reversal of the trial court may be briefly summarized as: “. . . a non-owner operator of an automobile is subject to liability for negligence in a suit by an owner-occupant. The present suit against Farmers Insurance Company simply carries the Walton [Walton v. Tull, 234 Ark. 882, 351 S.W. 2d 20] one step further. If a non-owner operator is subject to liability for his negligence in causing collision damage, then that person’s insurance policy ought to be construed, if reasonably possible, to protect him when such liability does occur.” We are not convinced by appellant’s argument that the trial court committed reversible error. We are persuaded that the issues involved in this case are controlled under the pronouncements of the Arkansas Supreme Court in Farm Bureau Insurance Company v. Lubin, 265 Ark. 536, 580 S.W. 2d 447 (1979) and MFA Mutual Insurance Company v. Wallace, 245 Ark. 230, 431 S.W. 2d 742 (1968). In Lubin, the Arkansas Supreme Court made it clear that a policy provision excluding property damage coverage for property owned by, transported by, rented to, or in charge of insured was applicable to exclude coverage for property damage, under provisions creating coverage with respect to liability for injury to or destruction of property caused by accident arising out of ownership, maintenance or use of any automobile; and that the insurer owed no duty to defend the insured in automobile owner’s action against insured. In Wallace, the Arkansas Supreme Court upheld the validity of the “other insurance clause” with reference to uninsured motorist coverage. We are persuaded that this rule indeed is dispositive of the defense asserted in this action relative to “other insurance coverage.” Moreover, it seems clear that parties are without restraint to agree upon any conditions that are reasonable and not against public policy. MFA Mutual Insurance Co. v. Bradshaw, 245 Ark. 95, 431 S.W. 2d 252. Appellant argues that Mutual Liability Insurance Co. of Wisconsin v. Puryear Wood Products Co., 247 Ark. 673, is controlling. We do not agree. In Puryear the Arkansas Supreme Court affirmed the trial court in holding that an exclusion contained in a policy did not apply because the exclusion was ambiguous and, accordingly, should be construed strictly against the insurer who prepared the policy. Affirmed. M. Steele Hays, J., dissents.

Conley Byrd, Justice. Appellant Clarence Bailey through his trustee in bankruptcy brought this action against appellee Ford Motor Company upon the theory that Ford breached an implied warranty of fitness in the sale of a 1967 Ford automobile. Ford generally denied all the allegations of the complaint and specifically set up a statutory disclaimer of liability for an implied warranty. A jury found the issues in favor of Ford Motor Company. On this appeal, appellant, pursuant to Ark. Stat. Ann. § 27-2127.2 (Repl. 1962), designates the following as the record on appeal: (1) all pleadings, (2) all instructions, (3) all exceptions to instructions, (4) the judgment on the verdict, (5) notice of appeal, and (6) designation of record. For reversal appellant, relies upon the following points: “1. The Court erred in failing and refusing to submit the case to the jury on the implied warranty doctrine. “2. The Court erred in failing to void appellee's disclaimer. Appellee should be estopped to now contend a disclaimer defense. “3. Appellee’s disclaimer was not ‘conspicuous’. “4. Disclaimers, under the Uniform Commercial Code, are unconstitutional and void. Sec. 85-1-201 (10) of the Code is unconstitutional as a denial of due process and trial by jury. Disclaimers arc inimical to the public good.” The Uniform Commercial Code, Ark. Stat. Ann. $ 85-2-334 and § 85-2-316 (Add. 1961), provides: “85-2-314. (1) Unless excluded or modified (Section 2-316 [§ 85-2-316]), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind ... “(2) Goods to be merchantable must bo at least such as ... “(c) are fit for the ordinary purposes for which such goods are used;...” “85-2-316 ... (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ “(3) Notwithstanding subsection (2) “(a) unless the circumstances indicate otherwise, all implied warranties are .excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and . .. “ (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade ...” In addition to damage instructions, the trial court instructed the jury as follows: “Plaintiff claims that he purchased a car manufactured by defendant and that it was not reasonably fit for ordinary usage. Plaintiff claims that defendant impliedly warranted or guaranteed the car as being reasonably fit for usage. “Defendant claims that its warranty or guarantee specifically excluded any implied warranty and that it has observed the warranty fully. “The warranty has been introduced in evidence. “If you find that the written warranty was in effect at the time the plaintiff experienced difficulty, you are instructed that it does exclude any implied warranty of fitness and you may find for the defendant. “If you find the warranty was not in effect, you may find for the plaintiff. “In determining whether or not the written warranty and warranty disclaimer was in effect you may consider whether or not it was a part of the transaction and/or whether it was subsequently received and ratified by the plaintiff. “You are instructed that by operation of law, a manufacturer of automobiles impliedly warrants or guarantees to a purchaser that the new automobile is ‘fit for the ordinary purposes for which such automobile is to be used’; however, the law permits a seller to exclude or disclaim an implied warranty and defendant has properly excluded any implied warranty by language in tlie warranty. The question for you to decide is whether the defendant’s written warranty was in effect at the time of this transaction.” Two of the instructions requested by appellant and refused by the trial court are as follows: “You are instructed that by operation of law, a manufacturer of automobiles impliedly warrants or guarantees to a purchaser that the new automobile is ‘fit for the ordinary purposes for which such automobile is to be used.’ ‘ ‘ You are instructed that under the law, a manufacturer has a legal right to modify or exclude altogether the statutory implied warranty of fitness of his product. To do so, however, the manufacturer must put its exclusionary language in writing, and the exclusionary language must be conspicuous.” POINT 1. In Kimery v. Shockley, 226 Ark. 437, 290 S.W. 2d 442 (1956), we had before us an abbreviated record. We there said, “When error appears in a record shortened without objection we are not to presume that ihe judgment is supported by the omitted matter, Ark. Stat. Ann. § 27-2127.6 (1947); but it goes without saying that when the abbreviated record is free from apparent-error we cannot assume that the omitted matter would require a reversal of the judgment.” The abbreviated record here consists of only the complaint alleging an implied warranty, an answer specifically setting up a statutory disclaimer of the implied warranty, the instructions and the judgment incorporating the jury verdict. Since the instructions given by the court were permissible within the pleadings and are not inherently erroneous, there is no basis for us to say that the trial court erred in giving the instructions. For the same reason the appellant has failed to demonstrate error oil the part of the trial court in refusing the instructions requested by appellant. POINT 2. Appellant argues that the Ford Motor Company should now be estopped to contend a disclaimer defense because Ford objected to the court’s instructions on the basis that they did not permit the jury to determine whether the car was reasonably fit for use. AAA find this contention to be without merit. The objection is not inconsistent with Ford’s theory of disclaimer. Furthermore, appellant made no such., contention before the trial court. POINT 3. Appellant argues that Ark. Stat. Ann. § 85-2-316 (Add. 1961) requires a manufacturer to use conspicuous print in its disclaimer as a prerequisite to avoiding the liabilities of an implied warranty. AVe find no error for several reasons. In the first place the alleged warranty or disclaimer was not designated as a part of the record. Although a booklet entitled “1967 Ford” and marked “defendant’s exhibit 1” is attached to the record, the alleged disclaimer has not been abstracted. Further, Ark. Stat. Ann. § 85-2-316 provides that implied warranties are excluded by language or expressions which in common understanding call the buytv’s attention to the exclusion of warranties and make plain that there is no implied warranty and that an implied warranty can also be excluded or modified by course of dealings or course of performance or usage of trade. Therefore we are unable to say that appellant has demonstrated error by the trial court in instructing the jury that the defendant had excluded any implied warranty by the language in the warranty. POINT 4. Appellant argues that Ark. Stat. Ann. § 85-1-201 (10) (Add. 1961) is unconstitutional in that it deprived him of a jury trial on the fact issue of whether or not the provisions of the disclaimer were conspicuous. Appellant did not raise the constitutional issue in the trial court. Constitutional questions cannot be raised for the first time on appeal. See North Hills Memorial Gardens v. Simpson, 238 Ark. 184, 381 S.W. 2d 462 (1964). Affirmed.

John A. Fogleman, Chief Justice. This appeal is the product of the inexorable march of inflation. Appellant, Southwestern Bell Telphone Company (hereafter referred to as Bell) seeks a reversal of the circuit court’s affirmance of the order of the appellee Arkansas Public Service Commission (hereafter called PSC) setting aside proposed new intrastate rate schedules filed by the telephone company on March 1, 1976, and allowing the company to file a new rate schedule designed to produce additional revenues amounting to slightly more than one-third of those anticipated from the schedule proposed by the company. On March 1, 1976, the telephone company sought PSC approval of a new rate schedule pursuant to Ark. Stat. Ann. § 73-217 (Repl. 1957). It would have produced an increase of annual revenues to the company amounting to approximately $ 18,180,000. By an order entered March 29,1976, the commission suspended the proposed rates for six months, the maximum period of suspension allowed under Ark. Stat. Ann. § 73-217 (b), the applicable statute. Pursuant to the provisions of that statute, the telephone company, on August 1, 1976, made the proposed tariffs effective under an “Agreement & Undertaking” approved by PSC, and these rates were collected until June 20, 1978. The six months’ suspension expired on September 29, 1976, both by the terms of the order and by operation of law. Hearings on appellant’s application were not even commenced until November 15,1976. They were concluded on November 24, 1976. Briefing time was allowed thereafter and the last briefs were filed on January 3,1977. No order was entered by PSC until September 1, 1977. That order not only set aside the rates proposed by the telephone company, it also required the refund of all revenues collected by the company on the basis of its proposed rates in excess of those authorized in the order. On December 9, 1977, PSC entered an amended order authorizing an additional $26,120 in annual revenues. The application filed by the telephone company was based upon a rate of return of 9.27 percent on the original cost of its property used in providing intrastate telecommunications service in Arkansas based on a test year ending December 31, 1976., This rate of return had been approved by PSC just six months prior to the filing of this application in the last previous rate proceeding involving appellant. Appellant asserted that the increase authorized by the earlier proceeding had proven insufficient to produce the rate of return allowed. The order entered September 1,1977, as amended, fixed the rate of return at 8.31 percent and allowed increased annual revenues based on that rate applied to a test year rate base valued as of June 30, 1976. Appellant’s petition for review by the circuit court was filed November 11, 1977, after PSC had failed to act upon appellant’s petition for rehearing filed September 21, 1977. The circuit court affirmed the PSC order on March 22,1979. Bell has presented its arguments in nine (stated) points for reversal. The arguments and contentions made under those points are to some extent overlapping and sometimes repetitive. Many of them would be more appropriately addressed to PSC than to the courts. We will endeavor to deal with Bell’s basic arguments without attempting to treat the individual points separately. We must, however, give due regard to the limitations on the scope of judicial review and to the expertise of the commission. The scope of judicial review is neither so narrow as PSC would have it nor so broad as Bell asks us to make it. It is fixed by Ark. Stat. Ann. § 73-229.1 (Repl. 1979). The courts can only determine whether: (1) the commission’s findings as to the facts are supported by substantial evidence; (2) the commission has regularly pursued its authority; and (2a) the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or the State of Arkansas. It is only the findings of fact that are tested by the standard of substantial evidence, which is a question of law. Arkansas Public Service Com’n. v. Continental Telephone Co., 262 Ark. 821, 561 S.W. 2d 645; State Highway Com’n. v. Byars, 221 Ark. 845, 256 S.W. 2d 738; J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S.W. 2d 82; St. Louis Southwestern Ry. Co. v. Braswell, 198 Ark. 143, 127 S.W. 2d 637. All of the questions to be determined, then, are questions of law. In answering these questions, the courts may not pass upon the wisdom of the commission’s actions or say whether the commission has appropriately exercised its discretion. City of Ft. Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474; Allied Telephone Co. v. Arkansas Public Service Com’n., 239 Ark. 492, 393 S.W. 2d 206; Arkansas Power & Light Co. v. Arkansas Public Service Com’n., 226 Ark. 225, 289 S.W. 2d 688; Harding Glass Co. v. Arkansas Public Service Com’n., 229 Ark. 153, 313 S.W. 2d 812. The judicial branch of the government must defer to the expertise of the commission. Arkansas Power & Light Co. v. Arkansas Public Service Com’n., supra. See also, Fisher v. Branscum, 243 Ark. 516, 420 S.W. 2d 882. Judicial review is not reduced to a formality, however, and it is for the courts to say whether there has been an arbitrary or unwarranted abuse of the commission’s discretion, even though considerable judicial restraint should be observed in finding such an abuse. Incorporated Town of Emerson v. Arkansas Public Service Com’n., 227 Ark. 20, 295 S.W. 2d 778; Arkansas Public Service Com’n. v. Continental Telephone Co., supra. It is not for the courts to advise the commission how to discharge its functions in arriving at findings of fact or in exercising its discretion. Arkansas Power & Light Co. v. Arkansas Public Service Com’n, supra; Ohio Bell Telphone Co. v. Public Utilities Com’n., 301 U.S. 292, 57 S. Ct. 724, 81 L. Ed. 1093 (1937). On the other hand, it is clearly for the courts to decide the questions of law involved and to direct the commission where it has not “pursued” its authority in compliance with the statutes governing it or with the state and federal constitutions. In questions pertaining to the regular pursuit of its authority, the courts do have the power and duty to direct the commission in the performance of its functions insofar as it may be necessary to assure compliance by it with the statutes and constitutions. The question of reasonableness of the commission’s actions relates only to its findings of fact and to a determination of whether its action was arbitrary. We must remember that the commission action has been reviewed in the circuit court and that the burden is on the appellant to demonstrate error in that court’s judgment. See Fisher v. Branscum, supra. Appellant first contends that its proposed rates became effective upon the. expiration of the suspension and, as a result, none of the revenue collected prior to September 1, 1977, is subject to refund. The suspension order provided that the rates were suspended for six months, “or until such earlier time as the Commission may order.” Appellant argues that its proposed rates became effective on September 30,1976, and that PS C lost its power to act with regard to the rates and any revenues collected under them. The commission is authorized to suspend proposed rates pending its investigation and decision, but not for a period to exceed six months. There is no indication whatever of any legislative intent that PSC should entirely lose jurisdiction of the rate proceeding by its failure to reach a decision within the sus pension period. By the same token, the time limitation is not meaningless, as it would be, if the refund order is held valid. It should be remembered that the hearings on the rate increase were not even commenced during the suspension period. The only purpose of the limitation on the suspension is to prevent the “regulatory lag” between the filing of an application for a rate increase and the commission’s decision from having a confiscatory tendency. If the commission’s decision can be delayed for 18 months after the filing of the application by the utility, it could be delayed for two or three times that long. In these days of galloping inflation, the passage of time can be crucial. Perhaps the delay was attributable to the heavy load falling upon PS C as a result of inflationary trends. If, however, the utility has no protection from a long delayed decision which requires a refund, repetitive applications for rate increases will be filed by it during the pendency of its initial application. This would only serve to increase the workload of the commission and produce additional delay. The time limitation must be given some meaning. We take it to mean that, in this case, the commission had no authority to order a refund of revenues collected on the basis of the proposed rates between the date of the expiration of the suspension order and the date of the order fixing the rates allowed. By the clear language of § 73-217, it is only the operation of the rates that may be suspended, but that suspension cannot exceed six months. See New England Telephone & Telegraph Co. v. Public Utilities Co., 362 A. 2d 741 (Me., 1976); State v. Montana-Dakota Utilities Co., 89 N.W. 2d 94 (N.D., 1958). On the other hand, we do not agree with appellant that refunds of collections made between August 1, 1976 and September 30, 1976, could not be ordered because no valid rate order was entered within the time limitation on the power of suspension in § 73-217. See Application of Montana-Dakota Utilities Co., 102 N.W. 2d 329 (N.D., 1960). Bell had no vested rights in collections under bond of the difference between the old rates and the new ones it proposed collected during the suspension period. Application of Montana-Dakota Utilities Co., 111 N.W. 2d 705 (N.D., 1961). We reject PSC’s suggestion that a holding that it may not order a refund of revenues collected after the expiration of the suspension period would constitute a court-imposed time limit on the commission’s deliberations. The time limit was imposed by the General Assembly. It must be remembered that the PSC is a creature of the legislature and that, in rate-making, it is performing a legislative function, which has been delegated to it. City of Ft. Smith v. Department of Public Utilities, 195 Ark. 513, 113 S.W. 2d 100; Arkansas Power & Light Co. v. Arkansas Public Service Com’n., 226 Ark. 225, 289 S.W. 2d 668. The commission was created to act for the General Assembly and it has the same power that body would have when acting within the powers conferred upon it by legislative act. Department of Public Utilities v. Arkansas Louisiana Gas Co., 200 Ark. 983, 142 S.W 2d 213. The General Assembly certainly has not surrendered the power to fix time limitations on the actions of its own agency. PS C’s order of suspension clearly recognized that the limitation on its suspension of rates had some significance by suspending “new intrastate rates, tolls and charges . . . for a period of six (6) months, or until such earlier time as the Commission may order.” [Emphasis ours.] If PSC does not enter a suspenion order prior to the stated effective date of the proposed rates, those rates, by the clear language of Ark. Stat. Ann. § 73-217 (a) and (b), would “go into effect” or “become effective.” The suspension order simply suspends the proposed rates for six months “beyond the time when such rate or rates would otherwise go into effect.” Appellee has not suggested any other meaningful application of the six months’ limitation. PSC does argue that its action was proper under Ark. Stat. Ann. § 73-217 (c) because it is directed to determine and fix the just and reasonable rate or rates to be charged or applied by the utility for service ‘ ‘from and after the time said new rate or rates took effect,” and in the same order fix the amount or amounts plus interest, if any, to be refunded to the consumer which were collected by the utility “during the time such new rate or rates were in effect.” When all the subsections of § 73-217 are read together, it is clear to us that it was contemplated by the General Assembly that the investigation and hearing should be completed and an order for a refund made during the suspension period. We agree that PSC had the power and authority to order the refund or any rates collected during the suspension period which it ultimately found to be excessive, in spite of the time limitations in § 73-217. We did not even approach the questions involved here in Department of Public Utilities v. McConnell, 198 Ark. 502, 130 S.W. 2d 9, relied upon by appellee. PSC also argues that Bell’s “Agreement and Undertaking” guaranteed repayment of any amount which the commission found excessive. The particular language relied upon is: Should any portion of such rates in excess of the rates in effect immediately prior to August 1, 1976, be finally determined to be excessive by the Commission, Southwestern Bell Telephone Company does hereby agree and undertake to insure the prompt payment of any refunds ordered by the Commission together with interest thereon not to exceed Ten Percent (10%) per annum. Certainly this agreement is not to be taken as an open-ended commitment to pay a refund directed by an order that is made without authority. Furthermore, we take this agreement to be the “bond” or substitute therefor required by Ark. Stat. Ann. § 73-217 (b). Thus, the agreement was, in effect, a statutory bond. As such, the terms of the statute are considered as if they are written into the bond, and, in determining the extent of liability on the bond, the language of the statute is controlling over the language of the bond. Miller v. State, 262 Ark. 223, 555 S.W. 2d 563; Empire Life & Hospital Insurance Co. v. Armorel Planting Co., 247 Ark. 994, 449 S.W. 2d 200. When this agreement is read in the light of the statute, it does not require any refund that the commission could not order under the statute. In other words, the agreement could not bind Bell to do more than the commission could require under the statute and the agreement cannot have the effect of increasing PSC’s power or Bell’s obligation. In ordering the refunds for rates collected after the expiration of the suspension order, PSC did not regularly pursue its authority, so that portion of its order must be set aside upon judicial review, and the judgment of the trial court reversed to that extent. Appellant also contends that the PSC order of September 1,1977, is totally void, or, in the alternative, can only have prospective effect because the commission failed to enter its order within 60 days of the hearing as required by Ark. Stat. Ann. § 73-229 (Repl. 1979). This 60-day period expired on January 23, 1977, if it began to run when the hearing of evidence was concluded. If the filing of briefs is considered as a part of the hearing, the 60-day period expired on March 4, 1977, which was nearly six months prior to the date when the order was finally entered. We have previously held that PSC was not deprived of jurisdiction after the expiration of the 60-day period to act on a petition to close a business office of a utility. City of DeWitt v. Public Service Com’n., 248 Ark. 285, 451 S.W. 2d 188. Appellant distinguishes that situation from this by saying that in DeWitt the limitation on time was “an immaterial matter of convenience,” while in a rate case time is an extremely critical matter, as shown by the intricate timing mechanisms established in Ark. Stat. Ann. § 73-217 and by the apparent discriminate use of the words “shall” and “may” in § 73-229. In DeWitt we held that the statute was directory and that non-compliance did not void the PSC order. Appellant’s arguments are appealing, but we reject them largely because there would be gross inconsistency in saying that the same words in the same statute have the effect of voiding commission action in one type of case governed by the statute and not in another. It is hardly possible to say that the statutory provision is directory in one type of case and mandatory in another, and there is no language in DeWitt that admits that possibility. To hold PSC action in this case void because it was robbed of jurisdiction and power on the basis of this statute would, in effect, overrule DeWitt. Since DeWitt itself involved a construction of the statute, we are reluctant to do this, particularly in view of the fact that the General Assembly made changes in the section involved after our decision in DeWitt without affecting our interpretation. Our statute is unlike the one considered in Mt. Konocti Light & Power Co. v. Thelen, 170 Cal. 468, 150 P. 359 (1915), relied upon by appellant. The statute there related to action upon petitions for rehearing and specifically provided that, upon failure of the commission to act within the time allowed by the statute, any party to the proceeding could take the commission’s order to be affirmed. Appellant advances the argument that DeWitt is distinguishable because the PSC order involved there had no retroactive effect. If, indeed, this part of the statute is directory but not mandatory, we cannot well hold that PSC’s failure to act deprived it of the power to order a refund of the additional revenues collected under bond, even though we do find that failure to render a decision within 60 days after the filing of the briefs in the case renders the final action of PSC prospective in all other respects. We had no occasion to consider this question in DeWitt. On this point, we find the holding in Fuller-Toponce Truck Co. v. Public Service Com’n., 99 Utah 28, 96 P. 2d 722 (1939) very persuasive. The Utah court held that the effect of delay in rendering a decision beyond a similar statutory limitation was to allow the parties to act in the interim without fear of penalty, but not to deprive the commission of jurisdiction and power to áct prospectively. See also, Hartman v. Glenwood Telephone Membership Corp., 197 Neb. 359, 249 N.W. 2d 468 (1977). Bell contends that it was deprived of due process of law because the PSC, without notice to Bell until the PSC staff filed its testimony only 14 days before commencement of the hearing on Bell’s application, changed the methodology followed by the commission in its order of September 4, 1975, upon Bell’s application for a rate increase made in that year. As a result, PSC concluded that Bell was entitled to a rate of return of 8.31 percent rather than the 9.27 percent rate of return authorized by PSC in the 1975 order. Bell argues that, in filing the application involved here, it relied and had a right to rely, upon the rate then fixed. Bell emphasizes the fact that its application was in strict conformity with the previous order and the accounting procedures adopted in that pro ceeding by PSC as proposed by Touche Ross & Company, an independent accounting firm employed by the PSC staff. The staff conceded that this was true. Bell’s statement that the rates allowed in 1975 had failed to produce the rate of return allowed in the same order and that its application was based upon that failure is not seriously contested. The differences in methodology and changes in procedure of which Bell complains relate to the end of test periods used in determining company expenses, revenues and investment in plant and to the approach to the rate of return necessary to enable the company to obtain capital necessary for its operations. Bell’s proposed test year ended December 31, 1976, ten months after the date of the application. Bell calculated that, at the end of the test year, its capital structure would consist of 54.11 percent common equity, 39.79 percent debt and 6.10 percent cost-free capital, and its embedded cost of debt would be 7.11 percent. Applying 12 percent return on equity, as authorized by the 1975 rate order, would produce an overall rate of return of 9.32 percent, but Bell sought rates which would produce only an overall return of 9.27 percent on the December 31, 1976, rate base. Bell calculated that, based upon adjustments to the December 31,1976 test year, in conformity with methods approved by PSC, Bell’s return, based on the rates allowed in the 1975 order, would amount to only 6.85 percent. J. B. Nichols, Bell’s vice-president and general manager for Arkansas, testified that, in framing the application, the methodology employed by PSC in its last previous rate case, including all the disallowances to revenues, expenses and investments, was utilized. This was also conceded. This witness said that the test year was chosen because of the attrition that occurs over a period of time due to the addition of new plant investment at higher cost than previous plant investment and the effect of delay which would occur during the consideration of Bell’s request for rate relief. He stated that rate relief based solely upon the relationship among revenues, expenses, and investment that existed in the past would prevent a utility from realizing the allowed rate of return either at the time of the order or at any time in the future and that Bell never caught up with its growth when a truly historical test period was used. He said that, at the time he testified, he had found it necessary to change certain projections made in April for the end of 1976. At least one of the changes was based upon data from the first seven months of 1976. Nichols pointed out that a future test year, consisting of nine months of actual data and three months of projected data, had been used in its last previous rate case. He said that Bell had furnished monthly data to the commission staff on actual performance as compared to forecast performance which showed that revenues and expenses had been within one to one and one-half percent of the forecasts, and that Bell’s record for forecasting, which had been furnished to the commission staff, demonstrated a very high degree of accuracy over a period of ten years. W. W. Lampkin, Bell’s chief supervising accountant for Arkansas, testified that, during that period, Bell’s actual operating revenues had averaged 0.6 percent below that budgeted and its operating expenses, 1.1 percent above that budgeted. Bell’s witnesses pointed out that at the time of the hearings in the middle of November, 1976, the idea that their proposed test year was a future test year was virtually moot. They also testified that, in calendar year 1975, no commission in the country had allowed the Bell system a rate of return on common equity as low as its actual return. According to them, this fact demonstrated that future test years had become necessary for utilities because the expense of future growth was greater than the growth in revenue produced. Bell’s chief supervising accountant said that a future test year required certain forecasts of changes in the economy that might occur and that projections were made from historical trends. Jerrell Clark, Chief of Accounting & Finance with PSC, chose the test year ending June 30, 1976, because it was based upon actual audited results of operations for that 12-month period. He said that it had been adjusted to year end level and for known changes in revenue and expenses for one year, assuming no growth. Clark said that Bell’s future test year required projections with projections. Lampkin elaborated on the reasons for the test year selection made by Bell, saying that there were three reasons: first, an attempt to reflect the condition which could reasonably be expected to exist at the time of the hearing, recognizing that rates are made for the future; secondly, the company’s historically good job of estimating future levels of revenues, expenses and investment, and, lastly, counteraction of the regulatory lag. He said that, at the time of the hearing, the staffs test period did not give an accurate picture of Bell’s financial picture, and that the use of such a test period would require Bell to seek additional rate relief in a very short time, which he believed was not in the best interest of the public, the commission, or Bell. Bell produced evidence that a minimum return of 14 percent on equity capital was required by it in order to raise large amounts of equity capital, that Bell’s cost of long term debt was 8.42 percent and that its embedded cost of debt was 6.75 percent as of February, 1976. This testimony was given by Bell officers. Basil L. Copeland, an economist on the staff of PSC since August, 1975, recommended a rate of return of 8.28 percent on the rate base, which he said would produce a return of 8.82 percent on investor supplied capital, including a return of 11.5 percent on American Telephone & Telegraph Company (hereafter referred to as A T & T) common equity. According to him, the 9.27 percent rate previously allowed did not take into consideration the effect of A T & T leverage on A T & T’s ability to earn a given return on equity. This was important because Bell is a wholly owned subsidiary of A T & T. In this situation, according to Copeland, there is a “double leverage” which exists in a holding company arrangement when leverage, i.e., debt, exists at the parent as well as the subsidiary level, and, unless this double leverage is given effect by a compensating adjustment in calculating the cost of capital, that cost will be incorrectly calculated and the subsidiary may earn more than its true cost of capital. Copeland explained two acceptable methods of calculating the cost of capital for a wholly owned subsidiary when double leverage exists. One of them used the subsidiary’s debt and equity ratios, but only permitted the subsidiary to earn its parent’s cost of capital on its equity. The other used a consolidated capital structure. He recommended that the commission use the first method, because there would likely be variations in capital structures and embedded debt costs among subsidiaries. Copeland said that the method he had used to calculate Bell’s cost of capital had been adopted by commissions in Iowa, Minnesota, New Jersey, New York and Wisconsin. He said that the methods universally employed by experts to estimate the cost of equity were subjective and amenable to any result desired. He explained a rather complicated mathematical formula which he said produced an objective result. In rebuttal, Bell offered the testimony of William P. Dukes, Professor of Finance at the College of Business Administration of Texas Tech University. He pointed out that Copeland’s recommended rate of return was below the 8.31 percent reported in the Wall Street Journal on November 10,1976, as the AAA utility bond rate. He disagreed with Copeland’s approach and took the position taken by the Tennessee Public Service Commission, i.e., cost of equity is a subjective factor which cannot be determined by precise mathematical formula but requires the application of informed judgment. He and other witnesses stated that Copeland had misapplied the basic model from which he had derived his formula, and that the formula incorporated economic variables which were unlikely to be repeated and assumed market equilibrium during a period when the “swings” were the widest in market history. These witnesses pointed out other matters which they took to be flaws in Copeland’s approach and in his formula. We have been troubled by the apparent inconsistency in PSC’s approval of different methods of accounting and different methods of computation of rates of return on different occasions, fully recognizing that it may be quite difficult to establish hard and fast rules to be utilized and followed in determining a fair rate of return but, at the same time, thinking that a more uniform application of established and predictable criteria would lead to fairer and more understandable results. Arkansas Power & Light Co. v. Arkansas Public Service Com’n., 261 Ark. 184, 546 S.W. 2d 720. While we understand appellant’s bewilderment, neither it, nor our concern, can be translated into a judicial mandate requiring the commission to take the same approach to every rate application, or even to consecutive applications by the same utility, when the commission, in its expertise, determines that its previous methods are unsound or inappropriate to the particular application. In effect, Bell is asking us to apply the doctrine of res judicata to require PSC to apply the methodology used by it in entering the 1975 order. But res judicata has little application to regulatory action by an agency in fixing utility rates, because rate-making is a legislative, not a judicial function. Duquesne Light Co. v. Pennsylvania Public Utility Com’n., 176 Pa. Super. Ct. 568, 107 A. 2d 745 (1954); State v. Alabama Public Service Com’n., 293 Ala. 553, 307 So. 2d 521 (1975); General Telephone Co. of Southwest v. Robinson, 132 F. Supp. 39 (E. D. Ark. 1955). It has been held that every rate order may be superseded by another, not only when conditions change, but also when the administrative understanding of the same conditions changes. 2 Davis, Administrative Law Treatise 610, § 18.09. See also, Rockwell Lime Co. v. Illinois Commerce Com’n., 373 Ill. 309, 26 N.E. 2d 99 (1940); State Airlines, Inc. v. Civil Aeronautics Board, 174 F. 2d 510 (D.C. Cir., 1949), reversed on other grounds, 338 U.S. 572, 70 S. Ct. 379, 94 L. Ed. 353 (1950). In Arkansas Power & Light Co. v. Arkansas Public Service Com’n., 226 Ark. 225, 289 S.W. 2d 668, we held that PSC was not bound by an earlier order authorizing the inclusion of construction work in progress in a utility’s rate base, and that the constitutional rights of the utility were not invaded by a change in that order, so long as proper notice was given to the utility. In that case, we relied heavily upon the holding of the Vermont Supreme Court that a commission such as PSC is not bound to the service of any formula or combination of formulas. The Vermont court had pointed out that, in Federal Power Com’n. v. Natural Gas Pipeline Co., 315 U.S. 575, 86 L. Ed. 1037, 62 S. Ct. 736 (1942), the United States Supreme Court had held that such agencies are free, within the ambit of their statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances. We have also held that no public utility has a vested right to any particular method of valúa tion. City of Ft. Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474. When we made that statement, we were considering rate base, but, of course, that is an important element in fixing rates. The principle is just as applicable to rate of return — and both factors are involved here. The commission has a wide discretion in choosing its approach to rate regulation. New England Telephone & Telegraph Co. v. Dept. of Public Utilities, 371 Mass. 67, 354 N.E. 2d 860 (1976). The differences involved here related to the fixing of rates on the application now under consideration and on previous applications. The rate of return was diminished by use of an approach involving a method which took into consideration the “leverage” attributable to the fact that Bell is a wholly owned subsidiary of American Telephone & Telegraph Company. It is the result reached, not the method employed, that is controlling, and it is not the theory, but the impact, of the rate order, that counts in determining whether rates are just, reasonable, lawful, and non-discriminatory under § 73-217. If the total effect of the rate order cannot be said to be unjust, unreasonable, unlawful or discriminatory, judicial inquiry is concluded, and infirmites in the method employed rendered unimportant. Federal Power Com’n. v. Hope Natural Gas Co., 320 U.S. 591, 64 S. Ct. 281, 88 L. Ed. 333 (1944). We are not possessed of the expertise necessary to evaluate the testimony of the experts in the field of economics. Evaluation of the testimony was for the commission, not the courts. Arkansas Public Service Com’n. v. Continental Telephone Co., 262 Ark. 821, 561 S.W. 2d 645. We are in no position to say that the testimony of Copeland had no reasonable basis. This we would have to do, in order to hold that it did not constitute substantial evidence. Wallace v. Williams, 263 Ark. 702, 567 S.W. 2d 111; Arkansas State Highway Com’n. v. Geeslin, 247 Ark. 537, 446 S.W. 2d 245. The test year to be used is a matter lying within the discretion of the commission, although the commission should consider complete and accurate information with respect to a later period of time, when available, as a check on the continuing validity of the test year experience in a period of rapid change. Matter of Wilmington Suburban Water Corp., 367 A. 2d 1338 (Del. Super., 1976). Both Clark for the PSC and Lampkin for Bell testified as to proper adjustments to be made on account of actual experience between June 30, 1976, made on account of actual experience between June 30,1976, and the date of the hearing. The commission, in its order, recognized the necessity for making these adjustments, and did so, following its staff recommendations to a great extent. The test year was a matter lying within the discretion of the commission and it preferred a historical test year because of the ability of its staff to audit the financial data presented by the utility, because some elements are eliminated, and because a future test year is not amenable to verification. We have held that the commission should not use a test year ending after the date of its hearing because promises and predictions are not a substitute for proof. City of Ft. Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474. The only hesitation we have in holding that PSC did not abuse its discretion is the fact that the test year adopted ended some 15 months prior to the commission’s decision. We conclude, however, that we are in no position to hold that there was a clear abuse of discretion. In further pursuing Bell’s argument that its constitutional rights were violated, we first point out that we do not consider the fact that Bell had no notice that the PSC staff would recommend a change in methodology and procedures followed in considering Bell’s last previous rate application until 14 days prior to the hearing, because Bell proceeded without asking that it be given additional time to rebut the testimony offered by the staff upon its assumption that PSC would reject the staffs approach, and because Bell did actually attack the staffs methods by rebuttal testimony, includ ing that of an independent expert witness whose qualifications were impressive. Since Bell had no vested right in the methodology or formulas previously used or the procedures followed by the commission and since it was afforded full opportunity to show that the changes made by the commission in the methods and procedures used in regard to Bell’s last previous rate application were improper, we find no denial of due process of law. The Fourteenth Amendment’s protection of property is a safeguard of the security of interests that one has already acquired in specific benefits, to which he has a legitimate claim of entitlement, rather than an abstract need or desire. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Bell is in no position to say that it was denied due process of law. In considering contentions that a PSC order prescribing rates is repugnant to the due process clause of the Furteenth Amendment and that it deprives a utility of its property without just compensation, the order must be viewed as having the same force as would a like enactment by the General Assembly. Bluefield Waterworks & Improvement Co. v. Public Service Com’n., 262 U.S. 679, 43 S. Ct. 675, 67 L. Ed. 1176 (1923). The question, according to Bluefield, is whether the rates fixed are confiscatory. A utility which would upset a rate order on the constitutional grounds asserted by Bell carries the heavy burden of showing that it is invalid because it is unjust and unreasonable in its consequences. If the total effect of the rate order cannot be said by the reviewing court to be unjust or unreasonable, the fact that the method used by the regulatory body to reach its result may contain infirmities is not important. Federal Power Com’n. v. Hope, 320 U.S. 591, 64 S. Ct. 281, 88 L. Ed. 333 (1944). When we give appropriate deference to the expertise of PSC, and view the PSC order as having the same force as a legislative enactment, we must say that Bell has failed to meet its heavy burden of showing that the rate order was confiscatory and Bell’s constitutional rights violated. Bell also contends that the commission abused its dis cretion and denied Bell due process of law by failing to grant its petition for rehearing. This petition was filed on September 20, 1977. In that petition, Bell alleged that the delay in acting upon its rate application, coupled with the use of a rate base which represented values 14 months prior to the PSC order, resulted in a confiscation of Bell’s property in violation of the state and federal constitutions. It also incorporated many of its contentions previously set out in this opinion. The basis of Bell’s argument that the rates fixed by the PSC order were confiscatory was its contention that the PSC finding that Bell’s cost of equity was 10.2 percent was unreasonably low and not based upon substantial evidence, and that the adoption of the test period ending June 30,1976, was inconsistent with inflationary economic development during the period intervening between the end of that period and the date of the order. Most of the petition was devoted to arguments and contentions made in the trial court and in this court as to limitations on the commission’s powers by time schedules set out in the governing statutes. Bell asked that the PSC order of September 1, 1977, be abrogated or modified to approve the rates as filed and to eliminate or modify the obligation to make refunds and for all other relief to which it might be entitled. The petition was supported by affidavits of James B. Nichols, Vice-President and General Manager for Arkansas, and W. W. Lampkin, an accountant who had testified on behalf of Bell. By his affidavit, Nichols undertook to demonstrate that between June 30, 1976, the end of the test year adopted by the commission, and September 1, 1977, the date of the PSC order, Bell had invested $139,000,000 in Arkansas, only part of which was assigned to interstate operations. In his affidavit, Lampkin stated that Bell had an annual revenue deficiency of $16,885,000, even at the 8.31 percent rate of return authorized by PS C and that, as of June 30, 1977, appellant would earn no more than 7.2 percent on its investment. We agree with appellee that the granting or denial of a petition for a rehearing is a matter resting largely within the discretion of a regulatory agency in rate cases. The real question before us is whether the denial of the petition for rehearing was an abuse of the commission’s discretion. Bell’s arguments that it is not receiving any return on approx imately $62,000,000 invested in its plant between the end of the test year and the PSC order, and the obvious fact that a regulated business cannot adjust its prices to meet inflationary increases in its costs, as an unregulated business can, are very appealing. They emphasize the necessity for more prompt action on a rate application than was taken here. After deliberate consideration of these arguments, we have finally concluded that we should not say that there was an abuse of discretion in this case. It seems to be the general rule that the denial of a petition for rehearing by an agency such ás PSC should be set aside on judicial review only for the clearest abuse of discretion. See United States v. Pierce Auto Freight Lines, 327 U.S. 515, 66 S. Ct. 687, 90 L. Ed. 821 (1946); Northeast Broadcasting, Inc. v. Federal Communications Com’n., 400 F. 2d 749 (D.C. Cir., 1968); Reese Sales Co. v. Hardin, 458 F. 2d 183 (9 Cir., 1972). In view of the limited scope of judicial review of the action of an agency performing a legislative function, we deem this rule to be appropriate and conclude that appellant has not shown such a clear abuse of discretion that overturning the commission’s action is warranted in this case, in spite of the fact that we feel that PSC approached the outer limits of its latitude of discretion. It was pointed out in Interstate Commerce Com’n. v. Jersey City, 322 U.S. 503, 64 S.Ct. 1129, 88 L. Ed. 1420 (1944), that there is always a gap between the time the record is closed and the time the administrative decision is promulgated, particularly when (as here) the issues are difficult, the evidence intricate and the consideration of the case careful and deliberate. The court also referred to Atchison, Topeka & Santa Fe Ry. Co. v. United States, 284 U.S. 248, 52 S. Ct. 146, 76 L. Ed. 273 (1932), upon which Bell relies, and pointed out that its effect had been promptly restricted to the special and exceptional facts there involved and that it stood virtually alone, as an isolated instance of that court’s interference with the exercise of the discretion of the Interstate Commerce Commission’s granting or refusing to reopen a hearing. The exceptional facts there involved were the closing of the record in September, 1928, the entry of an order to be effective on June 1, 1931, without reopening the proceeding and taking further evidence, and the drastic reduction in the operating income of the carriers involved in the depression year of 1930, which results in impairment of their credit. We have concluded that the facts in this case approach, but do not reach, the exceptional situation there involved. The time lapse is great, but not as long, even if the effects of inflation are taken to be as great as those of the Great Depression, and there is no showing that Bell’s income has been so drastically affected that its credit is impaired. In arriving at our decision, we have considered the fact that Bell was not totally without any other remedy. Bell relied upon a test period ending December 31, 1976. It certainly had no basis for assuming that PSC would act on a test period other than the one suggested by Bell or that proposed by the staff. There is nothing in the laws governing utility rate-fixing that would have prevented Bell from filing proposed rate changes based upon a test period that would include the new investment while PSC deliberated upon the previous application. We also conclude that Bell has not clearly shown that the rate of return upon its investment is confiscatory. If it was, Bell could have asked for emergency relief on the ground of immediate and impelling necessity under Ark. Stat. Ann. § 73-216 (b). Bell has also failed to show that the fact that the commission’s order did not consider Bell’s investment between June 30, 1976 and September 1, 1977, even though it was in use on the date of the order was, in this case, a violation of either the due process clauses of the Arkansas and United States Constitutions or of the prohibition against the taking of private property for public use without compensation. If Bell had shown that the rates allowed were confiscatory, then its contention would be sustained. The affidavit of Tompkin, and its supporting exhibits, showed that the rate base actually grew from $350,585,089 on June 30, 1976, to $390,877,000 on December 31, 1976, and to $412,827,000 on June 30,1977. The parties agree that if Lampkin’s unaudited valuations are used, there would be an earnings deficiency of $10,000,000. On the record before us, we are unable to say that these rates were confiscatory, as a matter of law. Bell’s proposed test period was December 30,1976, and was based largely on projections. The determination of the appropriate test period is to a great extent a matter addressing itself to the expertise of the commission. It is extremely difficult for the courts to say that the commission’s determination is erroneous, unless it is confiscatory. No problem would have presented itself to us had PSC acted within the statutory time frames. In arriving at the conclusion that the belated action was not confiscatory, we take into consideration the fact that Bell will not be required to make refunds for collections on its proposed rates between September 29, 1976, and the date of the commission order and the fact that PSC fixed the rate of return at 8.31 percent, the rate Bell witnesses indicated would be essential to retention of its AAA bond rating. Bell contends that, according to the holding in Bluefield Waterworks & Improvement Co. v. Public Service Com’n., 262 U.S. 679, 43 S. Ct. 675, 67 L. Ed. 1176 (1923), the failure of PSC to consider the value of its plant at the time it made the order deprived it of due process of law. Bell quotes language from the opinion in Bluefield that rates which are not sufficient to yield a reasonable return on the value of the property at the time it is being used to render the service are unjust, unreasonable and confiscatory and their enforcement deprives a public utility of its property in violation of the Fourteenth Amendment. There was a different problem in Bluefield, however. There the commission had fixed the value of the utility’s property, without giving any weight to the greatly enhanced cost of construction after World War I. The valuation used ignored the cost of reproduction of the property, basing its valuation upon the pre-war cost of construction. No new or added construction was involved in the court’s decision. The court actually quoted from and relied upon its earlier opinion in Willcox v. Consolidated Gas Co., 212 U.S. 19, 29 S. Ct. 192, 53 L. Ed. 382, 48 LRA (n.s.) 1134, Ann. Cas. 1916 A 18 (1909). In that case it had been held that if the property of a utility has increased in value since it was acquired, the utility was entitled to that increase. But the court there held that the value of the property is to be determined “as of the time when the inquiry is made regarding the rates.” The language quoted from Bluefield by Bell must be viewed in the light of the fact that Willcox was cited, and quoted in support of that language. Bell also says that PSC’s requirement that it pay interest at the rate of 10 percent per annum upon the refunds to be made by it is unreasonable, arbitrary and not supported by substantial evidence. Bell points out that PSC allowed the maximum interest rate permissible under Ark. Stat. Ann. § 73-217 (d), and that no evidence was introduced or offered as to the appropriate rate of interest. Bell contends that it is patently unreasonable to allow this rate of interest when, in the same order, it was held that Bell was entitled to only 8.31 percent return on its investment. The statute leaves the rate of interest to the discretion of the commission. Even though there was no evidence on the question, we may take judicial notice of the fact that interest rates are presently very high, and also were high at the time of the commission’s decision. We agree with Bell that it did not have the burden of showing the interest rate appropriate to the case, or even to offer evidence on the question. We also agree that any evidence on this particular point given at a hearing would, in these times, have been rendered insubstantial by lapse of time between the hearing and the entry of the PSC order because of the steady increase in interest rates during that period. We do not think that the interest rate was dictated by Ark. Stat. Ann. § 73-214 (Repl. 1979), fixing the rate of interest to be paid upon customer deposits, although that provision might be worthy of consideration by the commission. We are unable to say, however, that there was an abuse of the commission’ s discretion in view of the statute allowing interest at the rate of 10 percent per annum on judgments in favor of creditors, unless the court rendering the judgment, in his discretion, reduces the rate. See Ark. Stat. Ann. § 29-124 (Repl. 1979). The judgment of the trial court is reversed insofar as the refunds ordered by the Public Service Commission are concerned, but otherwise it is affirmed. The cause is remanded to the trial court for the entry of a judgment directing the commission to enter an order setting aside its order for a refund of refunds collected between September 29,1976 and September 1, 1977 by Southwestern Bell Telephone Company on the basis of its proposed rates and otherwise consistent with this opinion. Stroud and Mays, JJ., not participating. It may be that the march of inflation will require different approaches in the future. We recognized in the cited case that rates fixed must be reasonable and just for a reasonable time in the future. There we approved consideration of anticipated future extensions by a utility. It may well be that a factor for anticipated inflation will become a necessary ingredient in rate determinations, if annual, or even more frequent rate applications are to be avoided, but we are in no position to say that there was proof in this case that would have required the incorporation of such a factor in the formula used by PSC.

Baker, J. In the presentation and discussion of the issues upon this appeal an effort will be made to follow the legal terminology of the courts of the state of Oklahoma, and, by way of explanation, to avoid confusion in regard to such legal terms wherein our courts have expressed a different meaning, necessary references will be made. The death of the infant child, 18 months old, at Yian, Oklahoma, on October 10,1937, by reason of having been struck by one of appellant’s trains, became the basis of this suit. The facts were substantially as follows: While the parents of the child were temporarily away from home the child was left in custody of Unice Brown, .its grandmother, who, after dressing the child on the morning of its death, left it at play in one room of her home while she went about the duties of her household. After perhaps ten or fifteen minutes, absence of the child was discovered, and a search revealed its body beside the railroad track a short distance away. The grandmother’s property, .in which she lived, was near or about the middle of a long block south of the right-of-way of the railroad, which at that point was 150 feet wide. If McConnell Street, which formed the western boundary of the grandmother’s home, had been extended north and over across the railroad property, it would have crossed the railroad track at or near the place where the child was killed. From one side of the long block, beginning on Unice Brown’s property, there was a trailway or well worn pathway across the railroad’s right-of-way to the north side thereof. This path was and has been in general use for fifteen years.or more by pedestrians who desired to avoid the longer walk around and through the open streets at the ends of the block. The business section of Vian lay north of this point, which tended to make this crossing a popular one. The railroad company and its employees, including those operating its trains, knew of this pathway, and its constant and habitual use. In truth, the railroad company had put up on this path, on the north and south boundaries of its property, “NO TRESPASSING-” signs. Nothing else was done, however, to prevent the continued use of the trailway. We are advised that under the laws of Oklahoma railroad companies are not required to fence their rights-of-way in cities and towns, and perhaps that is about all else that might have been done. Although the child’s body was not mangled., it was picked up near the track, and circumstances were admittedly such as to indicate it had been struck by a train, which, but a few minutes before, had passed, going south. Therefore, the sufficiency of the evidence concerning the cause of death is not questioned. From a. judgment- in favor of the parents of the child comes this appeal. The appellant challenges the propriety of the verdict of the jury, and consequent judgment,- upon several grounds stated in the brief, including objections to several instructions, most of these objections may be said to be to the instructions en masse, and, since some of these objections are not tenable, it would be a waste of time and effort to sort out and discuss the more doubtful ones. Besides, we think our conclusions upon the whole case, arising out of issues fairly and fully presented, obviate the necessity of a discussion of any propositions . except those we deem of vital importance. In this presentation, we will state such further facts as may be deemed necessary to an understanding of the propositions of law that may be involved. Oklahoma has no statute similar to the Arkansas lookout statute, but there is a recognized duty resting upon operatives of trains ‘ ‘ to exercise ordinary and reasonable care to operate the train at a reasonable speed, commensurate with the physical surrounding's and the probability that persons may be upon the tracks at that point (the footpath, in this case), and consistent with the practical operation of the defendant’s train.” The quoted portion of the above statement is from an instruction the principal or real objection to which is that the court should have directed a verdict for appellant, instead of giving same. In addition, we should add that in that jurisdiction there is no presumption of negligence arising out of an injury caused by the operation of a train. Instead of such presumption, the courts have consistently announced that negligence is not and will not be presumed, but must be established by proof. • It is, perhaps, better, at this point, to say that the Oklahoma courts have given to the term or word “licensee” the same meaning we give to “invitee” in our courts, and what we have been characterizing as a “licensee” Oklahoma jurists designate as a “bare licensee.” Distinctions in terminology appear from our definitions in some of our decisions. Armour & Co. v. Rose, 183 Ark. 413, 36 S. W. 2d 70; Arkansas Short Line v. Bellars, 176 Ark. 53, 2 S. W. 2d 683. Appellees, in support of the judgment, insist that, under proper instructions, the jury has found that the child Avas a licensee, and that due regard to that status required the employees of the railroad company to approach and pass the point where the accident occurred in expectation that some one would be upon, the intersection of the path and railroad track. Only because both parties seem to have treated this matter concluded by the verdict of the jury as if it should be interpreted under the laws of Oklahoma, do we refrain from declaring that the law of the forum is that a licensee may not be willfully or wantonly injured after a discovery of his peril. Since the law of the forum declares him a licensee, it might well award the remedy suitable to that status. Since we prefer to decide the issues upon their merits, and, since counsel for appellant seem to have regarded this term “licensee” upon the trial below and in briefing the case as a chosen expression in legal terminology of our sister jurisdiction as tantamount to our “invitee,” we pass to other propositions. Only two people saw and were able to relate any facts in regard to the accident, telling how and where it occurred. Wash Downing was 75 yards away. He saw the child standing, facing the railroad track, at the trail, as the train approached about 30 feet distant from it. The child ivas crying. The witness turned away to avoid seeing the deadly impact. Quinton 'Barnes, a negro youth 14 years of age, testified to the same facts as were stated by Downing, except that he does say the child was near the path. Although Barnes was strongly contradicted, we accept his statement as true, as found bv the jury, together with the reasonable inference, that the child was near the pathway where it crossed the railroad. The engineer and fireman both testified. The effect of the fireman’s testimony was that he was keeping a lookout on the morning in question when the train went through Vian. It was .not necessary for him to leave the seatbox in the performance of his duties as fireman, as the fire was kept up by a stoker. That in the performs anee of his duties he was watchful as they went through cities and towns. That he did not see this small negro child at any place on that morning. He was upon the left-hand side of the engine, or north side, as the train proceeded on its way through Vian. He says that the train might have been stopped in seven hundred or eight hundred feet in an emergency. That they had no knowledge of having struck the child and killed it until they were notified of that fact when they reached Greenwood Junction. He suggests, however, that if the child was back behind the stock pens or where there was some vegetation, it could have approached the track after the engine had passed and been hit by some portion of the train other than the engine. The engineer’s statements were not essentially different in material matters from the fireman’s, except that he was on the right-hand side of the engine which is the opposite side from the one on which the child was seen by Barnes and Downing. The proof does not make clear whether the engine was one of those large types such that the engineer might not have seen a small object like this child if it had been near the track as the train approached the point where it was struck and killed. The engineer, however, states that he saw Mr. Harp, the section foreman, recognized him, although he did not know his name, and that they waved at each other as the train went on its way. It is argued by appellees that this fact testified to by the engineer and verified by Mr. Harp who states the same fact, was one that justified the jury in finding the operatives of the train negligent in failing to keep a proper lookout at the intersection of this pathway with the railroad track. The conclusion reached by counsel in this argument is that, at the very moment the engineer was observing Mr. Harp, had he been looking upon the railroad track, he would have most likely observed this child in a perilous or dangerous situation. According to the plat, that was barely 200 or 300 feet west of the trail. That argument might be sound, but, if it is, it does not explain why the fireman did not see the child at the same time and place. At most, this conclusion from the circumstances must be regarded as speculation, not supported by any evidence and not a reasonable inference from any testimony in this record. A statement with many more details could possibly be made; but the foregoing- gives the material and essential facts from all the evidence, and we think it unnecessary to elaborate or set forth matters in greater detail. The plaintiffs below relied on the negligence of the operatives of the train by running it at an excessive speed through the town of Yian, and, second, the failure to keep proper lookout for persons who might be at the inter- . section of the trailway and railroad track in that town. Before we begin to analyze the cases from the Oklahoma jurisdiction, we make this comment in regard to the speed of the train. There is no evidence tending to show that forty miles per hour was an unusual' speed for trains operated in that locality, nor was there any evidence of any particular condition, on that occasion or time of day, that required a slower rate of speed. We understand perfectly that it might be argued that the train should have 'been operated at a speed such that the train could have been stopped, had an emergency occurred, in order to prevent an accident. That argument is unsound, and its mere statement is its contradiction, for probably no train is- ever operated but that it might be moved so slowly that no accident would ever occur. We have purposely refrained from a discussion of many of the interesting* propositions of law that have arisen, mentioning only those, so far, that have appeared necessary to a complete understanding of the facts in the case. We shall attempt to dispose of the several questions without following any regular or fixed order, but as these matters are presented in the authorities we expect to use. The appellant argues, as a proposition to justify a directed verdict, that the grandmother, Unice 'Brown, who had charge of the child, was guilty of contributory negligence, and, since she was the agent of the child’s parents into whose care the child had been given, her negligence should be imputed to them. However sound that legal conclusion may appear, the answer thereto is found in art. 23, § 6, of the Constitution of the state of Oklahoma. The. effect of this is, that the defense of contributory negligence, or of assumption of risk, shall in all cases whatsoever be a question of fact, and shall at all times 'be left to the jury. This declaration of policy of that state by its Constitution needs no discussion or elaboration. Dickinson v. Cole, 74 Okla. 79, 177 Pac. 570. In the case cited, there was also a discussion by the court of a proposition of the speed of trains. It was held there that, inasmuch as - the speed of the train was in excess of a rate prohibited by a city ordinance, such fact would constitute negligence per se. In the case under consideration there is no ordinance or statute fixing or intended to fix or determine the rate or speed of trains at the time and place of the accident. One of the cases cited and discussed by counsel for both appellant and appellee is that of Missouri, K. & T. R. Co. v. Wolf, 76 Okla. 195, 184 Pac. 765. It was there held that to constitute actionable negligence where the wrong was not willful three essential elements were nec essary. (1) The existence of a dnty on the part of the defendant to protect the plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury of the plaintiff resulting from that failure. In that case there was also an announcement of the principles of law controlling’ situations such as we have under consideration. It was announced therein that the railroad company is bound to exercise special care and watchfulness at any point upon its tracks where people may be expected in considerable numbers as where the road-bed is constantly used by pedestrians. At such places the railroad company is bound to anticipate the presence of persons and to keep a reasonable lookout for them. It was in this particular case that the court announced the policy of the state to be in conformity with the announcement of Thompson on Negligence, second edition, § 1726, rather than to continue to follow the view expressed by Elliott on Bailroads, second edition, § 1250. Because we think it would unduly extend this opinion we do not attempt here to set up or discuss this new' policy as announced in that case, but we do keep it in mind in the determination of the issues involved in the instant case In passing, we venture to remark that this is one of the cases in which it was held that negligence relied upon for a recovery must be established by proof and that reasonable inferences only may be deduced therefrom as distinguished from any presumption of negligence arising out of the injury from the operation of the train. Upon this same point concerning the establishment of negligence by proof there are no doubt many Oklahoma, authorities, and, since we think that almost any case from that jurisdiction upon that subject is sufficient, we venture to call attention to the case of Chicago, R. I. & P. Ry. Co. v. Pedigo, 102 Okla. 72, 226 Pac. 72. We find that the first headnote in that case is to this effect: A railroad company will not be held liable for persons injured where there is no positive evidence or reasonable inference to be drawn from the testimony- that the railroad company was guilty of negligence. Because it would unduly extend this opinion we must content ourselves with the bare announcement as in the foregoing without attempting more elaborate statement of facts upon which it is based. We think, however, the conclusions of the court as announced to the effect that in any case, under the facts stated where there is no valid ground to establish negligence and the inference of negligence on the part of the employee is lacking, the verdict of the jury upon the unproven primary negligence of the railroad company should not be allowed to stand. The principal is exceedingly well stated in above citations. Numerous other authorities are cited by the court sustaining the position. Our attempt at further . discussion would not add to these well considered and elaborately stated principles. We suggest that the court in this case held, as we often have in our courts, that a verdict rendered solely upon conjecture will not be permitted to stand. The Supreme Court of Oklahoma in a comparatively recent case has set out with somewhat minute details the principles involved in a matter not essentially different from the one we have under consideration. A mere glance at the facts indicates that the same principles of law arising therein have been discussed by counsel in the instant case. An infant was killed at the intersection of a path with the railroad tracks under similar facts to those presented here. One of the principle questions with which we are interested in the instant case is the sufficiency of the evidence to establish negligence. That matter was there elaborately discussed. Numerous authorities were cited and reviewed and the conclusion was reached and the announcement of the law proclaimed as determining the rights of parties therein fits this case like a stocking-cap and covers it as to every essential issue. Midand Valley R. Co. v. Kellogg, 106 Okla. 237, 233 Pac. 716. We take the liberty to say that the court there announced that “to sustain the verdict we will have to presume that the employees of the company did not maintain a proper lookout, or if they did maintain proper lookout they did not attempt to stop the train in time to keep from striking the child and we have to further presume that the train could have been stopped in the exercise of ordinary and reasonable care before striking the child. ’ ’ The court then announced that the verdict is based upon conjecture and that negligence cannot be inferred, but must be proven and that such negligence when proven must be the proximate cause of the injury. So in this case there is no evidence that, as the train approached the crossing of this pathway, the child was where it could or might have been seen. The evidence is to the effect that it was not seen. That a lookout was kept. Speculation, however plausible, cannot supply a lack of evidence. In a much more recent case, Missouri, K. & T. R. Co. v. Sowards, 165 Okla. 214, 25 Pac. 2d 641, we find the Okahoma court announced the same principles, citing some of the same authorities and reaching the same conclusions upon identical facts as in other Oklahoma cases, some of which we have already cited. It was there held that the authorities cited, such as the Wolf Case, supra, and Wilhelm Case, Wilhelm v. M. O. & G. R. Co., 52 Okla. 317, 152 Pac. 1088, L. R. A. 1916C, 1029, discussed therein were binding upon the court. All these cases are binding upon us in attempting to declare the law in determination of the rights of Oklahoma citizens who have appealed to our courts in this controversy. It is conceded by all parties herein that the rights of the litigants who have invoked the aid of our courts are fixed and determined by the laws of Oklahoma, and only in so far as procedure is concerned do the laws of Arkansas prevail in the controversy. The foregoing authorities have been consistently followed by the Oklahoma courts. Some of the later cases cite the ones we have used here. Blackwell v. Miller, 181 Okla. 348, 73 Pac. 2d 852. We suggest to those interested that some of the matters have been discussed in 112 A.. L. R. 850 in an elaborate annotation. Perhaps it might be well to call attention to one other Oklahoma case, Chicago, R. I. & P. R. Co. v. McCleary, 175 Okla. 347, 53 Pac. 2d 555, in that case the Wilhelm and Kellogg Cases particularly were cited with approval. There is found also a discussion in regard to licensees, trespassers, etc. In conclusion, we hope it has been made clear in our discussion and statement of the differences in terminology in the respective jurisdictions of Arkansas and Oklahoma, that we have intended no adverse criticism of our sister jurisdiction. We have attempted to make clear rather the difference in the use of the words discussed so that there may not be any misunderstanding by any of the Arkansas courts or lawyers, who may have occasion to read this opinion. Doubtless the reader has already drawn the conclusion from a consideration of the valuable announcements and declaration of the Oklahoma courts upon the proposition discussed, that there is no substantial evidence of negligence as the proximate cause of the injury and death of the child. That only by conjecture and speculation may the verdict be supported. This cannot and will not be permitted. We have deemed the case fully developed and have attempted to make very reasonable inference from the proof presented and no advantage could arise out of a new trial. The judgment is, therefore, reversed and action dismissed.

Darrell Hickman, Justice. Mikel Wayne Houston was convicted of rape by forcible compulsion in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977) and sentenced to 20 years’ imprisonment. On appeal his counsel alleges only one error: the trial court should have allowed the introduction of evidence regarding the victim’s reputation and prior sexual conduct. The trial judge properly excluded the evidence and we affirm the judgment. Houston, age 25, was charged with raping a 16 year old girl. The victim testified that she and Houston had a date, drove to a secluded place and Houston pulled a gun on her, forcing her to have sexual intercourse. Houston testified she consented. Houston made a pre-trial motion requesting permission to use evidence about the victim’s reputation and prior sexual conduct. An in camera hearing was held and testimony of witnesses recorded as provided for in Ark. Stat. Ann. § 41- 1810.2 (Repl. 1977). At the private hearing, one witness said he had “messed around” with the victim; another said that he had had sexual intercourse once with the victim; testimony was offered that the victim “hung around clubs and bars.” The victim testified, and she essentially disputed all the unfavorable testimony. The appellant argues that evidence should have been admitted because it was relevant and to impeach the victim’s credibility since she denied the essence of the proffered testimony. Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) specifically prohibits the introduction of such testimony and further states such evidence: ... is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. The statute, then, clearly prohibits the use of such evidence for the reasons argued by Houston. The trial court ruled the evidence was not relevant and we cannot say that decision was clearly erroneous. Houston was permitted to file his own separate pro se brief in this case. He makes essentially the same arguments as his counsel. However, he also makes allegations of ineffective assistance of counsel. We will not consider that issue because it was not raised at the trial level. Hilliard v. Stale, 259 Ark. 81, 531 S.W. 2d 463 (1976). However, relief under rule 37, Rules of Criminal Procedure, is not precluded. Affirmed. We agree. Harris, C.J. and George Rose Smith and Byrd, JJ.

George Howard, Jr., Judge. Appellant was convicted by a jury of three counts of manslaughter, resulting in a sentence to the Department of Correction for five years and a $500.00 fine on each count, and driving on a suspended driver’s license, resulting in a $100.00 fine. The trial court suspended the fines imposed and ordered the sentences to the Department of Correction to run consecutively. For reversal of his conviction, appellant has asserted the following points: 1. The trial court erred in admitting into evidence State’s exhibits 4, 5, 6 — color photographs showing the location of the decedents’ bodies at the scene of the one-car accident and the condition of the vehicle driven by appellant — which served little probative value and were highly prejudicial. 2. The court erred in permitting Keith Ferguson — a State Trooper who estimated the speed of appellant’s vehicle at the time of the accident between 80 and 90 miles per hour which estimate was based in part on the speed the trooper could “take the curve” and stay on his side of the road — to give his opinion about the speed appellant’s vehicle was traveling at the time of the accident. 3. The trial court erred in refusing to grant appellant’s motion for a continuance to allow him to secure a vital medical witness — who was subpoenaed the morning of the trial and who resided in a city other than where the trial was being held. 4. The trial court erred in not allowing into evidence the medical records which were compiled by the appellant’s physician and of vital importance to the appellant’s defense. 5. The trial court erred in admitting into evidence Dr. Jorge Johnson’s testimony concerning Tina Randolph’s cause of death after it was conceded by the appellant that the accident was that cause. We are persuaded that appellant’s points four and five have merit and we reverse and remand to the trial court. Appellant offered to be introduced into evidence certain medical records compiled by appellant’s attending physician. The records consisted, according to appellant’s counsel, of the admission sheet at the Washington General Hospital, the discharge summary by Dr. McNair and Dr. Harris, the admission by Dr. McNair, the operative report for an operation on October 26, 1978, and the operative record for November 7, 1978. The following exchange took place after counsel for appellant offered the records: THE COURT: Any objection, Mr. Clinger? MR. CLINGER: Your Honor, we object to it, the admission of those documents on the following basis: We all concede those documents would be admissible to be referred to by expert testimony, the medical testimony, but other than that, they do not stand alone and if they’re admitted they don’t give me an opportunity to cross examine the doctors who made those remarks, so there’s no basis for those being admitted. THE COURT: Alright. The offered exhibit will be excluded and your objection noted. Rule 803 of the Uniform Rules of Evidence provides, in relevant part: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of informa tion or the method or circumstances of preparation indicates lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. As asserted by appellant, the State did not challenge the admissibility of the medical records on the grounds of the lack of trustworthiness or authenticity, but essentially that the State would not be afforded the opportunity to cross examine the doctors who made the records. The State argues for the first time that the records in any event are irrelevant and if the trial court was incorrect in not admitting the records on the grounds asserted by the State, the trial court should be sustained anyway. The State cites Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496 in support of its position. First, we perceive that Nelson is to be distinguished from the instant case. The medical records were admitted into evidence in Nelson, but the trial court refused to permit the medical record librarian to read from the records regarding the dates of several brain concussions suffered by appellant, medication prescribed, final diagnoses and summary of the hospitalizations. The Supreme Court of Arkansas, in sustaining the trial court’s action said: Finally, it is asserted that the court erred in refusing to permit medical librarians to read from medical records which had been offered into evidence by appellant. These records were offered as a matter of furthering the defense of insanity and appellant desired that the hospital employees read inter alia the dates of several brain concussions suffered by appellant, medication prescribed, final diagnoses, and summary of the hospitalizations. The records were properly offered . . ., but this fact in itself does not necessarily mean that all the contents of such records were relevant or competent. . . . Appellant achieved his purpose in offering these records, for the matters heretofore mentioned, with the permission of the court, were not only fully discussed by Mr. and Mrs. Nelson, parents of appellant, but by both the psychiatrist who testified for the defense, and the psychiatrist who testified for the State. The several concussions and circumstances surrounding were related to the jury in detail, and we cannot say that the mere reading of such records by non-experts would have added anything of value to the evidence. . . . While Dr. Robert Holder testified, in the instant case, that he treated appellant immediately after the accident and observed that appellant was in shock, smelled of alcohol, was uncooperative, combative, resisted treatment and that appellant said he did not know what had happened, Dr. Holder did not comment on appellant’s claim of amnesia regarding events prior to and during the accident, which, appellant contends, may account for his irrational behavior and not as a result of the consumption of alcohol. Dr. Holder also testified that he had not seen appellant’s medical report regarding his injuries and the treatment afforded. Dr. Jorge Johnson testified that he could not say for certain that appellant had sustained amnesia, but it was possible. Moreover, Dr. Johnson stated that he had not examined appellant. Inasmuch as the State introduced evidence indicating that appellant was intoxicated at the time of the one-car accident, and appellant persisted in attributing his irrational behavior to amnesia, we are unable to state that the medical records offered by appellant were irrelevant. We believe that Nelson is not controlling. The State called Dr. Jorge Johnson as a witness who testified that he had treated Tina Randolph, a victim in the accident, and began relating in detail Tina’s dreadful condition and the treatment administered during the four days that she lived after being admitted to the hospital. Appellant’s counsel advised the court that if Dr. Johnson had been called to prove the death of Tina, appellant would concede that her death was caused from the injuries sustained in the accident. The State replied that it was going to prove that Tina “suffered damage that eventually led to her death as a result of the automobile accident.” Counsel for appellant responded, “consider it conceded.” The State continued tp question Dr. Johnson about Tina’s condition and the following exchange took place: MR. GALLMAN: Excuse me, Doctor. Your Honor, again I thought I had conceded this, what was trying to be proved by this witness. THE COURT: Well, you can’t control his production of testimony. MR. GALLMAN: I understand that. THE COURT: But whether you conceded or not, that’s fine, but he is entitled. It is relevant testimony to the charge here, so he is entitled to put it on if he wants to. MR. GALLMAN: It seems useless to me. MR. CLINGER: Thank you, Your Honor. Appellant argues that after appellant had admitted, in open court, that Tina’s death resulted from the injuries sustained in the accident, appellant was prejudiced by the State in narrating the horrid condition of Tina. While the evidence may have been relevánt, argues appellant, the court should have excluded this testimony because the unfair prejudice outweighed any probative value contained in the testimony. See: Rule 403 of Arkansas Uniform Rules of Evidence. We are persuaded that although the evidence sought from Dr. Johnson regarding the condition and treatment afforded Tina was relevant, it is plain that its probative value was substantially outweighed by the danger of unfair prejudice, possible confusion of the issues or misleading the jury to the detriment of appellant. While the decision to exclude such evidence is within the discretion of the trial court, we are unable to say that the action of the trial court was not an abuse of discretion. Moreover, it seems to be the universal rule that a defendant in a criminal case may waive his right to confrontation, cross examination and a requirement or duty on the part of the State to prove an element of charge pending against him; and that the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy. See: Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250; United States v. Goldstein; 532 F. 2d 1305. It is clear that Rule 403 of the Uniform Rules of Evidence was not only designed to exclude relevant evidence on grounds of prejudice, but a trial court in the interest of the efficient administration of criminal justice may exclude evidence, although relevant, where there is a needless presentation of cumulative evidence, upon considerations of undue delays and waste of time. In conclusion, we deem it sufficient to make the following observations with regard to appellant’s first three points for reversal: Relative to appellant’s first contention, we are unable to say that the trial court abused its discretion in permitting the jury to review the photographs showing the location of the bodies of the decedents. It seems clear that the photographs were vital in establishing the necessary ingredients of the offenses lodged against appellant. Regarding appellant’s second contention, we are persuaded that it was harmless error to permit Trooper Ferguson to relate his opinion about the speed of appellant’s vehicle inasmuch as there was other testimony regarding the speed of appellant’s vehicle prior to the occurrence of the accident. Regarding appellant’s third claim, we are convinced that the trial court did not abuse its discretion in denying appellant’s motion for continuance. It is clear that Dr. McNair was not served with a subpoena until the morning of the trial and appellant failed to inform Dr. McNair that the trial would be held in Bentonville and not in Fayetteville. Reversed and remanded. Wright, C.J., dissents.

Carleton Harris, Chief Justice. This is an appeal by Ray Holland from his conviction of the crime of assault with intent to kill. Holland was found guilty by the Washington County Circuit Court, sitting as a jury, and his punishment fixed at five years in the State Penitentiary. The court further ordered that pronouncement of three years of this five-year sentence be deferred upon the good behavior of the appellant. Six points are urged for reversal, but we can only consider one, the sufficiency of the evidence, since none of the other alleged errors were set out in the motion for new trial. We do not consider asserted errors not preserved in the motion for new trial. Hardin v. State, 225 Ark. 602, 284 S.W. 2d 111. The testimony reflects that appellant and his wife, Hazel, were divorced in October, 3967, the wife receiving custody of the minor son, 10 years of age. In March, 1968, Hazel married Kenneth Cecil Lawson, and the parties lived in Fayetteville. Mrs. Lawson testified that a restraining order had been issued against Holland, restraining him from coming about the Lawson home, but on the morning of October 10, 3968, around 9:30 or 10:00 A.M., she saw her ex-husband standing in the street, taking the license numbers of her automobile and her husband’s pickup truck. She inquired as to the reason for his presence, and he replied, “Go ahead and call the police.” Mrs. Lawson announced that that was exactly what she intended to do, and asked Holland what he was going to do, appellant replying, “A damned plenty.” Holland left, and Mrs. Lawson said that soon thereafter, her husband also left to take her car to the garage, something being wrong with the transmission. The witness stated that she, after thinking over Holland’s actions in taking the license numbers, left the house (in the pickup truck) for the purpose of going to police headquarters. However, she observed the Lawson automobile stopped on 15th Street, and also saw Ray Holland turning his car around, and coming back in her direction. She parked the pickup behind the Lawson automobile, and saw Mr. Lawson lying on the ground, “just as bloody as he could be all over.” .She did not see the encounter. Hershel Rogers testified that, on the morning of October 10, as he pulled out of Wal-Mart, and headed east on loth Street, he observed two cars stopping about 200 yards ahead. Upon getting closer, he saw the occupant of the front car, a 1959 Mercury, get out of his vehicle, and go around to the back car, a red Ford, the occupant of that automobile being in the act of getting out of his car, and the two went into a “clinch.” According to the witness, this occurred about at the opening of the Ford door on the driver’s side. The two automobiles were about 60 feet apart. Rogers stopped his automobile, and observed the fight. One man (Lawson) seemed to be getting the worst of the fight, and broke away. Rogers then observed that this man, who ran west from the scene about 200 feet, had bloody spots over his clothes. The witness left to call the officers. Grlenn Riggins, criminal investigator on the police force of Fayetteville, testified that a call was received about the occurrence, and officers started to the scene, but before arriving there, received a radio message that Holland was already at the station. They returned, and, according to Riggins, another officer, Richard Wells, advised Holland of his constitutional rights by reading from a waiver. Holland then admitted that he had cut Lawson with a knife, and a pocket knife was taken from appellant, which appeared to have blood stains on it. Kenneth Lawson testified, as follows: “I started out to see about my car and I seen his car in front of me. He pulled over and stopped and I stopped. I was going to ask him — now, I didn’t know Mr. Holland personally but I did recognize the car and the car had been following me on previous occasions. When I’d take the kids to school, when I’d be going to and from work, and I wanted to know'- why. I stopped to ask him why. I didn’t get a chance to say a word. He come out of his car and he said, ‘You son-of-a-bitch, you’ve caused me enough trouble. I’m going to kill you.’ Aud he come out with a knife.” The witness said that he liad no weapon of any sort, but was finally able to break away from appellant. He denied that he left his house to “go out after Holland.” Dr. John W. Vinzant, of Fayetteville, testified relative to the wounds received by Lawson, as follows: “The man had sustained several knife wounds and had a blood pressure at that time of around eighty systolic with shock. * * * He had seven stab wounds over the shoulder, the thorax above the belt. Two of these wounds were severe, the others were minor. One penetrated the thoracic cage on the left. * * * Out a rib in two, went through the diaphragm and lacerated the liver.” The doctor testified that the wounds indicated the application of considerable force; that the 'wound caused by the blow that cut the rib in two was 3 or 3% inches long, and approximately 2 inches deep. “It went clear through the thoracic wall.” The witness said all seven wounds required stitches to be closed, aud he stated that Lawson was in serious condition when he (Vinzant) saw him. The doctor testified that Lawson had a collapsed lung,” and remained in the hospital for nine days; further, that the liver was also cut, and Vinzant described a particular wound over the heart, which he found to be serious, as follows: “Directly over it [the heart] and into the thoracic cage. Again, the lung could have collapsed hut for some reason, it didn’t, on that side.” More specifically describing this wound, the witness said: ‘ ‘ This wound was approximately two and a half inches in length, it went laterally or in a circle around the body between the ribs. It went completely through the chest wall which would be about the same thickness as the other one, around two inches, and you could explore it with your fingers and touch the heart and lung.” Holland testified that he was copying the license numbers because he understood that one of the vehicles was registered in the name of Holland, and he was ‘ ‘ curious.” He said: “Well, Hazel came rushing out of the house there and commenced to throw one of her usual hissies. * * * ‘What are you doing out here bothering us ? Why don’t you go away and let us alone?’ * * * I just went on and let them alone. I had the numbers that I wanted.” Holland said that he knew someone was following him, and he was suspicious that it was Lawson; the car behind caught up with him at a stop light, and followed him “bumper to bumper” to where appellant stopped his automobile. The record reflects the following: “Well, I got out to see what was going on and he jumped out of his car and he was messing around there behind the door of his car. I thought he was coming out with a pipe or a tire tool. Q. Then what occurred? A. Well, T pulled my knife out and waded in on him.” He said they “came together,” and Lawson struck him, and “that’s when I went to work [meaning that he used his knife].” When asked if he held any ill will toward Lawson, lie said, “Not a thing only over unchildren. I want to see those children.” Appellant said that Lawson had no weapon, “but I thought he would have.” He stated that, if he had wanted to kill Lawson, he could have done so, but he was only interested in “getting him away from me.” Of course, the court, sitting as a jury, was the. fact-finder, and it apparently did not believe Holland acted in self-defense. In Davis v. Diate, 206 Ark. 726, 177 S.W. 2d 190, we said: “Although the state is required to prove that the defendant actually intended to kill, it need not depend upon declarations made by the defendant to establish such fact. While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may property consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to reveal defendant’s state of mind.” Certainly, there was substantial evidence to support the verdict. Holland was the first to stop his automobile, and he immediately pulled his knife, though the evidence clearly shows that Lawson was unarmed. Without making any effort to ascertain whether the prosecuting witness had any sort of weapon, appellant, according to his own words, “pulled my knife out and waded in on him.” The number of times appellant struck Lawson with the knife, and the severity of the wounds are clear indications that Holland had the intent to kill. In fact, it seems rather remarkable that Lawson did not die, having a rib cut in two, the diaphragm completely penetrated, a lacerated liver, a collapsed lung, and the knife going so completely through the chest wall that the doctor testified that the heart and lung could be touched by the finger. The evidence is more than ample to support the judgment. Affirmed. This waiver contained all of the so-called Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). Holland made a statement at the station, but the court did not admit it into evidence, as it was unsigned. The cloctor explained this as “the lung, into the lung cavity.” The reference “children” included the two daughters of Mrs. Lawson by an earlier marriage, these children having been adopted by appellant during his marriage to the present Mrs. Lawson. From the record: “Q. Then when you get down to the jail, you asked somebody, you said, ‘Is that bird dead yet?’ Some oí the police officers? Didn’t you? The Court: Did you say that? A. I don’t recall saying that in that particular way. Mr. Coxsey: Just a moment. Q. To Riggins and Hutchens, and this young man, Wells? I’ll ask you if you didn’t say this, or this in substance, ‘Is that bird dead yet?’ A. I don’t recall saying it in that — . Q. How did you say it? A. I really don’t recall the exact words. Q. The fact is that you expected him to die and you asked him if he wasn’t dead yet, and you said ‘That bird,’ now didn’t you, Ray? A. I am not going to^ admit to that, Ted, because I don’t think I said it. Q. Are you going to deny it? A. I can’t very well deny it but I am still not going to admit that I said it. Now, if Mr. Wells says I did, I’m not going to argue with him.”

M. Steele Hays, Judge. Appellant was charged by felony information with robbery and theft of property. On May 25, 1979, he was tried without a jury and convicted on both counts. He received a thirty year sentence on the charge of robbery and fifteen years on the charge of theft of property. He now brings this appeal. Appellant first contends that the trial court erred in allowing certain testimony of the State’s chief witness, Ms. Lillian Counts, on the basis that it was inadmissible as hearsay testimony. Specifically, he alleges that Ms. Counts’s testimony concerning an unidentified woman who entered the store while the robbery was in progress was inadmissible for the reason that there was no evidence in the record that related the woman to the robbery. Defense counsel objected to this testimony. The prosecutor attempted to show that the evidence implicated the unidentified woman as a coconspirator and was therefore admissible under Rule 801 (d) (2) (v) of the Uniform Rules of Evidence. The trial court allowed the statement as a present sense impression which is an exception to the hearsay rule under Rule 803 (1) of the Uniform Rules of Evidence. We believe that the evidence could have been allowed under either rule. It has been held that an accomplice’s statements made during the alleged crime are admissible as statements.of a coconspirator. Foxworth v. State, 263 Ark. 549, 566 S.W. 2d 151 (1978); Ark. Stat. Ann. § 28-1001, Rule 801 (2) (Repl. 1979). The proof of such conspiracy is a question which the court must decide from the facts of each case, and, if the evidence is sufficient, then all the acts and declarations of each conspirator made during the progress of the crime are admissible against a coconspirator. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972); Cantrell v. State, 117 Ark. 233, 174 S.W. 521 (1915). In this case, the evidence strongly implicated the unidentified woman.as a coconspirator. Ms. Counts stated that she came in while the robbery was in progress, reached over the counter while the robber was tying Ms. Counts’s hands, and took the money out of the cash register. We believe that this was prima facie evidence of the existence of a conspiracy and therefore hold that the trial judge properly overruled appellant’s objection. Appellant’s second point is that the evidence at trial was insufficient to support appellant’s conviction. Appellant alleges that the credibility of the witness is questionable due to the short time which she had to observe the robber and her testimony which stated that her assailant did not have a beard when, in fact, the appellant had a goatee at the time of the alleged incident. Hence, the appellant states that her positive identification of him as the robber is contradictory since the appellant did have a short beard at the time of the robbery. However, this question clearly addresses itself to the accuracy of identification of the defendant and the credibility of the witness which is solely within the province of the trier of fact. Gray v. State, 252 Ark. 404, 479 S.W. 2d 560 (1972); Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975). Hence, the trial judge’s decision is, accordingly, affirmed.

M. Steele Hays, Judge. This is a Workers’ Compensation case. The single issue presented is: whether a minor child of a deceased worker, whose death is the result of a work related injury, is entitled to the maximum compensation rate under the Worker's’ Compensation Act as a matter of law, or entitled only to the extent to which the minor child is actually dependent upon the deceased parent. The facts are not in dispute: James H. Moppin and Jo Ellen married in 1967 and had one child, Brad Moppin, aged six years. In February of 1976 they were divorced and child support of $108 per month was ordered in the decree. In July of 1976, James Moppin was killed, and a claim for benefits under the Workers’ Compensation Act was filed by Jo Ellen Moppin on behalf of Brad Moppin. The contention of claimant was that Brad Moppin was entitled to the maximum benefits ($77 per week) as a matter of law. Respondent contends that claimant was entitled to no more than $108 per month on behalf of her minor son, that being the amount of child support decreed in the Moppin divorce case. In the hearing below, claimant elected to stand on the contention of entitlement to the maximum benefits as a matter of law and offered no proof of dependency of the minor child. Respondent called Mrs. Moppin to the stand, and some information regarding her social security benefits, employment history, health, wage levels and earnings was provided. Mrs. Moppin testified that Mr. Moppin had, at different times, provided clothes, gifts, and some food and baby sitting in addition to the child support, and that he had given her money, paid medical expenses and had provided a horse to Brad and paid the expenses. By stipulation her 1975 & 1976 federal income tax returns were added to the record. Relying on the opinion of the Workers’ Compensation Commission in the case of Cole v. Roach Manufacturing Company, W.C.C. No. C607399, filed on September 18, 1978, the Administrative Law Judge held that as a matter of law the dependent minor was entitled to the maximum benefits under the Act. The Full Commission affirmed in an opinion filed on June 28,1979, and although it refrained from couching the award of maximum benefits “as a matter of law” that conclusion is inescapable for the reason that it affirmed the decision of Administrative Law Judge “in its entirety.” Respondent appeals to this court, alleging that the Commission erred in deciding that a minor child is dependent upon a deceased parent as a matter of law and not subject to the partial dependency provisions of the Workers’ Compensation Act. The dependency provision of the Act appears in Ark. Stat. Ann. § 81-1315. Prior to the adoption of Act 1227, Extended Session of 1976, the benefits were payable to persons “wholly dependent” upon the deceased employee. The statute reads as follows with the 1976 changes appearing in capital letters: (c) [Beneficiaries — Amounts.] Subject to the limitations as set out in Section 10 [§ 81-1310] of this Act, compensation for the death of an employer shall be paid to those persons who were wholly AND ACTUALLY dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference: First. The widow if there is no child, thirty-five per cent (35%), and such compensation shall be paid until her death or remarriage. PROVIDED, HOWEVER, THE WIDOW SHALL ESTABLISH, IN FACT, SOME DEPENDENCY UPON THE DECEASED EMPLOYEE BEFORE SHE WILL BE ENTITLED TO BENEFITS AS PROVIDED HEREIN. To the widower if there is no child, thirty-five per cent (35%), and such compensation shall be paid during the continuance of his incapacity or until remarriage. PROVIDED, HOWEVER, THE WIDOWER SHALL ESTABLISH, IN FACT, SOME DEPENDENCY UPON THE DECEASED EMPLOYEE BEFORE HE WILL BE ENTITLED TO BENEFITS AS PROVIDED HEREIN. Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen per cent (15%) on account of each child. Third. To one child, if there is no widow or widower, fifty per cent (50%). If more than one child and there is no widow or widower, fifteen per cent (15%) for each child, and in addition thereto, thirty-five per cent (35%) to the children as a class, to be divided equally among them. Appellee relies largely on two decisions dealing with the cited section of the Act: Holland Construction Company v. Sullivan, 220 Ark. 895 (1952) and Chicago Mill and Lumber Company v. Smith, 228 Ark. 876 (1958). These decisions support the point the appellee asks us to uphold. In Holland a claim for benefits was brought on behalf of a minor son of a deceased father, whose death occurred after the minor son had been legally adopted by other parents. The deceased worker had been contributing nothing whatever to the minor. The Commission held that the minor was not entitled to any compensation based on a finding of fact that actual dependency did not exist at the time of death and concluded as a matter of law legal dependency did not exist at the time of death. The Circuit Court reversed the Commission as to the question of dependency as a matter of law, leaving undisturbed the finding of fact regarding actual dependency. The circuit court’s award of compensation was affirmed by the Arkansas Supreme Court and, thus, compensation was allowed a minor child adopted by other persons, not actually dependent upon the decedent. It seems inescapable that had the partial dependency section been applied to this factual situation the result would have been a determination of entitlement as a matter of law, but with the result that nothing was actually due under the language of the partial dependency provision. In Chicago Mill and Lumber Company v. Smith, supra, a somewhat similar result was reached in that the decedent was contributing nothing to his widow, minor step child, minor natural child (by a previous marriage) and minor il legitimate child. Compensation was awarded to the three children by the Commission but not to the widow on the theory that she was not actually dependent. The Circuit Court affirmed. The employer appealed the allowance to the children, and the widow cross-appealed the denial of benefits to her. The Arkansas Supreme Court held that the widow as well as the children were entitled to compensation and affirmed as to the children and reversed as to the widow, saying: It would be possible to construe this provision of the Act [81-1315(c)] as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of his family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the legislature used the term “wholly dependent” in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children. Hence, in the Chicago Mill case, as in the Holland case, minor children who were neither wholly nor actually dependent upon a deceased parent were held entitled to compensation, and clearly the benefits to which they were found to be entitled could not have come under the partial dependency provision, for the reasons stated. This leads us to a consideration of the case of Roach Manufacturing Company v. Cole, 265 Ark. 607 (1979), on which the appellant must find footing for the position that the partial dependency provision applies. We agree with appellant that under the language employed in the Roach case [and, for that matter, in a number of decisions by way of dictum prior to Roach: Kelley v. Southern Pulpwood Company, 239 Ark. 1074 (1965); Sherwin-Williams Company v. Yeager, 219 Ark. 20 (1951); Smith v. Farm Service Cooperative, 244 Ark. 119 (1968)], dependency is a question of fact rather than of law. Nor is it simply a matter of semantics, for appellant argues that the issue is one of fact, and it follows that the partial dependency provision of the Act, supra, applies. If there is support for this argument, it must be found in the Roach decision, for, as we have stated, the rule prior to Roach was clearly contrary to what appellant argues. (See: Holland, supra and Chicago Mills, supra.) But the issue can not be resolved that simply, for the reason that Roach does not provide the answer. In Roach, while the court clearly states the issue of dependency to be one offact, the holding of the case itself affirms the Commission’s award of maximum benefit to a dependent minor who was receiving nothing from the deceased parent — it did so on a finding that there was substantial evidence to support the Commission’s award of maximum benefits to the minor child, who was found to be “wholly and actually” dependent upon the decedent. Thus, in the case before us, a much stronger argument for “actual dependency” exists, inasmuch as the decedént was contributing at least $108 per month under the decree of divorce plus whatever value might be placed upon the additional contributions he was making. Appellant’s argument has the force of logic, as it would seem the reasoning in Roach leaves it irrefutable that the partial dependency provision must apply whenever a dependent is not totally supported by the deceased parent. But to reach this result would mean doing two things: (1) giving greater effect to the Roach decision than it gave its own result, and (2) concluding that the legislature, by adding the words “and actually,” intended to alter the interpretation of § 81-1315 (c) as to minor dependents, that has prevailed since the inception of the Act, and thereby make a distinction between minor dependents residing with their parents as opposed to those who were not. This would read into the wording of Act 1227 an intent to place minor dependents not residing with the decedent under partial dependency provision. If that were the case, a very drastic change would come about, at least potentially, because the modest amount now provided under § 81-1315 (c), would be lessened substantially. The case before us provides the illustration: under § 81-1315 (c), Brad Moppin, would receive $77 per week, but under the partial dependency section, he would receive (we can only estimate as there are no findings in the record) something approximating one fourth of that amount. The impact of this result on dependent children of deceased workers who are either divorced or merely separated at time of death is such that we are not willing for that end to come about simply by taking what might be said to be the logical followrthrough of the Roach decision, particularly where we think that such a result is clearly not supported by either the legislative intent behind Act 1227 or consistent with the result as reached in the Roach decision. We think it is entirely conceivable that in certain instances a minor child, whether residing with the parent or elsewhere, may have independent resources and therefore capable of being non-dependent upon a deceased parent for purposes of Workers’ Compensation benefits, and it follows, therefore, that we may depart from the dependency as a matter of law standard and award compensation where the expectation and the need are real or “actual’ ’. It is said to be the “great weight of authority” that dependency is a question offact as opposed to a question of law. Wilson v. Hill, 71 A. 2d 425 (Del. 1950); Koepel v. E. I. Du Pont de Nemours and Company, 183 A. 516. It is clear that the court in Roach interpreted the language of Act 1227 as reflecting an intent by the legislature to require evidence of actual dependency by both a widow and a minor child, citing Williams v. Edmondson, 257 Ark. 837 (1975). But the court also made an important distinction as between the two (where neither was receiving any actual support) and that distinction is that a minor child continues to have an expectancy of future support which the court found lacking as respects the widow. The eiid resultis this: in Roach, a minor child who was receiving no actual support at the time of injury was awarded maximum benefits under § 81-1315 (c) bécause of her expectancy of future support; in the light of that interpretation we are unwilling to say that a minor actually dependent and receiving support from the decedent is entitled to less than the benefits provided in § 81-1315 (c). Any other result would not be in keeping with the libera] and benevolent spirit of the Workers’ Compensation Act. Triebsch v. Athletic Mining and Smelting Company, 218 Ark. 379 (1951); Batesville White Lime Company v. Bell, 212 Ark. 23 (1947). We conclude that the decision of the Commission af firming the Administrative Law Judge’s finding that the minor child of James H. Moppin should be affirmed, but such decision is modified by eliminating the words “as a matter of law”, the award being on the basis of substantial evidence that Brad Moppin was actually dependent upon the decedent at the time of death. Affirmed as modified.

Smith, J. W. H. Young owned at tlie time of Ms death in 1936 a farm consisting of 552 acres. He had executed a note to ■ C. C. Harris in the sum of $552, which at the time of his death was owned by E. B. Brotherton. Charles Rowland qualified as administrator of Young’s estate, and this suit was brought against him in that capacity on the note. The widow and heirs at law of Young were made parties, and as to them it was prayed that certain deeds executed by Young to his wife and their children be declared void as having been executed to defraud Young’s creditors. The relief prayed was granted, and from that decree is this appeal-. The statute of non-claim was pleaded, it being alleged and insisted that the note was not presented to the administrator in the time and manner provided by law. Attached to the complaint, as axi exhibit thereto, was a copy of the note with the statutory affidavit of Brotherton attached thereto, 'but no affidavit of the assignor, C. C. Harris, was attached. Testimony was offered to the effect that Brotherton filed, on October 27, 1936, a petition in the probate .court of Boone county, wherein testator resided, praying the appointment of. an administrator of the estate of Young, and Brotherton at the same time verified his demand as required by law. For some reason letters of administration were not actually issued until December 1,1936, The affidavit of Harris, the assignor, was also exhibited to the administrator. The administrator, in his answer, admitted that the note, duly verified by both the assignor and assignee, as required by § 104, Pope’s Digest, had been presented to him, and Ms attorney made the admission in open court upon the trial of the cause that this had been done before the commencement of this suit in January, 1937. There is no testimony in the record to show that the fact thus admitted was untrue. The court was, therefore, fully warranted in finding that the statute of non-claim did not apply. The decree of the court below adjudged that the deeds from Young and wife to their cMldren were void, not only as to the creditors of Young, but for all or any purposes. We think the decree was. too broad in this re spect, in any event, and that the court should have set the deeds aside only for the purpose of paying intestate’s debts, and there appears to be now no debt except the note due Brotherton. The value of the land so greatly exceeds the judgment, which was for $1,190.85, that the heirs may prefer to pay this judgment and preserve the partition of their father’s estate which he made by deeds to his children. The decree will be modified in this respect to permit them to do so, if they wish. It is earnestly insisted, however, that it was error to set the deeds aside for any purpose, for the reason that Young was solvent both before and after the execution of the conveyances to his children, and that they paid the fair value of the lands, and this contention presents the serious and real question in the case. It appears that on June 10,1931, Young and his wife executed their two notes to the Citizens Bank & Trust Company and the Citizens Investment Company for $2,-285.95 and $1,428.86, respectively, to secure the payment of which they executed a real estate mortgage on the 552 acres of land owned by Young and a chattel mortgage on 87 head of cattle which he also owned. Soon after the execution of these notes and mortgages, a family conference was held in which it was decided that Young should divide his lands and convey them to his children, and that the children should thereafter support him and his wife. Young was then about 75 years old. Before executing these deeds Young filed a suit to cancel the mortgages which he had given. This suit was compromised by the payment of the sum of $2,-100 to the holders of the notes. The money with which this payment was made appears to have been derived from the sale of cattle which Young owned. The testimony is uncertain as to the number of cattle not sold and as to their disposition. The administrator had no assets in his hands with which to pay the note here sued on, and this suit - wa« filed December 24, 1936, to cancel the deeds of conveyance made by Young to his children. In the answer filed by them they alleged the solvency of their father at the time of the execution of the deeds, and that they had paid full value for the lands 'by assuming tlio obligation to pay the mortgage on them, and by agreeing to take care of tbeir parents. It is insisted — and we think properly so — that, in determining the value of the land conveyed to the children, the value should be determined as of the date of those deeds, and that the value of the homestead should be taken into account. It was said, in the case of First State Bank v. Gilchrist, 190 Ark. 356, 79 S. W. 2d 281, that, in determining the adequacy of the consideration of a deed alleged to be fraudulent, whereof a part was the debtor’s homestead, that part must be deducted from the total area. But, even so, it was not shown that the average value of the homestead was greater than the average value per acre of the remainder of the land. There were 552 acres of the land, and no one placed its value at the time the deeds were made at less than $10 per acre. Now, there was a debt for the amounts above stated which was secured by mortgages on both the land and the cattle, but the children paid but little to discharge these mortgages, although they assumed their payment. It was paid by‘the sale of cattle which Young himself owned. No one attempted to account for the cattle not. sold, although it was shown that none of them were ever delivered to the administrator, and they never became assets to pay the intestate’s debts. ' It appears, therefore, that the children received lands worth not less than $5,520.00, and probably much more, for which they paid nothing except the value of the services rendered their father, including’ expenses of his last illness. Certain of the children claim to have made advances which were used in the discharge of the mortgage debt, but they do not account for the cattle which were of a greater value than the sum paid in satisfaction of the mortgages. A son-in-law who lived in Missouri testified that he loaned and advanced to the heirs the sum of $1,348.50, but he made no attempt to show how much of this was used in paying the mortgages. His wife, one of the heirs, testified' that she agreed that she would advance $350, and thus discharge her proportionate share of the mortgages. It is fairly inferable that the children got the cattle which were not sold to pay the mortgages, and it is certain that the cattle were never delivered to the administrator. The testimony shows various attentions to Young by his children, although he was never taken into the .home of any one of them. He was bedfast during the last three months of his life, during which time two of his children attended him. A doctor who attended Young estimated the value of those services at $2.50 per day for each attendant, and his own bill was only $230. Other doctors appear to have attended Young, but the amount of their bills was not shown. After allowing credit for all expenditures claimed to have been paid by way of payment for the lands or in consideration of their conveyance, too great a difference exists between payments made and the value of the land conveyed to overturn the chancellor’s finding that fair value was not paid, and we find the fact to be that the value of all credits which may be treated as a part of the consideration for the deeds bears no fair relation to the value of the property conveyed. Even though it were conceded that Young was solvent when he made the deeds, there can be no doubt that these conveyances rendered him insolvent, and, this being true, the chancellor’s finding that the' deeds were made in fraud of creditors must be upheld. It does not appear that any of the children paid Young himself any sum of money which was used by him in discharging the mortgages against his real estate and personal property; but this would not have been of controlling importance had they done so. In the case of Simon v. Reynolds-Davis Grocery Co., 108 Ark. 164, 156 S. W. 1015, Simon, an embarrassed debtor, sold all his lands, except his homestead, to his sons for an amount considerably less than the value of the lands conveyed.. In holding that this was a strong 'badge of fraud, the court said: “It matters not that Phil Simon used the whole or a part of the proceeds of the sale, in payment on his debts, for he was unable to pay his debts and was insolvent, and the fact that the conveyance was made to his sons under such circum stances would warrant the conclusion that he was making the conveyance in order to put the property in the hands of his children, and to give them the benefit of the difference between the price paid by them and the real value of the land. ’ ’ Continuing it was there said: ‘ ‘ This court has often held that ‘ conveyances made to members of the household and near relatives of any embarrassed debtor are looked upon with suspicion and scrutinized with care, and when they are voluntary, they are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.’ [Citing cases.! To the extent that the price paid was less than the value of the land, the conveyance, so far as creditors are concerned, must be held to be voluntary and without consideration. ’ ’ Here, if all credits were allowed which the heirs have any- reasonable right to claim as the price paid by them for the land, the total amount thereof is far less than the value of the land, the difference being much more than the sum for which judgment was rendered against the estate. To this extent, at least, as was said in the Simon case, supra, the conveyance must be held to be voluntary and without consideration. The court below found there were no assets in the hands of the administrator with which to pay the indebtedness adjudged to be due, and that it was necessary to sell the real estate of the deceased to pay the judgment rendered. It was ordered, however, that the widow might claim her right of homestead (and this she may, of course, do), and that the remainder be sold if the judgment be not paid. The decree of the court below will be modified, in the particular herein indicated, and will be remanded for that purpose.

James H. Pilkinton, Judge. This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals. Rule 29(3) Ark. Supreme Court. On Sunday, January 16, 1977, the defendant, Blackhawk Warehousing & Leasing Company, was storing goods and merchandise consisting of agricultural chemicals owned by the plaintiff, U.S. Borax, in accordance with the warehousing contract between the two parties. At sometime between 4:30 p.m. January 16, 1977 and 7:00 a.m. January 17, 1977, goods and merchandise belonging to the plaintiff consisting of eight pallet loads of Cobex (288 five gallon cans), were stolen from the defendant’s premises. The warehouse is a large metal building. The burglars entered the building by ripping open one of the side panels. Then chemicals which had been stored next to the wall were pulled outside to allow entry into the building. After entry a padlock and chain were cut to allow a door to be opened. A forklift truck was “hot wired” since it was locked. Then it was used by burglars to move a sailboat blocking the path to appellant’s stored chemicals. Other chemicals in the way were shoved aside, and the cans of appellant’s stored chemicals were taken from the premises. The loss sustained by the plaintiff amounted to $23,658.28 and suit was brought for that amount. At the trial the defendant was granted a directed verdict at the close of the plaintiff’s case. This appeal followed claiming as one point that the court erred in directing a verdict. The Uniform Commercial Code sets out the duty of care required of a warehouseman. Duty of care — Contractual limitations of warehouseman’s liability. — (1) A warehouseman is liable for damages for loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care. Ark. Stat. Ann. 85-7-204. A warehouseman is required to exercise due care or a reasonable degree of prudence for the protection and preservation of goods stored with him and is liable for a loss or injury for a failure to exercise such care. It is well settled law in Arkansas that a motion for directed verdict should be denied unless the testimony, when viewed in the light most favorable to the plaintiff, presents no issue for the jury with respect to the defendant’s liability. The issues in a negligence case where the standard of care is that of a reasonably careful person are peculiarly appropriate for determination by the jury. Bergetz v. Repka, 244 Ark. 60, 424 S.W. 2d 367 (1968). The court in St. Louis & San Francisco Railroad Co. v. Rie, 110 Ark. 495, 163 S.W. 149 (1913) stated: It is true, there is no dispute about the material facts in the case, but in such cases it is only where all reasonable minds must draw the same conclusion from the evidence that the question is one of law for the Court. The rule is that where there is room for an honest difference of opinion among intelligent men as to whether the conduct of the defendant was that of an ordinarily prudent person, in view of all the facts and circumstances surrounding him, the question of negligence is one for the jury, although the facts are undisputed. Doniphan Lumber Co. v. Henderson, 100 Ark. 53, 139 S.W. 649 (1911) also says that where there is an uncertainty as to the existence of negligence in the case it is a question of fact and must be settled by the jury whether the uncertainty arises as a conflict in the testimony or because the facts in the case are undisputed and fair minded men might draw different conclusions from them. The Arkansas Supreme Court has consistently held that questions of negligence are for the jury and that the court should not direct a verdict for the defendant where there is any question of negligence on the defendant’s part. The evidence must be viewed in the most favorable light for appellant, and when given its strongest probative force in her favor, we are of the opinion that reasonable minds might reach different conclusions on the question as to whether or not the injury to appellant was caused by the negligence of the appellee, as alleged in her complaint. It was therefore a question of fact for the jury to determine. Robinson v. Little Rock Railway & Electric Co., 113 Ark. 227, 168 S.W. 1125 (1914). See also Ragland v. Snotzmeier, 186 Ark. 778, 55 S.W. 2d 923 (1933); Palmer v. Dillard, 224 Ark. 155, 272 S.W. 2d 66 (1954); Missouri Pacific Railroad Co. v. Harelson, 238 Ark. 452, 382 S.W. 2d 900 (1964); St. Louis Iron Mountain & Southern Railway Co. v. Hitt, 76 Ark. 224, 88 S.W. 911 (1905); Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919 (1969); Gookin v. Locke, 240 Ark. 1005, 405 S.W. 2d 256 (1966). Plaintiff alleged the loss sustained was the proximate result of defendant’s negligence in storing and keeping goods and merchandise without the proper security measures appropriate to the situation. Specifically it was alleged that defendant was negligent in not providing proper security measures in the following particulars: (a) In failing to provide watchmen inside the facility; (b) In failing to have any burglar alarms or similar systems installed in the warehouse; (c) In failing to provide roving patrols outside of the building; (d) In failing to place palletized storage directly against the inside wall at the point of access as was done against other walls to prohibit any attempt to enter from the outside; (e) In failing to provide other adequate security measures which would have prevented the break-in and subsequent loss to the plaintiff; (f) In failing to be put on notice that extra security measures were needed after a previous break-in occurred at the warehouse approximately 7 months before the loss was sustained by the plaintiff. It was also alleged that since the break-in, Blackhawk has realized the security was inadequate and has taken measures to make the facility more secure by hiring guards to patrol both inside and outside the building. Negligence has been defined as: The failure to do something which a person of ordinary prudence would do under the circumstances, or the doing of something that a person of ordinary prudence would not do under the circumstances. Self v. Kirkpatrick, 194 Ark. 1014, 110 S.W. 2d 13 (1937). The court in that case went on to say that if there is any substantial evidence tending to show negligence the question is for the jury. A review of the evidence shows the following facts were established. It was admitted that two hundred eighty-eight (288) loose 5 gallon cans of Cobex manufactured by plaintiff stored in defendant’s warehouse near Helena, Arkansas, were stolen by a person or persons unknown. Entry was gained by removing or bending back the steel sheet on the east side of the building near where the fire extinguisher was located. Several 50 pound bags of a different chemical were pulled outside in order for someone to get through to the inside of the building. A padlock and chain on the east end overhead door of the warehouse were cut to allow the door to be opened and the material to be removed. A sailboat which was parked in the aisle in front of the door was pulled aside by the use of defendant’s forklift truck which was inside the warehouse. The wiring of the forklift truck was tampered with in order to use this machine. It was locked and the key had been removed and placed in the office. Several pallets of empty packaging material surrounding the Cobex were knocked over blocking the aisle and causing the forklift to be blocked in. It appeared that the Cobex was loaded onto a truck by hand since all of the pallets and pallet caps were left inside of the building. The nine following things were proven by the appellant. Palletized storage was not placed directly against the inside wall at the point at which the intruder gained access at the time of the theft. A similar break-in occurred at the facility approximately 7 months before the loss suffered by the plaintiff and after that break-in no burglar alarms, roving patrols, watchdogs or watchmen were added as security measures. Burglar alarms have been installed and a security service has been hired to make nightly rounds and check the outside of the building since the occurrence of the theft and loss suffered by the plaintiff. There are customary security standards in this area for agricultural chemicals and those security standards vary with the different type of goods warehoused. The value of the products and the ability to sell the products quickly must be taken into consideration in arriving at these standards. The theft risk classification given to Cobex in this area is very high. It took approximately 80 minutes to 2 hours (man hours) to load the 288 cans of Cobex onto a truck parked a minimum distance of 20 feet from the stacked Cobex. At the time of the theft, U.S. Borax had 26,184 five gallon cans of Cobex stored at Blackhawk Warehousing & Leasing Company and the total value of the Cobex stored at that time was $2,500,000.00. It was stipulated the value of the Cobex taken in theft was $23,658.28. Some storage was placed against the walls to prevent the building sheets from being removed and the material taken. In so doing, palletized storage was placed against all walls but only to a point approximately 2 feet wide under a fire extinguisher. Fifty pound bags of granular material were placed several high against the wall. Appellee says that the arrangement was designed so that it would not block access to the fire extinguishers. An attempt was made to remove sheets several feet down the wall from the actual point of entry, but palletiz-ed material blocked entry at that point. After the break-in and loss in question additional measures were added. An ADMECO Burglar Alarm system was installed, and security service hired to make nightly rounds to check outside the buildings. The evidence introduced to establish the alleged negligence of Blackhawk Warehousing is substantial and sufficient to make a case for the jury. This is especially true when the evidence is considered in the light most favorable to the plaintiff. The court seems to base the directed verdict on the fact that Donald Serens, who was called as an expert on customs in the warehousing industry by the plaintiff, testified that each individual warehouseman must make the decision as to what security methods to use. It is well settled law in Arkansas that the value and weight of expert testimony is for the jury to determine. Even where there is no conflicting testimony to contradict the expert’s opinion the jury must decide the ultimate issue. . . . Were it conceded that all the expert testimony offered by both parties was in full accord and agreement and not contradicted by any other expert evidence, yet the jury would not be bound by such testimony ... ‘Even if several competent experts concur in their opinion, and no opposing expert evidence is offered, the jury are still bound to decide the issue upon their own fair judgment.’ Arkansas Power & Light Co. v. Pollen, 199 Ark. 566, 134 S.W. 2d 585 (1939). . . . ‘but the jury are the judges of the weight to be attached to their opinion ... It is for the jury to determine what value his opinion is entitled to under the circumstances, and to give it such weight as they think it deserves. ’ It is evident from the previous decisions of this Court that it is the exclusive province of the jury to determine the value and weight to be given the testimony of expert witnesses, and the jury is authorized to believe or disbelieve the whole or any part of such expert witnesses’ testimony. Home Indemnity Co. of New York v. Jelks, 187 Ark. 370, 59 S.W. 2d 1028 (1933). Expert witnesses are not called upon to decide disputed questions of fact but only to give opinions upon matters upon which their opinions are sought that the jury may determine the question. St. Louis Iron Mountain & Southern Railway Company v. Williams, 108 Ark. 387, 158 S.W. 494 (1913). The expert said that there were customary security standards in this area for agricultural chemicals and those standards varied with the different types of warehoused goods and the consideration used in determining what standards should be used were the value of the products and the ability to resell the products. The expert witness also testified Cobex had a high theft risk and that fact should be taken into consideration in determining what safety measures were to be used by the warehouseman. Jonesboro Compress Company v. Hall, 178 Ark. 753, 13 S.W. 2d 298 (1929) is an Arkansas case similar to the one at bar. In that case, complaints were filed by 56 plaintiffs against the Jonesboro Compress Company to recover the value of certain cotton stored by the plaintiffs in the warehouse of the defendant. The cotton was destroyed by fire and the court held the only ground of alleged negligence upon which there was enough testimony to go to the jury was that of the failure by the compress company to keep a watchman on the premises during the noon hour. In the case at bar, not only was there an allegation made that there was no watchman, or other security measures such as alarms, roving guards, or dogs employed at the time of the theft, but such matters were admitted by the defendant in its answers to the interrogatories read into evidence. The case is similar to the one at bar as in the Jonesboro Compress case there was expert testimony offered as to the custom in the industry to employ watchmen at times when the compress was not in operation. The undisputed testimony was that it was not customary to employ watchmen when the compress was not being operated. There was no evidence other than that offered by the defendant that it was not customary to keep watchmen at compresses during the time they were not being operated. In discussing this undisputed testimony, the court said: Such testimony is admitted not for the purpose of permitting persons engaged in the kind of business out of which the damage arose to artificially, and without the supervision of the Courts, determine what does or does not constitute negligence, but is admitted as bearing upon the degree of care which an ordinarily prudent person would use under the circumstances of this particular case. The court went on to hold that this was a jury question. After careful consideration of the testimony, we are unwilling to say, as a matter of law, that the failure of the defendant to keep a watchman at the compress during the noon hour was not negligence, although this was not the custom of other compresses. The jury may have concluded that the fire hazard required the presence of a watchman at the Jonesboro compress. (Emphasis added). The court also said the testimony showed cotton was one of the most inflammable substances and the care employed should have been commensurate to the attending danger. The court stated that a watchman employed for the purpose would have known the portions of the compress which were open and exposed to danger and might have discovered the presence of the fire and reported or given a fire alarm sooner than was done. This is somewhat analogous to the situation at hand. Here the testimony showed that Cobex is a high theft risk item and the jury might have found, regardless of the custom in the industry, had a watchman been present or roving patrols been on duty or watchdogs or burglar alarms employed at the time of the theft, the watchman could have apprehended the thieves, stopped the burglary, or an alarm could have notified law enforcement officials who could háve reacted promptly, therefore completely thwarting the efforts of the thieves. We hold that the trial court should have let the matter go to the jury for a jury determination as to whether appellee acted negligently in not providing certain safety measures in light of all of the circumstances shown by the evidence. Since the case must be reversed for a new trial, little need be said about appellant’s other point. It claims that the court erred in not allowing the expert witness to answer a question which went to the ultimate issue of the case. Since this same problem could arise on retrial, we call attention to The Uniform Rules of Evidence, Rule 704 (Ark. Stat. Ann. 28-1001), which states: Opinion on ultimate issue — Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Hawkins v. Missouri Pacific Railroad Company, 188 F. 2d 348 (8th Cir. 1951) states: To permit an expert to state an opinion in a technical field, which the Trial Court feels may be of assistance to the jury, is not an invasion of province of jury, merely because the opinion has relation to some ultimate fact on which the verdict of the jury may depend. Cropper v. Titanium Pigment Co., 8 Cir. 47 F. 2d 1038, 1043, 78 A.L.R. 737. Experts in Arkansas have been allowed to testify as to the standard of care in other type cases. In McClellan v. French, 246 Ark. 728, 439 S.W. 2d 813 (1969), the Court held an expert could testify as to the standard medical procedures in the community even though this was the ultimate issue to be decided by the jury. Reversed. Appellee contends, accurately, that the wording of the provisions in the Employer’s Mutual policy is different from the wording of the parallel provision in its policy, but the essence of the two provisions is the same.

Lyle Brown, Justice. The plaintiffs below (appellees here) were Eosamond and Hillman Carpenter, brothers who as partners farmed lands belonging’ to the other plaintiff, Nelson W. Bunker III. Plaintiffs sued Walcott & Steele, Inc., seed dealers, alleging loss of a substantial portion of their cotton crop produced from certified cottonseed sold Carpenter Brothers by Walcott & Steele. Judgment was awarded on the theory of violation of express warranty of the seed. Walcott & Steele appeals. Carpenter Brothers have a farming operation adjacent to the town of Lake Village. They rent several acres from Bunker Farms, paying the landlord one-fourth of the crops, mostly cotton and soybeans. In February 1966, Carpenter Brothers purchased cottonseed from Walcott & Steele, Inc., of Greenville, Mississippi. The order was for sixty bags, fifty pounds each, of Stoneville 213 seed. Evidence for the brothers was to the effect that the seed was delivered by truck and placed in dry quarters in a storage barn; that the seed was planted under normal conditions; that much of it failed to germinate; and that replanting failed to produce the desired results. Thereupon agents of the State Plant Board were called upon to test seed gathered from one of four sacks left over. The analysis showed germination to be 27.75%. To each of the sixty bags delivered was attached a tag showing germination to be eighty per cent. The State Plant Board regulations required the percentage of germination to be placed on the tags. The local agent for the Agricultural Stabilization and Conservation Service produced the acreage records covering Carpented Brothers’ 1966 operations. Those records showed a total of 176.2 planted acres which failed to produce. Evidence from the gin records showed that in 1965 the Carpenters ginned 1231 pounds per acre, whereas in 1966 the ginning dropped to 662 pounds average per acre. The jury awarded damages of $5,718, to be divided between Carpenter Brothers and Bunker Farms, the landlord. A credit of $176.25 was allowed Walcott & Steele for balance owed on account. The facts to be evaluated in determining tlie nature of the warranty are important. Rosamond Carpenter testified that "Walcott & Steele’s salesman came by Rosamond's home. They had transacted business the year previous. Rosamond said he placed an order for sixty bags of Stoneville 213 cottonseed. (The meaning of “Stoneville 213” is not explained.) That was the sum total of tlie conversation gleaned from the record. Now as to the. origin of this shipment of Stoneville 213. The seeds were grown by H. K. Hammett & Sons of Green-ville, Mississippi. Hammett operates under the supervision and inspection of the Mississippi Seed Improvement Association, the official certifying agency for that State. Hammett gins the cotton, cleans and otherwise processes its seed. Each lot of seed is given a number and they are said to be kept separated, one lot from the other. Field men for Mississippi Seed Improvement Association inspect each lot. If it is approved then that agency issues a green certification tag for each fifty pounds in the approved lot. The tag shows the date tested, percentages of germination, hard seed, purity, crop seed, inert, weed seed, and noxious weeds. Walcott & Steele picks up seed from Hammett in Walcott’s trucks and in bulk. Before bagging in its own trade bags, Walcott puts the seed through another processing. That includes removing any lint, by neutralizing the lint with a soda solution, cleaning out any trash, removing immature seed, and disinfecting the seed. Thereupon, a processing report is sent to Mississippi Seed Improvement Association. On the basis of both tlie reports from Hammett and Walcott, the green certification tags are released to Walcott and one is by Walcott affixed to each bag. The tag has a certification over the printed signature of Mississippi Seed Improvement Association. Walcott invoiced the seed to Carpenter Brothers under the following description: “60, 50# bags Hi-Vigor Stoneville 213, Demosan treatment. ’ ’ At the bottom of the invoice was this wording: NON-WARRANTY: WALCOTT & STEELE, Inc. Give no Warranty, Express or Implied. As To Description, Productiveness, or Any Other Matter of Any Seeds That We Sell and We Will Not in any Way Be Responsible for the Crop. Our liability in all Instances Is Limited to the Purchase Price of the Seed. NOTICE: All claims for credit must be made within 10 days or will not be allowed. Excepting those words shown in caps, the print can be easily classified as fine print. Mr. Carpenter said the deliveryman gave him a copy of the invoice which he signed and returned. He said he did not read it. Each bag is tri-colored, red and black on white. Among other things wc find this wording from viewing a color print of one of the bags: “Mississippi Certified. HI-VIGOR SEED; GRADED; TREATED; SOLD BY WALCOTT & STEELE, INC.” Hillman Carpenter testified that it is generally understood in that farming community that seed has to liave eighty per cent germination. ITe said he would not have kept the seed if the tags, which he examined, had not shown the desired eighty per cent. Rosemond Carpenter testified they had purchased the same type seed from Walcott the year before and had a very good experience. Based on the enumerated evidence, was the trial court warranted in telling the jury that as a matter of law Walcott sold the seed under an express warranty1? The court took the position that the germination certification on the green tag constituted the warranty and so informed the jury. For resolution of the question we look to Ark. Stat. Ann. §85-2-313 (Add. 1961). That section defines express warranties and there we find this definition: “(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. ’ ’ Walcott & Steele knew it conld not sell cottonseed for planting in the State of Arkansas unless each bag contained a label showing the true percentage of germination. See Regulations on the Sale of Planting Seed in Arkansas, Sec. 2 (B), which was introduced in evidence without objection. In other words, that provision was certainly a part of the law with which Walcott was expected to comply when if took the order. It would be absurd to say that the Carpenters were required to expressly state to Walcott that the germination percentage “must be truly and correctly given on the permit tag” in order to make it a part of the basis of the bargain. The law itself made it a part of the bargain. We find only one precedent which may be said to be in point. Mallery v. Northfield Seed Co., 264 N.W. 573 (Minn. 1936). Mallery ordered alfalfa seed for sowing on his farm. The crop failed allegedly because of seed impurity. The warranty relied on for damages was the tags on the bags of seed which were placed there in conformity with statutory requirement. The Court there held that the representation on the label constituted an express warranty. We hold as a matter of law that the certification warrants the contents of the bag to be as stated thereon, within reasonable and recognized tolerances, and that it is a warranty made by that vendor who causes the certification to be attached. That warrantjr is of course subject to the time limit expressed by the regulations. We are not unmindful of the fact that Smith v. Tatum, 198 Ark. 802, 131 S.W. 2d 619 (1939), gave scant significance to what the Court called a “mistake” on the part of the plant board. Since that decision the plant board regulations of 1956, from which we have quoted, became effective. Also the IIOC was adopted in 1961, The court struck from defendant’s pleading the defense of non-warranty based on the non-warranty clause appearing at the bottom of the invoice. The court was correct. There was an express warranty and Walcott was attempting to modify it by “unbargained language of disclaimer” which was inconsistent with the express warranty. To that extent it was unreasonable. Ark. Stat. Ann. § 85-2-316(1) (Add. 1961). Now to the next point. At the beginning of the trial all witnesses were excluded from the courtroom at the request of both parties. In the afternoon of the first day of trial, a rebuttal witness for the plaintiffs came into the courtroom and stayed over an hour. It appears that he left when Mr. Bunker told him he was not supposed to be in the courtroom. It is not shown that this witness, Alvin Ford, heard any testimony touching on the subject matter of his rebuttal. Trial courts have considerable discretion “in managing and controlling the proceedings at the trial,” and that includes control over the witnesses. Arkansas Motor Coaches v. Williams, 196 Ark. 48, 116 S.W. 2d 585 (1938). The court’s action created no prejudicial error and we cannot say he abused his discretion. Appellant next challenges the court’s instruction seven: You are instructed that if you find from a preponderance of the evidence that the cottonseed sold by the Defendant, Walcott and Steele, Ine., did not substantially conform to the certification tag and certification of germination thereon, and you find that the failure of these seeds to substantially germinate was the proximate cause of damage to tin Plaintiffs, Carpenter Brothers and Bunker Farms. Inc., then you will find for the Plaintiffs, Rosamond Carpenter and Hillman Carpenter, d/b/a Carpenter Brothers, and against the Defendant, Walcott and Steele, Inc., and fix the Plaintiffs’ damages in a sum hereinafter as instructed by the Court. Walcott contends the instruction is erroneous because it did not direct the jury that it must first find the cottonseed was actually sold by appellants. The court was entitled to have that specific objection called to its attention before the instruction was given, which was not done. Nor do we consider it inherently erroneous because it was admitted Walcott shipped sixty bags of Stoneville 213 and the jury certainly knew it was that particular shipment which was the basis of the lawsuit. The particular lot of seed from which the shipment originated was secondary. Appellant challenges the court’s instruction eight wherein the jury was told the certification tags constituted a warranty. What we have already said disposes of that point. The same statement applies to the court’s refusal to give defendant’s instructions A and B. Affirmed.

Marian F. Penix, Judge. Appellant, Dee Leslie Mathis, was charged with the crime of first degree murder in the slaying of his girlfriend, Patricia Holland. The appellant and Ms. Holland had lived together for approximately one and a half years before her death. Each had a child by a previous marriage living with them. At the time of the occurrence which led to Ms. Holland’s death, both children were present as well as Ms. Holland’s mother, Irma Dennis, and a mutual friend, Carl Eugene Freeman. The incident occurred January 20, 1978 at the mobile home occupied by the parties. The testimony reflects that Mr. Freeman arrived at the mobile home around 6:30. Ms. Dennis and Ms. Holland were home. The appellant arrived shortly thereafter. The four sat and talked for awhile. Ms. Holland and Mr. Freeman drank some whiskey; the appellant was drinking beer. The appellant was said to be in a good mood. Ms. Holland decided to go to the grocery store. The road was icy and very slippery. The car became stuck in the driveway. Apparently, attempts to dislodge the car resulted in the transmission being damaged. Ms. Holland returned to the trailer. The appellant went into a bedroom to lie down. Sometime later, Mr. Freeman and Ms. Dennis decided to go to the store in his truck. They went outside. At that point, Ms. Dennis testified, her daughter called for her. She went back into the trailer to find the appellant slapping the deceased. The couple was arguing about the car. Mr. Freeman returned to the trailer. The testimony regarding the next few minutes is confusing. Ms. Dennis testified the appellant ran to the kitchen and grabbed a gun. She placed herself between her daughter and the appellant. According to Ms. Dennis, the appellant reached around her and shot Ms. Holland. Ms. Dennis said in her opinion the shooting was not accidental. The appellant’s 13 year old son and Mr. Freeman both testified the couple was arguing. They did not know who had the gun. There was a struggle involving the appellant, Ms. Holland, and Ms. Dennis. All three fell onto the couch. The gun went off at that point and fell to the floor. Both Mr. Freeman and the appellant’s 13 year old son believed the shooting to be accidental. Ms. Holland was shot in the neck. Mr. Freeman and the appellant attempted to transport her to the hospital in Mr. Freeman’s truck. The truck ran out of gas. Ms. Holland died before an ambulance could reach her. The appellant was found guilty of second degree murder. Due to appellant’s two previous felony convictions, he was charged with being a habitual offender. He received a sentence of fifteen years in the state penitentiary. From that conviction, the appellant has appealed. The first point argued for reversal is the trial court erred in allowing Irma Dennis to testify as to her opinion on whether or not the slaying was accidental. We do not find this to be error. Previously, the law did not allow a witness to give an opinion on the ultimate issue to be decided by a jury. Two examples of the application of the old law are found in Jones v. State, 58 Ark. 390 (1894) and George v. State, 148 Ark. 638 (1921). These cases were decided prior to the effective date of the Uniform Rules of Evidence for Arkansas. Uniform Rule of Evidence 701 permits lay witnesses to testify in the form of an opinion. If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. Uniform Rule of Evidence 704 permits a witness to give his opinion on the ultimate issue to be determined. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. No longer is opinion testimony viewed as “usurping the function of the trier-of-fact’ ’. The trier of fact considers the opinion along with the other evidence and determines the weight to be attached to the testimony. The exclusion of opinion testimony has been sharply criticized for a long time. The Uniform Rules of Evidence reflect a response to the criticism and have made changes to correct the problems with former evidentiary rules. The Federal Rules of Evidence were the model for the Uniform Rules of Evidence for Arkansas. The Advisory Committee Notes accompanying Rule 704 reflect the reason for making opinion testimony admissible. The older cases often contained strictures against allowing witnesses to express opinions upon ultimate issues as a particular aspect of the rule against opinions. The rule was unduly restrictive, difficult of application, and generally served only to deprive the trier of fact of useful information. 7 Wigmore § 1920,1921; McCormick § 12. The basis usually assigned for the rule, to prevent the witness from “usurping the province of the jury,” is aptly characterized as “empty rhetoric”. 7 Wigmore § 1920, p. 17. Efforts to meet the felt needs of particular situations led to odd verbal circumlocutions which were said not to violate the criminal responsibility of an accused in terms of sanity or insanity, but not in terms of ability to tell right from wrong or other more modern standards. And in cases of medical causation, witnesses were sometimes required to couch their opinions in cautious phrases of “might or could,” rather than “did,” though the result was to deprive many opinions of the positiveness to which they were entitled, accompanied by the hazard of a ruling of insufficiency to support a verdict. In other instances the rule was simply disregarded, and, as concessions to need, opinions were allowed upon such matters as intoxication, speed, handwriting, and value, although more precise coincidence with an ultimate issue would scarcely be possible. The appellant has argued that Uniform Rule of Evidence 704 applies only to testimony by experts. Therefore, the testimony of Ms. Dennis should have been excluded. The Advisory Committee Notes make it clear that Rule 804 applies to any witness — lay or expert. Not all opinions are admissible. Guidelines for the admissibility of opinions are found in the rules. Rule 701 states the opinion must be helpful to the trier of fact. Under Rule 401, the evidence must be relevant. Rule 403 provides for the exclusion of any evidence which will only waste time. The notes accompanying Rule 704 state: These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oathhelpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. We do not find the testimony of Ms. Dennis to be objectionable for any of these reasons. The appellant has argued that the opinion testimony of Ms. Dennis was not based on something she could rationally perceive. Only something which can be perceived by the senses is admissible under Rule 701, i.e., speed of a car, sounds she heard. In this instance, Ms. Dennis’ opinion was on the issue of purpose or intent. She was in a position to observe the argument and the struggle. We do not find the appellant’s interpretation of Rule 701 to be correct. The argument has been made that, because we cannot directly see, hear, or feel the state of another person’s mind, therefore testimony as to another person’s state of mind is based on merely conjectural and therefore inadequate data. This argument is finical enough; but it proves too much, for if valid it would forbid the jury to' find a verdict upon the supposed state of a person’s mind. 2 Wigmore, Evidence, § 661, (Third Edition, 1940). There are no Arkansas cases which interpret Rule 701. John Hancock Mutual Life Insurance Co. v. Dutton, 585 F. 2d 1289 (5th Cir. 1978) was a civil suit which involved a similar issue. The suit involved the attempt to recover accidental death benefits on a life insurance policy. On appeal, John Hancock argued that this testimony should not have been admitted. Under John Hancock’s construction, a witness could never testify to his views concerning the feelings of another person. . . _. When, as here, the witness observes first hand the altercation in question, her opinions on the feelings of the parties are based on her personal knowledge and rational perceptions and are helpful to the jury. The Rules require nothing more for admission of the testimony. John Hancock Mutual Life Insurance Co. v. Dutton, supra, at 1294. See also, United States v. Scavo, 593 F. 2d 837, 844 (8th Cir. 1979). The evidence reflects there was evidence of a struggle. The witness was in a position to observe. Her observations were rationally perceived. It was helpful to the trier of fact to know whether this eye witness felt the shooting was accidental. The appellant’s second point argued for reversal is that the trial court erred in refusing to allow the defense to impeach the credibility of one of the state’s witnesses by introducing evidence of her alleged “drug problem”. On cross-examination, the appellant attempted to question Ms. Dennis about a drug problem. Ms. Dennis denied having a drug problem or using any type of drug that had not been prescribed by a doctor. The appellant then asked the judge for a subpoena duces tecum for hospital records. This was denied. The judge also refused to allow the appellant to cross-examine the witness on her drug history. The appellant contends this was reversible error. We do not find this to be error. On cross-examination on collateral issues a cross-examiner is bound by the answers he receives from the witness and may not impeach his testimony by the introduction of contradictory evidence. Powell v. State, 260 Ark. 381, 540 S.W. 2d 1 (1976); Odom v. State, 259 Ark. 429, 533 S.W. 2d 514 (1976). The questions asked of Ms. Dennis were collateral to the issue of the trial. The Arkansas Supreme Court set out the test for determining collateral issues in McAlister v. State, 99 Ark. 604, 139 S.W. 684 (1911). This was relied upon in Randall v. State, 239 Ark. 312, 389 S.W. 2d 229 (1965). This determination to be made is whether the cross-examining party would be entitled to prove the issue as part of his case. The determination of whether Ms. Dennis was a drug addict was not an issue which would have been an integral part of the appellant’s case. See also, Brown v. State, 259 Ark. 464, 534 S.W. 2d 207 (1976). We find no error in the second point. Turning to the appellant’s third point argued for reversal, we find some problems. This was a bifurcated trial. After the jury found the appellant guilty, evidence was then heard regarding his character. Testimony was received which indicated the appellant had two previous felony convictions. The appellant’s employers testified as to his work record and the fact that he had become an assistant manager. The judge held that since the appellant had been convicted of two prior felonies and was considered a habitual offender pursuant to Ark. Stat. Ann. § 41-1001, the alternate fine provisions were not available as possible punishment. The appellant was convicted of murder in the second degree. This is a class B felony. Ark. Stat. Ann. § 41-901 provides: (1) A Defendant convicted of a felony may be sentenced to a term of imprisonment: (b) not less than three (3) years nor more than twenty (20) years, if the conviction is of a class B felony. Ark. Stat. Ann. § 41-1101 provides: (1) A Defendant convicted of a felony may be sentenced to pay a fine: (a) not exceeding $15,000, if the conviction is of a class A or B felony. Ark. Stat. Ann. § 41-1001 provides: (1) A Defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows: (b) not less than five (5) years nor more than thirty (30) years, if the conviction is of a class B felony. The Commentary to § 41-1001 indicates this section was designed to provide more flexibility in sentencing recidivists. The language does not, however, make a stiffer sentence mandatory. The options should have been made available to a jury. It was for the jury to determine whether to impose a sentence of confinement, a fine, or both. We find no error in the jury verdict of guilty of second degree murder. This was, however, a bifurcated trial. Since we find error in the second stage, we must reverse and remand for a new trial. The appellant is entitled to have his sentence imposed by the same jury which determines his guilt or innocence. Ark. Stat. Ann. § 41-1005. This is not possible without a new trial. The appellant could, however, permit the presiding judge to consider both possible sentencing statutes and impose the punishment. This is the appellant’s choice. We therefore reverse and remand for proceedings not inconsistent with this opinion.

GrieeiN Smith, C. J. May 5, 1936, Little Red River Levee District'No. 2, and Jndsonia Drainage District of White County, sold to G. D. Moore the merchantable timber on lands of the two districts which overlapped. The lands were acquired by the districts through foreclosures of liens for betterments. Moore sold the oak timber to J. H. Dailey. The districts executed a joint release in Bailey’s favor. The contract between Moore and the districts called for a cash payment of $250. An additional payment of $3,250 was. to be made on or before May 21,1936, and final payment, of $3,500 matured on or before November 21, 1936. Agreement between Moore and the districts recited: “The vendors expressly reserve and retain a vendor’s, lien on all of said timber to secure the balance due on purchase money; and, if the vendee cuts, removes, or sells merchantable timber from said land to the extent, value and amount of $3,500 before said notes are paid, the excess shall be applied to the satisfaction of the balance-due. ’ Another provision is: “All timber not cnt and removed by the vendee within five years from the date hereof shall revert to and become the property of the vendors. After cutting the timber the vendee shall surrender one-fifth of the total acreage each year to the vendors, in tracts contiguous to each other, but, if he needs more time for cutting the timber on any specified tract, he may have additional time, not to exceed one year, upon paying state and county taxes due on the particular tracts which he elects to hold over.” Before either of the two larger installments was paid, Moore consummated his deal with Bailey. Acceptance by the district was evidenced in writing. Bailey’s payment of $4,500 was made to appellants to apply on the Moore contract. It is contended by appellants that the contract with Me ore gave him a maximum of five years within which to cut and remove the timber, but one-fifth was to be cut each year, and the land from which such timber was cut should be surrendered to the districts. If more timé were required, the vendee had the right of an additional year by paying the state and county taxes ‘ ‘ on the particular tracts which he elects to hold over.” Appellees contend that, the land being property of the districts, it is not subject to state and county taxes while so held; therefore, they urge, the taxpaying provision of the contract is unenforcible. The court sustained demurrers to the complaint as to all allegations except one charging appellees with cutting unmerchantable timber. This appeal is from the chancellor’s action in holding that as to the contractual matters pressed by appellants, the complaint did not state a cause of action. It is well settled that where improvement districts acquire lands under authority given to foreclose better ment liens, such, districts bold in tbeir governmental capacities'; and, during sucb possession, state and county taxes are not assessable. But tbe law is otherwise if the-use made of the property after it has been acquired is. other than that contemplated by the statute under which, the district was created. First. Time within which the timber was to be removed was five years. But provisions in the contract for surrender of one-fifth of the acreage “each year to the-vendors”; or, in the alternative, to exercise the option of procuring additional time not to exceed one year-through payment of state and county taxes ‘ ‘ due on the-particular tracts,” mean that the parties contemplated that one-fifth of the timber should be cut each year. Date of the contract was the time from which the privilege should run as to the first one-fifth. To procure additional time, payment of state and county taxes was-requisite. Second. While Bailey’s contract contains language-expressive of absolute release by the districts, there is a. declaration that he, his heirs and assigns, shall hold, “with all the rights and privileges granted unto the said G. D. Moore in the original contract of sale and purchase-hereinabove described.” The construction placed upon Moore’s contract attaches to 'Bailey. Moore’s partner was D. E. Benton. Moore and Benton sold timber to R. P. Moore and B. Johnson & Sons,, but these transactions are not pertinent other than for the purpose of identifying the parties. The construction we have given the contract seems-to have been the' one adopted by thé parties* for in reply to a letter -written to Moore by appellants’ attorney, there ivas a reply from. 'Benton, on behalf of the partnership of Moore and Benton; stating that the taxes would be paid. In Robinson v. Indiana & Arkansas Lumber & Mfg. Co., 128 Ark 550, 194 S. W. 870, 3 A. L. R. 1426, Mr. Justice -Hart, after stating that the St. Francis Levee District, was a g"ua.s-¿-eorp oration to which certain governmental powers had been delegated, said: “The correctness of the chancellor’s holding depends upon whether the lands were acquired by the levee district in its proprietary capacity or in the exercise of its functions as a governmental agency. In the former, case the lands would not be exempt and in the latter case they would be exempt, from taxation. The distinction, we think, has been recognized in our previous decisions relating to the question.” It was then stated that [the lands] “were not held for any purpose of gain or as an income-producing property,” and, therefore, the proprietary attributes did not attach. • By Act No. 146 of 1905, timber sold as such, without conveyance of the land upon which it is grown, is taxable as personal property, and this is true whether such timber has been cut, or not. In the instant case the timber in question became personal property for purposes of taxation when the contract was signed in May, 1936. A provision of the contract following the direction for application of the “excess” is: “And to the end that the vendors may know the amount of all sales made by the vendee, he shall furnish them duplicate invoices and bills of lading, statements of receipts and disbursements, and on demand shall exhibit his books for inspection, and examination by agents and representatives of the vendee.” The “Release of Lien” executed hy appellants May 23, 1936, contained the following language: . . . “do hereby grant, sell, quit-claim and release unto the said J. H. Bailey” [here followed description of acreage], and then: “To have and to hold the same unto the said J. H. Bailey, and unto his heirs and assigns, with all the rights and privileges granted unto the said G. D. Moore in the original contract of sale and purchase hereinabove described.” Robinson v. Indiana & Arkansas Lumber & Mfg. Co., 128 Ark. 550, 194 S. W. 870; 3 A. L. R. 1426; Kelley Trust Company v. Lundell Land & Lumber Co., 159 Ark. 218, 251 S. W. 680. Reference is again made to the opinion written by Mr. Justice-Hakt in Robinson v. Indiana & Arkansas Lumber Company, where an: exhaustive review of several cases was made and the distinction drawn between the status of guasi-corporations functioning as governmental agencies, and activities of such agencies serving in a. proprietary capacity. June 18, 1937, the attorney for appellants wrote G. D. Moore: “By reference to the contract of sale and purchase of timber between the districts and Mr. Moore, dated May 5, 1936, it appears that it is. required of the purchaser to surrender one-fifth of the acreage each year or pay an additional sum equal to the state and county taxes. Accordingly, we will thank you to furnish us a correct description of thé lands you wish to surrender, or else arrange to pay the required additional amount.” [Note — This letter was addressed to G. D„ Moore and D. E. Benton jointly], June 22, 1937, Mr. Benton wrote: “In reply to yours of recent date, we have decided to pay the state and county tax on the one-fifth-of the timber that G. D. Moore purchased from Little Red River .District. I will look after this in the near future.” [The letter was written on stationery of Benton & Moore, “D. E. Benton, President; G. D. Moore, Secretary”]. Act 146 of 1906 appears as § 13599 of Pope’s Digest: “Hereafter all timber in this state which has been sold separately and apart from the land on which it stands shall be classed as personal property, and shall be subject to taxation as such. And the said timber interests shall be assessed and ithe taxes collected thereon in the county where said timber is located.”

John A. Fogleman, Justice. This appeal arises from an order of the Probate Court of Cleburne County appointing Ivan H. Smith, attorney for Arkansas Social Services, as guardian of the persons and estates of Sharon Renea Davis, Donna Arlene Davis and Brian Junior Davis, minor children of appellants Loyd Davis and Ñola Mae Beeney Davis. The order gave the guardian full right and authority to consent to adoption, without notice to, or consent of, the natural parents. The order was entered on June 1, 1978, upon petition of this attorney for Arkansas Social Services. He alleged that: the children were under the care and custody of Arkansas Social Services pursuant to an order of the Juvenile Court of Cleburne County made on December 14, 1977; they were dependent children within the meaning of Ark. Stat. Ann. §§ 45-401, 45-449, and Act 195 of the General Assembly of 1977; they had been deserted and abandoned by their parents; the parents were unfit to properly care for the children; the grounds of unfitness of the parents were desertion, abandonment and depravity; appointment of a guardian was sought because the parents were unfit to properly care for the children and would not be able to do so; and it was for the best interest of the children that all bonds be severed with the parents and the children placed for adoption in a suitable home. One of the grounds for reversal urged by the parents is that the involuntary termination of their parental rights was in violation of the due process clauses of the Arkansas and United States Constitutions. One facet of their argument on this ground is based upon their assertion that Ark. Stat. Ann. § 56-128 (2) (h) (Supp. 1977) is unconstitutionally vague. Since we agree, the order of the probate court is reversed and the petition dismissed. Before discussing the reasons for our disposition of this case, there are matters pertaining to the record and the proceedings that should be stated to avoid misunderstandings as to the effect of our holding. There was no appeal from the juvenile court order by which Arkansas Social Services was given custody of these children and that order is not under review here. The allegations of the petition for guardianship charging appellants with unfitness because of abandonment, depravity and desertion were abandoned by the petitioner just at the outset of the hearing and the petitioner elected to rely upon his allegation that appointment of a guardian with authority to consent to adoption was sought because the parents are unfit to properly care for the children and will not be able to care for them. When this election was made, petitioner’s attorney stated that reliance was placed upon Ark. Stat. Ann. § 56-128 (2) (h). The probate court’s order was based upon its finding that “the parents are not fit and competent to have custody and control of said children and are unable to provide a proper home for the children as set out in Ark. Stat. Ann. § 56-128 (2) (h).” In orally stating his findings, the probate judge concluded that, based upon the evidence, the parents have failed to provide a proper home for the children. We forego any discussion of the evidence pertaining to the physical, mental and economic limitations of these parents, because we find the section on which the court’s order is based to be unconstitutionally vague in that the term, “a proper home,” does not provide sufficient guidelines to meet the due process requirements of the Fourteenth Amendment to the United States Constitution and Art. 2, § 8 of the Arkansas Constitution, where the termination of parental rights is involved. The probate judge clearly recognized that there was a problem connected with the statutory language of the subsection involved. He remarked that the statute was not well drafted and that it would be unconstitutionally vague, if judged by the standards applicable to a criminal statute. In examining the statute, it is important that we have in mind the nature of the proceedings. Its ultimate effect from the perspective of appellants is the complete termination of their parental rights. The concern of this court for the preservation of these rights has been expressed over a long period of time. In 1881, in Verser v. Ford, 37 Ark. 27, even though a father was denied custody of his infant daughter, we recognized the rights of parents, of good moral character, however poor and humble they might be, if able to support their child in their own style of life, not, as a cardinal principle of law and nature, to be deprived of parental privileges, except when urgently necessary to afford the child reasonable protection. Cf. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944); Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968). Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts. They have been classified as essential rights, basic civil rights, and personal rights more precious than property rights. May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953). See Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), and other cases cited therein. They have been said to be fundamental rights. Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972). Not very long ago we recognized that parental rights are protected by the due process clauses of the Fourteenth Amendment to the United States Constitution and Art. 2, § 8 of the Constitution of Arkansas. See Carroll v. Johnson, 263 Ark. 280, 565 S.W. 2d 10. Even more recently we empasized the importance of parental rights in a case in which they might have been terminated. Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979). Certainly there remains no lingering doubt about the facts that the rights of parents to the care, custody and upbringing of their children are the subject of constitutional protection on both due process and equal protection standards. See also, Stanley v. Illinois, supra; Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 66 L.Ed. 1070 (1925). Parental rights are not. however, beyond limitation in the public interest. Prince v. Massachusetts, supra; Cude v. State, 237 Ark. 927, 377 S.W. 2d 816. The state’s constitutional interest extends to the welfare of the child. In re William L., 477 Pa. 322, 383 A. 2d 1228 (1978). Parental rights are not immune from interference by the state in its role of parens patriae. Minor Children of F. B. v. Caruthers, 323 S.W. 2d 397 (Mo.App., 1959). From this background, we have concluded that any statute which affords a vehicle for the termination of parental rights must meet basic constitutional due process requirements. A statute cast in vague and conclusory terms will not meet those requirements. When a statute is too vague to be effective, it is void. Snow v. Riggs, 172 Ark. 835, 290 S.W. 591; State v. Bryant, 219 Ark. 313, 241 S.W. 2d 473. The probate judge was certainly correct in his analysis of due process requirements in the criminal law field. A statute defining an offense for which one may be punished is void for vagueness under due process standards, unless it gives one of ordinary intelligence fair notice that his contemplated conduct is forbidden, so he may act accordingly. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). A criminal statute which does not furnish a sufficiently ascertainable standard of guilt does not meet constitutional due process requirements. Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066 (1937). In criminal cases, placing discretion in the hands of the police without prescribing any standards governing its exercise is another instance which renders a statute void for vagueness. Papachristou v. City of Jacksonville, supra. A statute permitting a court to put one it thinks is living subhumanly in prison for failure to raise his sights would be impermissible. Papachristou v. City of Jacksonville, supra. A law which, due to vagueness, leaves basic policy matters in the criminal law field to either policemen or judges on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application, is also impermissible. Grayned v. City of Rockford, supra. A law that is so vague and standardless that it leaves judges or jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case fails to meet due process requirements. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966). See also, Andrew Jackson, ex parte, 45 Ark. 158. In statutes regulating business, the leeway is greater. Papachristou v. City of Jacksonville, supra. There was an appropriate contrast drawn between statutory language that is vague and indefinite under due process standards and that which is not in A. B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 45 S. Ct. 295, 69 L. Ed. 589 (1925). There the pertinent language provided that it should be “ ‘unlawful for any person wilfully ... to make any unjust or unreasonable charge in . . . dealing in or with any necessaries’ ” or to agree with another “ ‘to exact excessive prices for any necessaries.’ ” That language was held unconstitutionally vague and indefinite because the terms unjust, unreasonable and excessive, as applied to prices in the provision in question, had no commonly recognized or accepted meaning and the statute contained no provision pointing to what should be deemed a just, reasonable and not excessive price, and there was no accepted and fairly stable commercial standard which could be regarded as impliedly taken up and adopted by the statute. On the other hand, the court pointed out that a statute directed against the exaction of unjust, unreasonable and oppressive rents was not vague and indefinite because it was not silent on the standards. It recognized and named elements which would require consideration and had been construed to prescribe a standard which permitted the landlord to receive a reasonable income on his investment, valued as of the time the rent was reserved. It was pointed out that the United States Supreme Court had upheld the rent statute because real property, especially in a city, comes to have a recognized value which is relatively stable and easily ascertained and a recognized rental valud, in terms of compensation commonly asked and paid for its occupancy and use. A standard which had come to be fairly well settled and understood in actual practice in the course of business had been held sufficient to meet due process requirements that a statute be sufficiently definite and intelligible. But, even in cases of statutes regulating business, the ex action of obedience or requiring conformity to a standard which is so vague and indefinite amounts to no rule or standard at all. A. B. Small Co. v. American Sugar Refining Co., supra. After reviewing the authorities, we have come to the conclusion that where standards for termination of parental rights are the subject of the statute involved, the application of “vagueness” tests should lie somewhere between that given criminal law statutes and that given statutes regulating business, i.e., permitting greater flexibility than where criminal law statutes are involved and less flexibility than with business-regulatory statutes. See Minor Children of F.B. v. Caruthers, 323 S.W. 2d 397 (Mo. App., 1959). This is because any parent should have some basic understanding of his obligations to his children, but many cannot be as alert to, and aware of, prevailing practices basic to establishment of standards as those engaging in business would likely be to settled and well understood standards and practices. Mathematical certainty in language is not to be expected in any statute. Grayned v. City of Rockford, supra. See also, Robinson v. United States, 324 U.S. 282, 65 S. Ct. 666, 89 L. Ed. 944 (1945). Flexibility and reasonable breadth, rather than meticulous specificity or great exactitude, in a statute are permissible, so long as its reach is clearly delineated in words of common understanding. Grayned v. City of Rockford, supra; Minor Children of F. B. v. Caruthers, 323 S.W. 2d 397 (Mo. App. 1959). A statute which defines boundaries sufficiently distinct for citizens, policemen, juries and appellate judges is not im-permissibly vague. Grayned v. City of Rockford, supra. Impossible standards of specificity are not required by the constitution, even in criminal statutes, and a statute meets constitutional muster, if the language used conveys sufficient warning when measured by common understanding and practice. Jordan v. DeGeorge, 341 U.S. 223, 71 S. Ct. 703, 95 L. Ed. 886 (1951); United States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947). It is not necessary that all kinds of conduct falling within the reach of the statute be particularized. City of Chicago v. Fort, 46 Ill. 2d 12, 262 N.E. 2d 473 (1970). A statute is not to be struck down as vague only because marginal cases could be put where doubts might arise. United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954). The futility of anticipating and enumerating every means or method a fertile mind might devise that would come within the purview of a statute is obvious. City of Chicago v. Fort, supra; Minor Children of F. B. v. Caruthers, supra. Among other things, proper, as an adjective, may mean: Belonging to the natural or essential constitution; belonging characteristically to a species or individual or arising from the nature of one; peculiar; distinctive; as every animal has his proper instincts and appetites. Befitting one’s nature, qualities, etc; appropriate; suitable; right; fit; as, water is the proper element for fish; a proper dress; games proper to spring. Fine; excellent; goodly; — often used ironically. Belonging to itself; inherent. Cf. PROPER MOTION. Strictly pertinent or applicable; exact; correct; as, proper words in proper places. Conforming to the best usage ethically or socially; decorous, decent. Webster’s New International Dictionary, 2d Ed. (omitting special, obsolete, archaic and slang definitions). Thus, several of the usual definitions of the word might be used to describe a home. If we can choose one with any assurance that it expressed the legislative intent, we should. An act of the General Assembly should be given a construction that meets the test of constitutionality, if possible to do so. United States v. Harriss, supra. If the choice of one meaning would make a statute constitutional and choice of another would render it unconstitutional, the answer would be easy. But the problem here is not so simply solved. The choice is from multiple meanings. Generally, a meaning may be assigned to a word that is fitting to the context in which it is used. It has been said that the word “proper” in one context means “appropriate,” “suitable,” “right,” “fit,” or “correct.” Brotherhood of Railway and Steamship Clerks v. Railway Express Agency, 238 F. 2d 181 (6 Cir., 1956). In another, it was said to mean “consistent with propriety” or, alternatively, “appropriate,” “suited to” and swallowed up by the word “necessary.” Phillips Sheet & Tin Plate Co. v. Amalgamated Ass'n. of Iron, Steel & Tin Workers, 208 F. 335 (S.D., Ohio, 1913). It has also been said to be synonymous with “correct. ” Cook v. Dunbar, 66 R.I. 266, 18 A. 2d 658 (1941); Industrial National Bank of Rhode Island v. Rhode Island Hospital, 99 R.I. 289, 207 A. 2d 286 (1965). Using any of these meanings does little to make the words, “a proper home,” clearly understandable, so that it doesn’t mean one thing to one judge, something else to another, and something yet different to still another. What is a proper home? A correct home? A suitable home? A fit home? An appropriate home? A home consistent with propriety? Is propriety to be determined ethically, socially, or economically? Or on the basis of morality? Or prosperity? Is the standard a maximum, a minimum, a mean or an average? Clearly, mere economic conditions of a family, standing alone, should not be the criterion for termination of parental rights. In re Interest of Camm, 294 So. 2d 318 (Fla., 1974), cert. den. 419 U.S. 866, 95 S. Ct. 121, 42 L. Ed. 2d 103 (1974). The fact that a home is “submarginal” and likely to result in a “cultural deprivation” is not enough, but an irremedial failure to provide a stable family relationship or to meet the child’s essential and necessary physical and mental needs over an extended period of time, may be. In re William L., 477 Pa. 322, 383 A. 2d 1228 (1978). We have equated “proper” with “reasonable” in another context. Eudora Motor Co. v. Womack, 195 Ark. 74, 111 S.W. 2d 530. Doing so here would not relieve us from our quandary. Our problem is not made easier by the realization that a statute cannot be more specific than reasonably possible under the circumstances and that practical considerations make mechanical applications of specifications impossible. But we do not consider this to be a case where more specific language would be difficult to conceive, or the multiplicity of potential parental shortcomings imposes an insurmountable obstacle. See In re William L., supra; Alsager v. District Court of Polk County, 406 F.S. 10 (S.D. Iowa, 1975), aff’d. on other grounds, 545 F. 2d 1137 (8 Cir., 1976). Appellee suggests that the section of the statute in question is directed to parental inability to meet the essential needs of their children. But the statute does not say this and it is not for us to make it say something that it clearly does not. See Snow v. Riggs, 172 Ark. 835, 290 S.W. 591; Robinson v. United States, supra. After all, the conditions upon which parental rights are to be terminated are a question of policy, the resolution of which is addressed in a democracy to the policy making branch of government, the General Assembly. In re William L., supra. See also, Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977). We have held that a statute exempting “small farm vehicles” from requirements of safety signals on vehicles without defining the term or providing how it can be determined whether a farm vehicle is small was too vague and uncertain to satisfy constitutional standards for criminal statutes. State v. Bryant, 219 Ark. 313, 241 S.W. 2d 473. We find the meaning of “a proper home” at least as elusive as “small farm vehicles.” Although the former term is used in a non-criminal statute and the latter in a criminal law, “proper home” still would permit such a wide latitude for interpretation that its meaning would vary widely among judges, who like other human beings, can only see things through their own eyes. Another court dealing with severance of parent-child relationships in Roe v. Conn, 417 F.S. 769 (M.D. Ala., 1976), asked the critical question facing us and answered it as we must, saying: *** When is a home an “unfit” or “improper” place for a child? Obviously, this is a question about which men and women of ordinary intelligence would greatly disagree. Their answers would vary in large measure in relation to their differing social, ethical, and religious views. Because these terms are too subjective to denote a sufficient warning to those individuals who might be affected by their proscription, the statute is unconstitutionally vague. *** We deem the statutory provision in question to leave the discretion vested in judges so broad that arbitrary and discriminatory parental terminations are inevitable. Cf. Alsager v. District Court of Polk County, supra. Since we find Ark. Stat. Ann. § 56-128 (2) (h) too vague to meet due process requirements of both the state and federal constitutions, and the petition and judgment totally dependent on that provision, appellees having elected to stand on that provision only, we must not only reverse the judgment but also dismiss the petition.

John A. Fogleman, Justice. Appellant seeks reversal of his conviction of the crime of malicious injury to graves or monuments. The charge is based on Ark. Stat. Ann. § 41-3706 (Kepi. 1964). Under this act the wilful and malicious destruction, injury or defacement of any grave or monuments or the wilful and malicious removal or destruction of a monument constitutes a felony. Appellant argues three points for reversal. They are: 1. Error in refusal of his motion for directed verdict ; 2. Error in modifying his requested instruction No. 3 and in giving the instruction as modified; 3. Error in denying a motion for new trial. In reviewing the sufficiency of the evidence as against the motion for directed verdict, we must view it in the light most favorable to the state. Terry Pillow testified that he had been familiar with the cemetery known as the Adderholt Cemetery for 10 or 15 years and had known of' its location for 35 or 40 years. He said that the graves of some of his relatives were definitely marked, by monuments. According to Mm, some of the monuments were fieldstone bearing names and dates and others were rocks piled over the grave with initials and dates carved on the top rocks. He testified that a dwelling house had been built within 12 or 15 feet of the graves of his relatives. On his visit to the graves preceding that when he saw the house, there was still a fence around the graves. He estimates that there were from 20 to 35 graves in the graveyard all of which were marked with tombstones. He recalled that the graves of the Baker family were marked with marble tombstones. ■ He found the fence in place shortly before appellant bought the property which included the graveyard. Mrs. Ora Belle Baker McGraughey testified that gray marble tombstones were placed on the graves of her grandparents but that the tombstones were gone at the time of the trial. Mr. Bichard SMpman who purchased the land including the graveyard along with appellant testified that their deed was made December 22, 1965. After the purchase of the land, he and Cooper walked over it and found evidence of the cemetery in the form of marble tombstones bearing the name of Baker and covered graves. Shipman received a call through which he was advised that there was a graveyard on the land. He relayed this information to Cooper. It was later verified by the person from whom they purchased the land. SMpman also described fieldstone and flat sandstone standing 18 inches off the ground so as to enclose what appeared to be graves. He told Cooper that they should put a small fence around the cemetery if they could establish the boundary lines, saying that they couldn’t afford to molest the cemetery. Shipman returned to the site after a road was constructed and found that the two marble tombstones were gone. The graves appeared to be intact at that time. Shortly, thereafter, Shipman sold his interest in the land to Cooper. He returned to the site later and saw a dwelling house within 10 or 12 feet of the place he had seen the tombstones and graves. Herbert Terry told of going to the cemetery about the time a road was being constructed by appellant. He stated that he asked Cooper to leave the rock where his relatives’ graves were. At that time the rocks were still in place but the Baker monuments were not. He returned to the site in June or July of 1968 and the rocks on his relatives’ graves had disappeared. Cooper advised Terry that the rocks were in the footings where he was building a house. According to Terry the house was sitting where the graveyard had been and the driveway wTas the cemetery. Terry claimed that the headstone of his grandfather’s grave was jerked up twice during the construction by Cooper and that he and his wife had replaced it both times. He found it removed a third time but did not replace it because it was broken in two or three places. Pat McEntire testified that Cooper employed him to haul some rock that was piled at or near the site of the cemetery. The rock was put under the floor of Cooper’s brother-in-law’s house for fill. Charles Youngblood stated that he was hired by Cooper to level some ground at or near the location of the cemetery. He stated that Cooper picked up some flat sandrock stacked to make what appeared to be a tomb and put it in his pickup truck. Youngblood had previously refused to haul the rock off and told Cooper that it appeared to be tombstone rock. He testified that Cooper told him they were graves. Tom Bearden was employed by Cooper to install the plumbing in the house built near the graves. When he first went to the site he saw two stacks of rocks which looked to him like graves. Later he noticed they were gone. Bearden engaged in a conversation with Cooper and one L. E. Stewart with reference to the choice of a shallow or a deep septic tank for the house being constructed. He could not recall the particular statements made but stated that a decision was reached to use the shallow tank in order to avoid digging in any graves in the cemetery. George Lowe was a roofer employed by Cooper to roof the house built near the cemetery. He noticed three or four graves near the house. Lowe saw L. E. Stewart using a backhoe in Cooper’s presence to dig* for the installation of a septic tank. According to Lowe, a trench for the septic tank line was being dug across the graves, and he and his son went to the trench where they could see the dark form of a grave six feet from the foundation of the house. Lowe heard Herbert Terry make an angry protest to Cooper and heard Cooper say if Mr. Rockefeller could get by with it so could he. This evidence was certainly sufficient for a jury to find a guilty verdict if the testimony was accepted at face value. Appellant requested the following instruction to the jury: “The three essential facts to constitute the crime with which the defendant is charged are : 1. That he committed the acts charged in the indictment; 2. That he did so wilfully; 3. That he did so maliciously. You are further instructed that word ‘maliciously’ means the doing of an act in a manner showing a heart regardless of social duty and fatally bent in mischief. It means an act done intentionally and with evil intent, without just cause or excuse, or as a result of ill-will.” Tlie circuit judge refused the instruction as requested but over appellant’s objection gave the following instruction: “The three essential facts to constitute the crime with which the defendant is charged are: 1. That he committed the acts charged in the indictment; 2. That he did so wilfully; 3. That he did so maliciously. The jury is instructed that a malicious act is a wrongful act intentionally done without legal justification or excuse. It is an unlawful act done wilfully or purposefully, the evidence of which may be inferred from the acts committed or words spoken. ’ ’ The gist of appellant’s contention with reference to the instruction given seems to be that it does not sufficiently define the word maliciously as used in the statute. This court had occasion to consider the meaning of this word in a ease wherein the sufficiency of an indictment for burglary was attacked because the statutory word “maliciously” was not used. Shotwell v. The State, 43 Ark. 345. In treating this question this court said: “In the use of the word ‘maliciously’ in the statute we cannot presume that the legislature intended that malice towards the owner of the house entered, or toward any one else should become an element in the intent with which the breaking is done. The word must be understood from its context to be intended in its restricted legal signifi canee which, implies ‘the intent from which follows any unlawful or injurious act, committed without legal justification.’ 1 Bishop Cr. Law Sec. 429. It means doing a wrongful act without just cause or excuse. 2 Bouvier L. Dict. Malice. Bishop says that ‘maliciously’ in an indictment has been adjudicated an equivalent to •‘wilfully’ in the statute. ‘Maliciously’ is of somewhat lai'ger meaning than ‘willfully,’ which in an indictment would not therefore supply the place, it is presumed, of maliciously in the Statute. 2 Bish. G. Pr. Sec. DC.” We find that the instruction given by the trial court was correct and that the requested instruction was properly refused. The one offered would have been incorrect even under Gordon v. State, 125 Ark. 111, 187 S.W. 913. Appellant’s assertion of error in the failure to grant a new trial is based upon the argument that the court should have granted his motion because it had been discovered that the testimony of George Lowe was false. The motion asked a new trial on grounds of newly discovered evidence. In support of the motion appellant offered the testimony of L. E. Stewart, Joe Miller and appellant’s attorney, J. Loyd Shouse. They also presented the witness George Lowe. Stewart testified that Lowe had stated subsequent to the trial that his testimony at the trial was false. Joe Miller who numbered both Lowe und Cooper among his hardware customers stated that Lowe came into Miller’s store a week or ten days after the trial when Cooper was present. He overheard parts of a conversation between Lowe and Cooper about the former’s testimony. According to him the two went out into the yard where they engaged in some eoaversatioi which was continued wlien they returned into the store. He heard a discussion between them as to what would be perjury and what would not and advised them to go to appellant’s attorney. Miller said that he later saw Lowe and learned that he had not been to the attorney’s office as promised. He then asked Lowe why he hadn’t been, and Lowe responded that he wasn’t going. Appellant’s attorney testified that Lowe and Cooper came to his office about a week after the trial. Cooper advised him that Lowe wanted to make a statement. The attorney testified that Lowe said all his testimony in the trial was false, particularly that part about Cooper’s having said that if Rockefeller could tear up a graveyard he ought to be able to do so. He said that Lowe also stated that his testimony about looking down into the excavation for the septic tank and seeing graves was false. When Lowe told Mr. Shouse that Bill Doshier, the prosecuting attorney, made him testify as he did, Shouse said that he didn’t believe him and refused to write up a statement about what Bill Doshier did. Mr. Shouse said that he told Lowe that he would not write out any statement for him because of his disbelief of the statement that the prosecuting attorney had encouraged him to testify falsely. Mr. Shouse suggested that Cooper and Lowe return the next day but Lowe never came back. Lowe testified that his testimony at the trial was true. He said that he was asked to go to Shouse’s office by the appellant in order to see if there wasn’t some way to obtain a suspended sentence or probation. He claimed that Cooper declined to wait until he could talk to the prosecuting attorney. He said that he left the Shouse office after Cooper had insulted him twice. He denied having told Shouse that his testimony was false or that he had followed Doshier’s suggestions in testifying. On the other hand, Lowe testified that Cooper had suggested that these were the facts. Lowe’s version of the conversation with Miller and Cooper was that they threatened him with civil suits because of his testimony. Newly discovered evidence is one of the least favored grounds for motion for a new trial. It is addressed to the sound legal discretion of the trial judge, and this court will interfere only in case of an apparent abuse of discretion or injustice to the movant. The determination of whether the application is in good faith and of the weight and sufficiency of the supporting evidence is within the discretion of the trial judge. In order to justify the granting of the motion, the evidence in support thereof should be clear and satisfactory. Gross v. State, 242 Ark. 142, 412 S.W. 2d 279. Impeaching testimony is not sufficient grounds for granting a new trial on the basis of newly discovered evidence. Philyaw v. State, 224 Ark. 859, 277 S.W. 2d 484. Even if it could be said that there was a recantation on the part of a witness, it is the duty of the trial court to deny a new trial where it is not satisfied that the recanting testimony is true, especially where it involves a confession of perjury. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case including the testimony of the witnesses submitted on the motion for new trial. The answer lies largely within the discretion of the trial court. Clayton v. State, 186 Ark. 713, 55 S.W. 2d 88. We cannot say that there was any abuse of the trial court’s discretion in this regard. The judgment is affirmed. Holt, J., not participating.

G-rieein Smith, C. J. The questions are, Did the complaint state a cause of action, and did chancery have jurisdiction? The State of Arkansas, through its prosecuting attorney for the Third Circuit, brouglit this action for the use and benefit of Independence county against Edgar Baker, county and prohate clerk. Bondsmen were joined as defendants. It was alleged that during 1935 and 1936 the defendant Baker presented to the county court various claims for official services, which were allowed and paid; that such defendant, at the time the accounts were presented and when payment was received, knew he was not entitled to the amounts demanded, and that “His procurement of such orders of allowance with the knowledge that he was not entitled thereto amounted to fraud in the procurement of such orders of allowance.” The excesses and unauthorized charges alleged in the complaint to be fraudulent amount to $1,055.43. ■Baker demurred to the complaint. He also filed an answer and cross-complaint, and a motion to dismiss. The cross-complaint alleged that through error, claims for sums- to which the clerk was legally entitled for services rendered in 19-33, 1934,1935, and 1936, had not been filed, or presented to the county court. The decree found that the demurrer should be overruled, but that the motion to dismiss should be treated as a special plea of res judicata, and sustained. It was also held that the pleadings and proof “. . . were not sufficient to establish such fraud as would authorize collateral attack as against the county court allowing Edgar Baker’s claims.” The cross-complaint was dismissed. No appeal was taken from the action of the court in dismissing the cross-complaint, and that order has become final. The first item of the complaint alleges that Baker collected $253.90 for cancelling and redeeming warrants at' ten cents each. Notation on the -State Comptroller’s-re port, and evidence on behalf of the plaintiff, are to the effect that the fees were not earned . because no record was kept to conform with § 2010, C. & M. Digest, so as to show the county debt.” Purpose in requiring that redeemed warrants be entered is ‘ ‘. . . to show at all times the full amount of the indebtedness of the county.” Appellant assigns two reasons for seeking to surcharge this item: (1) The services were not rendered; (2) the law does not authorize such charge, even if the book entries had been made. The clerk testified it had been customary to allow ten cents each for the cancelled warrants. In the absence of statutory authority, this (custom) would not be sufficient to justify the allowance. Section 2440 of Pope’s Digest, brought from the Revised Statutes, makes it the duty of the county treasurer at his annual settlement to produce the warrants redeemed by him during the preceding year, “. . . and the [county judge] shall write the word ‘redeemed’ across the face of each warrant, and sign his name thereto, and cause all warrants thus redeemed to be filed in the office of the clerk of the county court.” In the absence of citation to authority for making the charge of $253.90, and in view of appellee’s testimony that he relied upon custom, the burden rests upon appel-lee to point to some classification under the fee act or revenue 1 aws whereby the charge became valid. The second item questioned is $75 for “. . . recording, checking, and posting the county treasurer’s fourth quarterly settlement.” There is no statutory authority for this charge. However, Act 157 of 1933 (24th item) allows ten cents “. . . for making settlement of each account with the county.” Item No. 41 of the Act allows ten cents per hundred words “. . . for recording every paper not heretofore provided for. ’ ’ Treasurers ’ reports (made annually on the first Monday in July, . . and of tener, if so required”) may be recorded at the direction of the county judge, and they should be. When so recorded, the county clerk, under Item No. 41 of Act 157, is entitled to ten cents per hundred words for such service. The third, fifth, and eighth items, aggregating $39.80, are for “. . . quorum court attending and recording the acts of - the court. ’ ’ There is no specific statutory provision for such charge, and reference must again be had to Item 41 of Act 157. The fourth item is alleged to have been a duplication of a $15 charge. Whether it was, or was not, is a question of fact to be determined in the first instance by the lower court. The sixth and seventh items are for services in executing affidavits of candidates under the Corrupt Practice Act. Section 4 of Act 308, approved April 2,1913, directs candidates to file such pledges with the county clerk, hut it does not contemplate that the county pay the cost. Such costs must be borne by those seeking office. The ninth item is $196.85 “. . . for 3937 calls of delinquent personal taxes certified to the printer at five cents per tract.” Act 169 of 1935 imposed this duty upon the collector. [See last paragraph of footnote No. 1, this opinion.] The tenth item, $71.55, is alleged to be an overcharge for recording the personal delinquent list. This is a question of fact for first consideration by the lower court. Item No. 11, $155.60, is alleged to be an overcharge. Payment was made to the clerk by the collector for handling delinquent real property lists, on the basis of thirty cents per tract. Under a subdivision of Act 157 of 1933 there is a title, “Fees for Services Under the Revenue Laws.” It authorizes the county clerk to charge ten cents per tract . . for furnishing copy of delinquent lands to printer,” and ten cents additional “. . . for attending sale of delinquent lands and making record thereof. ’ ’ Other items are alleged to be duplicates. A correct determination of their verity involves a question of fact for the lower court’s judgment. Appellees have filed in this court a motion to dismiss because of appellant’s alleged failure to comply with Rule 9. The motion is overruled. It is insisted 'by appellees that the suit is, in effect, a collateral attack on judgments of the county court; also, that the allegations of fraud were not sufficient to give jurisdiction to chancery. Many of our cases are cited as authority for the proposition that if -by any evidence a claim presented to the county court could be allowed, and it is allowed without appeal within six months, effect of such allowance is a binding judgment, and that it can only be set aside by showing that fraud was perpetrated upon the court. Mistake of facts in evidence, de liberate false swearing by witnesses — these are matters entering into consideration of tbe facts, and if tbe damn ant is not a party to tbe fraud, tbe judgment will not be set aside if tbe court acted in good faith. These general principles of law áre not to be denied. We think, however, that tbe rule announced in Johnson County v. Bost, 139 Ark. 35, 213 S. W. 388, is applicable to tbe instant case, and that it correctly declares tbe law. In the opinion, written by Chief Justice McCul-loch, it was said: ■ “The., contention of appellee is that as to the other items, Avhere there was legal authority for their allowance, but which are claimed to have been erroneous in fact, the evidence fails to show that there was any fraud practiced on the county court in procuring the allowances. Counsel for appellee abstracted the testimony of appellee himself and of the county judge, Avhere it is shown that the accounts were made out upon customary blanks and that there was no concealment of fact, or fraud, in other words, practiced. We are of the opinion, however, that the fact that appellee was the clerk of the circuit court, and thus occupied a confidential relationship toward the county with respect to his duty in correctly-keeping the records of the proceedings of the circuit court and the items for which fees were.allowed, and that through his two terms he presented very numerous accounts containing illegal and incorrect items, showing that he was systematically padding his accounts, Avas sufficient to constitute such fraud as would justify a court in setting aside such judgments allowed.” In the ’Bost Case, supra, the improper claims were presented by the clerk of the circuit court. In the case at bar, they were presented by the clerk of the county court. If the relationship of 'confidence referred to by Chief Justice McCulloch existed betAveen the county judge and the clerk of the circuit court, is it not appropriate to say that a higher degree of confidence and trust would ordinarily exist between the judge of the county court and the clerk of the same court? In either case, dealings of the kind involved should be characterized by the utmost good faith; and if, by the application of the rule promulgated in Johnson County v. Bost the public interest can be protected without, at the same time, depriving judgments of that degree of finality which must attach to them when they are properly procured, every consideration of equity calls for the application of that rule for the benefit of Independence county. The decree is reversed and the cause remanded with directions that it be retried in a manner not inconsistent with this opinion. Section 1 of act 157, approved March 25, 1933, amends § 4573 of -Crawford & Moses’ Digest. That part of the' act applicable to county clerks appears as § 5661 of Pope’s Digest. By checking the-fee items as they appear in the published Acts of 1933 with §§ 5661 and 5659 of Pope’s Digest, it will be observed that items which should appear in § 5661 of the Digest are omitted from that section, but are erroneously included in § 5659, and that numerous duplications appear. Attention might also be called to a typographical error in Pope’s Digest. The 26-th item appearing on page 1541 is: “For every rule or order not heretofore specified, 20c.” This item, having been copied from the County Clerk’s schedule, is shown in act 157 (first item, page 486) to be ten, cents instead of twenty cents. An inspection of the original bill in the office of the Secretary of State shows that ten cents is the correct figure. The fourteenth item of § 5662 of' Pope’s Digest is: “For furnishing for publication copy of the delinquent list of delinquent and insolvent taxpayers, for each name, . . . 5c.” Act 169, approved March 21, 1935, which now appears as § 13834 of Pope’s Digest, makes it the duty of the collector “to cause to he published in some newspaper ... a list of those persons who have failed or refused to pay the personal property taxes assessed against them. . . . The newspaper publishing the list shall receive as publication cost the sum of ten cents per name, which sum, together with five cents per name for the collector preparing and furnishing the list, shall be charged to the delinquent taxpayer.” Section 2010 of Crawford & Moses’ Digest (now § 2556 of Pope’s Digest) is: “It shall be the duty of the county clerk to enter in a book, to be provided by him for that purpose, the amount, number and date of all redeemed warrants or other evidences of indebtedness that may have been cancelled, so as to show at all times the full amount of the indebtedness of the county.” In Miller County v. Magee, 177 Ark. 752, 7 S. W. 2d 973, this court, quoting from Chief Justice Cockrill, said: “Observance of a few general rules deducible from the statutes and decisions will serve to simplify the questions. Three things must be found to concur before the county court is authorized to allow a claim, against a county in favor of an officer for fees: (1) There must be specific statutory authority to the officer to make a charge for the service rendered; (2) he -must be required by the statute, or by the rules of practice or order of the court, to perform the service; (3) the statute must indicate expressly or by fair intendment the intention to permit the fee allowed by the statute for the service to be charged against the county.” [See cited cases.] Section 2440 of Pope’s Digest is shown to be § 34 of Chapter 40 of the Revised Statutes. This section, however, is from Chapter 41 of the Revised Statutes. Act 41, approved February 18, 1931 (§ 2520 of Pope’s Digest), requires the county clerk to preserve warrants for a period of two years after cancellation, after which time, in company with the county judge and county treasurer, he shall burn them.” Pope’s Digest, §■ 2435. “For recording every ¡paper not heretofore provided for, for every hundred words, 10c.” Act 308 of 1913 now appears as § 4893 of Pope’s Digest. -

George Rose Smith, Justice. This is a claim for unemployment compensation. The various administrative agencies denied the claim, finding that the claimant voluntarily quit her job without good cause connected with her work. Ark. Stat. Ann. § 81-1106 (a) (Supp. 1979). The circuit court reversed, sustaining the claimant’s contention that her claim falls within an exception in the same subsection, providing that “no claimant shall be disqualified under this subsection if he has voluntarily left his last work to accompany, follow, or join the other spouse in a new place of residence.” Id. On July, 7, 1978, the claimant, a resident of Jonesboro, voluntarily left her employment in order to marry Robert J. Chamberlain and move to Indiana, where Chamberlain was living. The couple were married in Tennessee three days later, on July 10, and took up their residence in Indiana. Even construing the statute liberally, we cannot agree with the circuit judge’s extension of its language to reach this case. A spouse, by definition, is a married person, a husband or wife. This claimant was not married when she left her job and thus could not have quit to accompany, follow, or join “the other spouse.” The statute as written has certainty, which the legislature presumably considered to be desirable; it applies only to married persons. But if the statute is interpreted to apply also to a single person who intends to get married three days later, it might equally well apply to one who intends to get married three weeks or three months later. A rule of liberal construction does not mean that the courts are free to substitute vagueness for precision. The claimant also states that she was “technically” still employed at the time of her marriage, because she was entitled to two weeks’ accrued vacation pay when she quit. The record, however, does not even raise an issue of fact on this point, much less establish the claimant’s contention. There is no indication whatever that the claimant decided to go on a vacation without terminating her employment. To the contrary, she left for the specific purpose of getting married and moving to another state. She was voluntarily unemployed and free to accept another job on the day she left Jonesboro. The administrative agencies did not find, and indeed had no basis for finding, that the claimant was still employed by the appellant when she was married three days after she left her work. Reversed. Harris, C.J., not participating. Purtle, J., dissents.

Frank Holt, Justice. Appellant filed this petition in chancery court to collaterally attack, by an injunction, an order of its Board of Zoning Adjustment which permitted a yard variance to appellees. On May 25, 1978, appellees were issued a building permit by appellant’s building inspector to erect a 4-unit apartment on their single family residential property. Construction was commenced. Appellees were later notified by appellant that the zoning laws would not permit the desired construction. On June 6, 1978, appellant’s building inspector served appellees with a “Notification of Revocation of Building Permit.” Appellees appealed the revocation of the permit to appellant’s Board of Zoning Adjustment. The Board heard the appeal, cancelled the revocation and reinstated the permit. There was no appeal by appellant from the Board’s action. Instead, appellant filed this direct action in chancery court seeking a permanent injunction against further construction and also the removal by appellees of the structure already in place. Appellees filed a demurrer and an alternative motion to dismiss alleging, inter alia, that equity had no jurisdiction, since appellant had not appealed from the order of the Board of Zoning Adjustment to the circuit court as provided by Ark. Stat. Ann. § 19-2830.1 (Repl. 1968) and also the complaint failed to assert a cause of action. Appellant responded asserting that § 19-2829 h specifically empowers it to bring an action to enjoin zoning violations. The chancellor held that appellant could not maintain as an original action in equity this injunctive proceeding as a substitute for an appeal from the decision of the Board of Zoning Adjustment to the circuit court and dismissed the action. For reversal appellant first contends that the court erred in holding that the appellant could not file this original action in chancery court under Ark. Stat. Ann. § 19-2829 h (Repl. 1968). The existence of a Board of Adjustment is mandated by § 19-2829 b. It provides in pertinent part: b . . . . The zoning ordinance shall provide for a board of zoning adjustment, which may either be composed of at least three (3) members or the planning commission as a whole may sit as the board of zoning adjustment. The board of zoning adjustment shall have the following functions: (1) Hear appeals from the decision of the administrative officers in respect to the enforcement and application of said ordinance: and may affirm or reverse, in whole or part, said decision of the administrative officer. (2) Hear requests for variances for the literal provisions of the zoning ordinance in instances where strict enforcement of the zoning ordinance would cause undue hardship due to circumstances unique to the individual property under consideration, and grant such variances only when it is demonstrated that such action will be in keeping with the spirit and intent of the provisions of the zoning ordinance. The board of zoning adjustment shall not permit, as a variance, any use in a zone that is not permitted under the ordinance. The board of zoning adjustment may impose conditions in the granting of a variance to insure compliance and to protect adjacent property. Decisions of the board of zoning adjustment in respect to the above shall be subject to appeal only to a court of record having jurisdiction. (Italics supplied.) . . . h. . . . The legislative body may enjoin any individual or property owner who is in violation of a planning ordinance to prevent or correct such violation. Any individual aggrieved by a violation of a planning ordinance may request an injunction against any individual or property owner in violation of a planning ordinance, or may mandamus any official to enforce the provisions of a planning ordinance. In our view the narrow issue presented is whether the appellant can test the validity of a building permit issued by its own agency by collaterally attacking its correctness in an oridinal injunctive proceeding in chancery court or is limited to testing it by appeal. No citation of authority is provided to us nor do we find a case where appellant can, as here, so collaterally attack the action. We hold that the trial court was correct in dismissing appellant’s action since appellant cannot bypass the provision of the statute which provides that the remedy is by appeal. See Davis, Administrative Law Treatise, § 18.10. In spite of the language of Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971); and City of Batesville v. Grace, 259 Ark. 493, 534 S.W. 2d 224 (1976), the act here which provides for appeals from the Board of Adjustment is not subject to those constitutional limitations applicable to City Council actions in zoning because the Board of Adjustment acts administratively, not legislatively. Appeals to the circuit court from the Board of Adjustment are permitted. See Quapaw Quarter Assn. v. Bd. of Zoning Adj., 261 Ark. 74, 546 S.W. 2d 427 (1977); and Arkansas Power & Light v. City of L.R., 243 Ark. 290, 420 S.W. 2d 85 (1967). Neither can we agree that the appellant had no standing to appeal from the order of its Board of Zoning Adjustment. The statute, as indicated, provides that “[djecisions of the board of zoning adjustment .... shall be subject to appeal only to a court of record having jurisdiction.” It provides no limitations as to persons or entities which may bring such an appeal. Here the appellant, through its building inspector, who had issued and then revoked appellees’ permit, and its mayor presented testimony at the Board’s hearing in opposition to a reinstatement of the permit. They were well aware of the Board’s action and decision to reinstate the permit from which they could have appealed. After careful review, we find no merit in any of appellant’s arguments. Affirmed.

Frank IIolt, Justice. This case results from a multiple car collision. Upon a jury trial, the issues of negligence and damages were found against the appellant and a codefendant, Leonard Johnson, who does not appeal. The jury awarded $137,000.00 to appellee. For reversal the appellant first contends that there was no substantial evidence to support a finding that appellant was guilty of negligence which was a proximate cause of any accident or collision involving his vehicle. It is a well settled rule that if there is any substantial evidence of negligence by a defendant, when viewed in the light most favorable to a plaintiff and given its highest probative value, the question must be submitted to the jury. Gookin v. Locke, 240 Ark. 1005, 405 S.W. 2d 256 (1966) This accident occurred about 6:15 a.m. on February 34, 1966, on Highway 70 about five miles west of Brinkley, Arkansas. The highway was 24 feet 5 inches wide, with each shoulder being 9 feet 5 inches in width. It was dark, the road was straight and level, and weather conditions presented no hazards. Appellee’s decedent, Kermit Blythe, was driving a red Corvair in an easterly direction. Following him was the appellant who was driving a light blue Lodge. The decedent suddenly veered to his left to avoid striking a stalled and unlighted Cadillac which was headed in the same direction, positioned on the right shoulder of the highway and partially on the pavement. This car was being operated by the codefendant, Johnson. When the decedent pulled to •his left to pass the stalled vehicle, he crossed the center line about 18 inches whereupon the left front portion of his car collided with an oncoming Pontiac automobile. This collision caused the Blythe Corvair’s direction to be reversed and its left front portion to be positioned in the path of appellant’s eastbound automobile. Appellant’s vehicle skidded 8B^/a feet before striking the left front portion of decedent’s vehicle. Following this impact the appellant’s ear deflected slightly to the right and after traveling about 25 to 30 feet, came to rest at the rear of the stalled Cadillac after striking it and doing slight damage. The decedent’s car, after being struck by appellant’s vehicle, traveled eastward, or in its original direction and traffic lane, on past the stalled Cadillac and came to rest on the right side of the road approximately 50 feet from the point of impact with appellant’s car. The collision between the Corvair and the Pontiac, and then the Dodge and Corvair, occurred within an area of approximately 20 feet. The appellant said he first applied his brakes when he saw flames resulting from the Pontiac-Corvair collision when he was 125 to 150 feet distant. He testified that he was traveling about 60 miles per hour. This would be approximately 88 feet per second. He had been following the Corvair at a distance of 250 to 275 feet for about four or five miles. There was a burned mark or trail on the pavement extending eastward from the 20-foot area, or the point of impact between the Dodge and Corvair, to about 8 or 10 feet from where the Corvair came to rest. There were fresh scratch marks on the pavement about the center of the eastbound traffic lane and near the end of appellant’s skid marks. According to appellant, he never saw the stalled vehicle nor the oncoming Pontiac before the first collision. He. do.es not remember whether his vehicle was damaged by the collision with decedent’s vehicle or the stalled Johnson vehicle and recalls only one impact. There was red paint from the decedent’s Corvair on the left front of appellant’s ear which shows extensive damage. We have held many times “that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.” Myers v. Hobbs, 195 Ark. 1026, 15 S.W. 2d 880 (1938); Ford Motor Co. v. Fish, 233 Ark. 635, 346 S.W. 2d 469 (1961). See, also, MFA Ins. Co. v. Pearrow, 245 Ark. 795, 434 S.W. 2d 269 (1968); St. Louis, I.M.&S. Ry. Co. v. Owens, 103 Ark. 61, 145 S.W. 879 (1912). Further, in determining the legal sufficiency of evidence, the testimony of a party to an action who is interested in the result will not be regarded as undisputed. Bridges v. Shapleigh Hardware Co., 186 Ark. 993, 57 S.W. 2d 405 (1933). When we view the evidence in this case according to these well established rules and in the light most favorable to the appellee, as we must do, we cannot say as a matter of law that the evidence is insubstantial that the appellant was following too closely or failed to keep a proper lookout, or failed to keep his vehicle under control. Thus, we find no merit in appellant’s first contention. Appellant next asserts there was no substantial evidence to support a finding that appellee’s decedent was alive following the collision between his Oorvair and the Pontiac and, therefore, there was no substantial evidence that any negligence on the part of appellant caused or contributed to the cause of death of appellee’s decedent. We must agree with appellant on this contention. The appellee’s decedent was found dead in his Oorvair within a few minutes following the second collision. The first collision occurred when appellee’s decedent collided with the oncoming Pontiac. From the physical - evidence, the entire left side of the Pontiac was damaged with a shearing or ripping effect. The left rear door was torn from the car and one of the seven passengers in this vehicle was killed. After this impact the Pontiac continued westward in its proper lane, veering to the right, for 18 feet and then along the shoulder for another 36 feet where it stopped on the edge of the shoulder embankment. The force of this impact, however, reversed the direction of the Oorvair and positioned it in the path of the oncoming vehicle driven by appellant. According to appellant, he-was following the Oorvair at 60 miles por liour, or 88 fool per second, when lie observed flames from the first collision. He applied his brakes and skidded 83Vk feet before colliding with the left front portion of the red Corvair. After this collision, as previously stated, appellant’s vehicle veered to the right and traveled approximately 25 to 30 feet before striking the rear of the stalled Johnson Cadillac, doing slight damage to it. The Corvair, following the second collision, continued in its original or eastward direction and came to rest approximately 50 feet from the Dodge-Corvair point of impact and about 30 feet in front of the stalled Cadillac. The left front portion and door of the Corvair were crushed inward. The driver’s seat was pushed to the right and partially torn loose. The steering shaft and wheel were pushed upward and to the right. The body of appellee’s decedent was found strapped in his seat and lying to the right. He had head injuries, a crushed chest, broken legs and other bodily injuries. The death certificate shows that death was caused by “Brain injury and Internal injuries” as a result of “Head on collision of automobiles.” This is the extent of the medical evidence. There was no damage to the rear or right front or right side of decedent’s vehicle. According to the physical evidence, there was r.ed paint on the bumper and left front portion of appellant’s vehicle. The damage was limited to this area of appellant’s car. Appellant suffered head injuries. Even though we find substantial evidence of negligence on the part of appellant, there was still the burden of proof upon the appellee to establish that such negligence was a proximate or contributing cause of the death of appellee’s decedent. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W. 2d 290 (1963); Kapp v. Sullivan Chev. Co., 234 Ark. 415, 353 S.W. 2d 5 (1962). In Kapp we said: “To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other. ’ ’ See Superior Forwarding Co. v. Garner, supra; Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W. 2d 4 (1948); 22 Am. Jur. 2d, Death §§ 222 and 243. In the recent case of Ellsworth Bros. Truck Lines, Inc. v. Canady, 245 1055, 437 S.W. 2d 243 (1969), we said: “It is not sufficient to show that the injuries suffered might have been caused when appellant’s vehicle hit the rear of the Iieaggan automobile. This causal connection between a plaintiff’s damages and the defendant’s negligence must be established by direct or circumstantial evidence, and it cannot be proved by conjecture or speculation. (citing cases) ” See, also, Prosser on Torts, (3d Ed. p. 245). In the case at bar there is no contention that appellant in anj^ manner contributed to the first collision. From the evidence in this case, we are forced to the view that only by conjecture and speculation could it be said that appellee’s decedent was or was not alive when this second impact occurred and that negligence on the part of appellant was a proximate or contributing cause of the death. Therefore, we must reverse this judgment. However, we do not think that reversal of this judgment requires its dismissal. In St. Louis Southwestern Railway Co. v. Clemons, 242 Ark. 707, 415 S.W. 2d 332 (1967), it was aptly said: “We come now to tlie question of whether this case should be dismissed or remanded. This court has long adhered to the rule so well reiterated in Fidelity Mutual Life Insurance Co. v. Beck, 84 Ark. 57, 104 S.W. 533 and 1102 (1907). The general rule is to remand common law cases for new trial. Only exceptional reasons justify a dismissal. One of the exceptions is an affirmative showing that there can be no recovery. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108 (1892). There it was said that when a trial record discloses ‘a simple failure of proof, justice would demand that we remand the cause and allow plaintiff an opportunity to supplv the defect.’ To the same effect, see Hinton v. Bryant, 232 Ark. 688, 339 S.W. 2d 621 (1961).” In the case at bar there is a deficiency of proof as to whether appellant’s negligence was a proximate cause of decedent’s death. It is not impossible that such a deficiency of proof could be supplied upon a retrial. The appellant next contends, in the alternative, that the trial court erred in modifying, amending, and changing the verdict as returned by the jury. We agree that this also constituted reversible error. However, we do not deem it necessary to discuss this point since this error is not likely to occur again upon a retrial. Reversed and remanded. Fogleman, J., concurs.

Mehaeey, J. Appellant, Ida Harris, owned certain property in El Dorado, Arkansas. On November 16, 1937, appellant filed lier complaint in Union chancery court alleging that she employed and appointed appel-lee, J. D. Gilmore, as her agent to look after her property, collect the rent and keep the taxes paid; that he accepted said agency, took charge of the property, and has had charge ever since that time; that he had collected the sum of $120 or some other sum unknown to the appellant, and he had never accounted to her therefor; that he assumed charge of the property Avith the intent to defeat her of her rights and deprive her of title; he, learning that said property had forfeited for taxes and been sold to the State of Arkansas, Avithout advising appellant, obtained a-deed from the Commissioner of State Lands, and is now claiming to be the owner. Appellee filed ansAver denying that appellant ever placed the property in his hands; denied that he had ever collected any rent or that it was his duty to redeem the property from the tax sale. He admitted that he applied to, the Commissioner of State Lands and paid $29.75 and received a deed on October 27, 1936; admits that he never accounted to appellant, and alleges that after he secured the deed he made improvements on the property amounting to $388.90. The appellant, Ida Harris, testified in substance that she lived in Overton, Texas; that prior to moving there she lived at 907 Raymond Street, on lot 2, block 2, McHenry’s revised addition; that she Avent to Texas in 1931, and came ’back in January, 1936, to get someone to look after her property, because her brother, who had been living on it, had died in the fall of 1935, and that she got appellee, J. D. Gilmore, to look after the property. He was to look after the property, rent it for $5 per-month, and he was to receive one-half of the rent; her brother had been living in her house, and it was not rented at the time he died, and when he died she had no one to look after it, and she employed Gilmore as her agent; after her brother died she came back and made the contract with Gilmore; she told him to pay the taxes and collect the rent; she failed to pay the taxes in 1935 and 1936, 'but paid them in 1934; she wrote Gilmore after she had turned the property over to him inqnirin about it, but he did not answer the letter and did not tell her that the taxes were delinquent; she found that out by her daughter writing her; she wrote him a month or two after she turned the property over to him ir 1936; she then wrote to C. E. Love, county clerk, and lie wrote her about the taxes; when she received this letter she knew the taxes were delinquent for 1932'. She then wrote to Mr. Otis Page wanting to redeem the property and received a letter from him stating that Gilmore had purchased it; that is the way she found out Gilmore had a deed; the taxes were not delinquent when she left here, but were delinquent for 1932. Velma Goodwin testified that she lives in El Dorado; knew Ida Harris and J. D. Gilmore and heard their com versation in January, 1935, about Gilmore looking.after the property; she was with Ida Harris and had started to see Gilmore and passed him, and Ida Harris called him and asked him to look after her property, rent the house, and if anything went wrong to let her know; Gilmore was to have half of the rent; Gilmore agreed to this. J. D. Gilmore, the appellee, testified that he never had a conversation with Ida Harris about the property; did not collect any rents for her; that he put Dismukc in the house in November, 1936; that Dismuke asked who owned the house, and he told him tliat at present he, Gilmore, had a state deed to it; that Ida Harris used to own it, and that it was.all right for him to live in it. The deed to Gilmore was introduced in evidence. Dis-muke lived there quite a while. Ida Harris wrote him a letter in May, 1937, that she heard he was repairing the house. He was asked when was the first time he knew this lot in controversy had been forfeited for taxes; he said he did not know it until he ivent to pay his taxes and found it was delinquent; and had to get the clerk to get it straight; she showed him where the land had gone delinquent, and told him that if he wanted to buy it, then was the time. He wrote to Little Rock and got the deed. The first tenant he placed on the property was Roberta Sherer, who lived on it before Dismuke; Ida I lands gave her permission to move in; he told Dismuke that Ida Harris had owned the place, but he now owned a deed to it. Dismuke testified that he approached Gilmore for permission to move into the property in November, 1936; that Gilmore told him the property belonged to Ida Harris, and that Dismuke stayed there from November to May, and the house was in such condition that he would not pay rent and Gilmore would not repair it; Gilmore told him he would have to pay rent or move out, and Dismuke made some repairs on the house himself. Gilmore told him when he moved in that it was Ida Har-ías ’ property. When he moved out Gilmore showed him the deed, but did not show it to him when he moved in. Roberta Sherer testified that while she lived in the house in the spring of 1934 Ida Harris came and asked her if she would stay until she came back without rent; no one was with Ida Harris, 'but Mary Swarn was with witness; she stayed until the house got so bad she had to move out. Mary Swarn testified that Roberta Sherer moved into the house in 1934 and stayed there until 1936. Ida Harris testified that she was not here in 1934, and that her brother had charge of the property. On March 30, 1938, a decree was entered as follows: “On this the 30th day of March, 1938, this cause coming on to be heard, the same having been continued from Wednesday, March 23rd, the plaintiff being represented by N. 0. Marsh, Jr., and the defendant being represented by T. P. Oliver, trial is resumed, the testimony of witnesses continued • and completed, the court being well and sufficiently advised, doth decree for plaintiff for property charged with four hundred eighteen and 75/100 ($418.75) dollars improvements, less rent at five and no/100 ($5) dollars per month to date of improvements and six and no/100 ($6) dollars since the date of improvements, said property being lot two, block two, McHenry’s Revised Addition to the City of El Dorado, Union county, Arkansas, that said property he charged with improvements thereon in the sum of four hundred eighteen and 75/100 ($418.75) dollars, less rent at five and no/100 ($5) dollars per month to date of said improvements and six and no/100 ($6) dollars since the date of improvements.” Thereafter appellee filed motion for a decree nunc pro tunc. The court then, on June 1, 1938, entered a decree restoring the property to the appellant, hut giving the appellee a lien on the property for the amount of improvements he had put on there, less the rent. The appellant excepted and prayed an appeal to the Supreme Court, which was granted. The appellee states that the only question involved in this case is whether or not the appellee is entitled to recover for certain improvements made on the property. He does not argue that the court erred in decreeing the property to appellant and does not appeal from that decree. The court necessarily found that appellee was the agent of appellant, and this finding is supported by a preponderance of the evidence. Appellee relies on § 13884 of Pope’s Digest which is as follows: "No purchaser of any land, town or city lot, nor any person claiming under him, shall he entitled to any compensation for any improvements which he shall make on such land, town or city lot, within two years from and after' the sale thereof-; for improvements made after two years from the date of sale the purchaser shall he allowed the full cash value of such improvements, and the same shall he a charge upon said land.” Appellee calls attention to a number of authorities construing this statute, some of them holding that the purchaser is entitled to recover improvements irrespective of his belief in the integrity of his tax title and regardless of color of title as reflected by his deed. TEe do not review the authorities construing this statute for the reason that they have no application to the facts in this case. In the cases referred to by counsel, there was no question of fraud or agency involved. In the instant case, the appellee was the agent of the appellant to look after the property, rent it, and pay the taxes. He ascertained that the property had forfeited for the nonpayment of taxes, and he purchased it. We said in a recent case: “Every one, whether designated agent, trustee, servant dr what not, under contract or other legal obligation to represent and act for another in any particular business or line of business or for any valuable purpose must be loyal and faithful to the interests of such other person in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to that of his principal. ‘This is a rule of common sense and honesty, as well as of law. ’ In 21 B-. 'C. L. 825, it is also said: ‘He may not use any information that he may have acquired by reason of his employment, either for the purpose of acquiring property or doing any other act Avhich is in opposition to his principal’s interest.’ See also, Houston Rice Co. v. Reeves, 179 Ark. 700, 17 S. W. 2d 884; Dudney v. Wilson, 180 Ark. 416, 21 S. W. 2d 615, where the court quoted with approval from Trice v. Comstock, 121 F. 620, 61 L. R. A. 176, the following: ‘Every agency creates a fiduciary relation, and every agent, however limited his authority, is disabled from using any information or advantage he acquired through his agency, either to acquire property or to do any other act which defeats or hinders the efforts of his principal to accomplish the purpose for which the agency was established.’ See, also, 2 0. J. 692,” and Lybarger v. Lieblong, 186 Ark. 913, 56 S. W. 2d 760. In the instant case it was the duty of appellee to pay the taxes, and the land forfeited for nonpayment of taxes after appellant moved to Texas, and the appellee purchased from the state. He could not have acquired any interest in the land adverse to appellant’s interest, but his purchase was necessarily for the benefit of the principal, and all that he would be entitled to would be to be reimbursed in the amount he paid for the title. “Also, the agent will not be permitted to acquire for his own use or benefit outstanding claims or liens which are held against the principal’s property, and he will not be allowed, where he is employed to compromise or settle claims against his principal, to purchase the claim involved for himself and enforce them against his principal. An agent found guilty of a breach of duty in this respect will 'be regarded as holding his newly-acquired interests as trustee for the principal, since all rights, title, or interests inure to the benefit of the principal, and the agent may be compelled to transfer them to the latter, and to account for all benefits and profits gained thereby.” 3 C. J. S., p. 13, § 140. In the absence of the principal’s knowledge and consent, an agent in charge of lands or property of the principal cannot purchase and obtain a valid tax title to such land at tax sale. 3 C. J. S. p. 14, § 140. An agent or trustee cannot purchase the property of his principal which has been confided to his care, and if he discovers a defect in the title of his principal, he cannot use his discovery to acquire title for himself. Rogers v. Lockett, 28 Ark. 290; Huffman v. Henderson Co., 186 Ark. 792, 56 S. W. 2d 176; Wright v. Davis, 195 Ark. 292, 111 S. W. 2d 565; Collins v. Rainey, 42 Ark. 531. The decree of the chancery court awarding the property in controversy to the appellant is affirmed. The appellee is entitled to the amount paid for the tax title, but this is offset by the use and benefit of the property, and therefore the decree awarding ;judgment for improvements is reversed, and the cause of action for improvements is dismissed.

David Newbern, Judge. In his first and third points for reversal of his conviction of theft by receiving, the. appellant complains of an unlawful search and insufficiency of evidence to show he knew the lawnmower he received was stolen. We hold the appellant gave valid consent to the search and the evidence of his knowledge was sufficient. In his second point, however, the appellant contends the evidence was not sufficient to show the value of the lawnmower to be over $100, and thus the charge should have been reduced from class C felony to class A misdemeanor. We agree and modify the sentence accordingly. I. Edgar Sharp testified he and the appellant had a conversation in the presence of customers at Smith’s Grocery, where Sharp was employed, in which they discussed the appellant’s desire to buy a riding lawnmower. The appellant told Sharp he wanted one and would pay $300 for a good one. No testimony showed the appellant asked Sharp to steal a mower or that Sharp said that was the manner in which he proposed to obtain one for the appellant. Sharp said he had a couple of boys who were “in the business” and thus could supply the mower. He further testified he asked David Jansen to steal a mower belonging to Mrs. Spoon and deliver it to the appellant’s home place which he pointed out to Jansen. Jansen’s testimony confirmed that he was procured by Sharp to steal Mrs. Spoon’s mower. He, in turn, invited his friend, Steve Shelton, to help. Sharp paid Jansen $100, and Jansen paid Shelton $50. Jansen testified that after he and Shelton took the mower from Mrs. Spoon’s yard, they delivered it to the appellant’s place, unloaded it beside the appellant’s barn and covered it with hay. Jansen testified the appellant’s mobile home was situated about 50 yards from the barn. It was after dark when the delivery was made, but there was a light at the mobile home, and someone came out of it while they were unloading the mower. The apparent intention of the appellee in eliciting this testimony was to show the occupant of the mobile home knew the delivery was taking place. Shelton also testified, confirming Jansen’s story about the delivery and adding that there was a gate on the appellant’s property through which they had to pass and that the gate was “down.” Another witness said the appellant’s gate was usually closed because he kept livestock inside the fence. Our conclusion is that this evidence was sufficient to show the appellant knew the mower, of which he was later found in possession, was stolen property. We agree with the appellee’s conclusion that the fact the lawnmower was covered with hay upon delivery would be sufficient to show the appellant knew he was not involved in a regular business transaction. This evidence was at least sufficient to make a jury question. Mrs. Spoon reported her mower stolen on September 21, 1978. On October 11, 1978, Mrs. Spoon’s mower was found at the appellant’s property. Possession of recently stolen property, if not satisfactorily explained to the jury, is sufficient to sustain a conviction. Patterson v. State, 253 Ark. 393, 486 S.W. 2d 19 (1972). See also, Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73 (1967). Although the appellant presented an explanation that he had purchased the mower from someone whose name he did not know, the jury apparently found the explanation unsatisfactory. It was the jury’s responsibility, of course, to evaluate the credibility of the witnesses. Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975). II. The search of which the appellant complains occurred when a state police investigator and a deputy sheriff went to the appellant’s home. They had information from Jansen and Shelton that the mower had been left at a place meeting the description of the appellant’s. The deputy said he recognized their description as being of the appellant’s property. Upon their arrival, according to the investigator’s testimony, they informed the appellant they were there “checking on a lawnmower,” and the appellant explained how he had recently purchased a mower. He told them two conflicting stories, however, as to where he had purchased it. When he was asked if the investigator and the deputy could look at the mower, he readily assented and took them outside to see it. The appellant was not arrested at that time although the serial numbers on the mower were found to be the same as those on Mrs. Spoon’s missing machine. No warnings were given to the appellant at any time during this visit, nor was he advised of his right to withhold his consent to the “search.” The state police investigator testified he did not suspect the appellant at that time. The deputy, who admittedly knew less of the details of the case at that time, said at one point in his testimony that he suspected the appellant of a crime when he went to the appellant’s place. The appellant cites a number of cases dealing with the traditionally produced evidence of involuntariness of consent, i.e., coercion by threat or promise. They need not be dealt with here, however, as there is no serious contention the consent was coerced. The contention, rather, is that the lack of a showing by the appellee that the appellant knew of his right to refuse to permit the warrantless search makes his consent other than “knowing and voluntary.” The appellant acknowledges that knowledge of the right to refuse has been held to be only one factor in determining voluntariness as required by the fourth and fourteenth amendments to the U.S. Constitution. Watson v. U.S., 423 U.S. 411, 96 S. Ct. 820 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973). Those cases also hold proof by the prosecution of knowledge of the right to consent is not necessary to a showing of.voluntary consent sufficient to satisfy the U.S. Constitutional requirements. There certainly was no evidence here of any kind of oppression or promise which would cause us to hold the consent to have been involuntary when combined with the lack of proof of knowledge. The appellant seems to admit there was no violation in the “traditional” sense of his rights under the fourth and fourteenth amendments, but on the other hand he seems to argue that there was some requirement he be advised of his right to refuse consent just as he could have asserted a right to be advised of his right to remain .silent if he had been a suspect. Any such contention that the U.S. Constitution imposes that requirement, is laid soundly, logically and emphatically to rest in the Schneckloth Case, supra, in which the U.S. Supreme Court made it clear that the warning rights associated with confessions and trial safeguards may not be transferred to the context of consensual search. The Schneckloth Case has been cited by the Arkansas Supreme Court on several occasions. In Enzor v. State, 262 Ark. 545, 559 S.W. 2d 148 (1978), Judge (then Justice) Howard cited it to show there was no requirement of a showing of knowledge of the right to refuse consent to search where there was a showing of consent. Earlier, in a dissenting opinion, Justice Byrd had mentioned that it held a “Miranda warning” was not required in such a case. Byars v. State, 259 Ark. 158 at p. 183, 533 S.W. 2d 175 at p. 188 (1976). Although the Enzor Case might be deemed sufficient to cover the matter, the Arkansas Supreme Court has not had occasion to decide whether it will go beyond the requirements of the fourth and fourteenth amendments and say some other rule or sense of fair play requires a person whose property is to be searched be told he need not consent. We are persuaded there should be no such requirement. In the Schneckloth Case, Mr- Justice Stewart’s opinion, in addressing the suggestion that advice of the right to refuse be regarded as a prerequisite to consensual search, said the following: That, however, is a suggestion that has been almost universally repudiated by both federal and state courts, and, we think rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial, where, assisted by counsel if he chooses, a defendant is informed of his trial rights. Arid, while surely a closer question, these situations are still immeasurably far removed from “custodial interrogation” where, in Miranda v. Arizona, we found that the Constitution required certain now familiar warnings as a prerequisite to police interrogation. [412 U.S. at 231-232, citations and footnotes omitted] As we find this language and general approach highly persuasive, we approve the conduct of the officers in this case and find no violation of any constitutional right or fairness ethic resulted from the lack of advice as to the right to refuse to consent to the search. III. The appellant was convicted of a class C felony for violation of Ark. Stat. Ann., § 41-2206 (Repl. 1977). To prove a class C felony the state must show the value of the property to be in excess of $100. If the property is shown to have some value but less than $100, theft by receiving it becomes a class A misdemeanor. The proof of value here included (1) Mrs. Spoon’s testimony the lawnmower was inoperable and she considered selling it for $50 or $75; (2) Sharp’s testimony that the appellant was to pay $300 for the mower; (3) a ledger sheet showing the mower was purchased for $537.90 some four years before it was stolen; and (4) testimony of a mower repairman that the mower could be worth more or less than $100, depending on its condition. The burden was on the appellee to show the value of the mower to be in excess of $100. Lee v. State, 264 Ark. 384, 571 S.W. 2d 603 (1978); Rogers v. State, 248 Ark, 696, 453 S.W. 2d 393 (1970). Viewing the evidence most favorably to the appellee, we find it not sufficient to form a basis of a factual determination that the mower was worth more than $100. The 1974 price was too remote. Cf., Cannon v. State, 265 Ark. 270, 578 S.W. 2d 20 (1979), and Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810 (1972). The price agreed to by the appellant for a mower he had neither seen nor even had described to him is not relevant to establishment of a market price, or cost of replacement. Ark. Stat. Ann., § 41-2201 (11) (a) and (b) (Repl. 1977). The testimony of the repairman became virtually worthless when, having testified on direct examination the mower was worth $100, he answered “possibly” to a question on cross examination whether the mower might be worth more or less than that amount. The evidence supported conviction for theft by receiving of property of some value but less than $ 100. The error in overruling the appellant’s motion at the end of the state’s evidence to reduce the charge to a class A misdemeanor will be cured by reducing the sentence from confinement in the state penitentiary for three years to confinement of one year in a place to be determined by the circuit court and reduction of the fine from $3000 to $1000. Cannon v. State, supra. Affirmed as modified, and remanded for determination of the place of confinement.

George Rose Smith, Justice. The controlling question is whether the four appellants, as “Trustees for the Churches of the City of Stuttgart,” are proper parties to apply to the county judge of Prairie County for a permit t to establish a cemetery upon a 4.64-acre tract of land in Prairie County. Section 1 of Act 204 of 1929, compiled as Ark. Stat. Ann. § 82-401 (Repl. 1976), provided that any party or parties proposing to establish a cemetery could apply to the county judge for a permit to do so. That statute, however, has largely been superseded by later acts — most recently by Act 352 of 1977, which creates the Arkansas Cemetery Board and requires that permits for the establishment of new cemeteries be obtained from that board. § 82-426.4 and 82-426.7 (Supp. 1977). The 1977 act, however, does not apply to cemeteries owned and operated by “a church or similar religious organization.” § 82-426.3. Hence the appellants might be entitled to apply to the county judge, instead of to the Cemetery Board, for a permit if the proposed cemetery is to be owned and operated by a church or similar religious organization. The circuit court, in this action by the appellants for a writ of mandamus to compel the county judge of Prairie County to issue a permit for the proposed cemetery, held that the appellants are not entitled to proceed under the exception in the 1977 act, because the cemetery would not be owned and operated by a church or similar religious organization. In view of the particular facts in the case we are compelled to agree with that conclusion. The effort to establish the proposed cemetery apparently began with a resolution adopted by the city council of Stuttgart on December 30, 1976. That resolution authorized the mayor to execute a deed conveying 4.64 acres owned by the city in Prairie County “to a Grantee selected by the churches of this community.” The resolution provided that the grantee would hold the land as trustee for those churches and would make application to the State of Arkansas for a cemetery permit. J. W. Green, Jr., a Stuttgart attorney attempting to aid the project, published a newspaper notice that a meeting would be held in the courthouse on March 6, 1977, for the purpose of selecting trustees to hold title to the land in accordance with the city council’s resolution. The notice was addressed to 30 named churches, and a copy of the notice was also mailed to those churches. Representatives of six churches attended the meeting and elected the four appellants as trustees. On March 16, 1978, the city conveyed the 4.64-acre tract to the appellants “as Trustees for the Churches of the City of Stuttgart, Arkansas.” The trustees then applied to the county judge of Prairie County for a permit and later brought this action against him for a writ of mandamus. The insurmountable difficulty in the appellants’ position, as we view the case, is that the proposed cemetery will not be owned and operated by any particular church or churches. The 1977 act contemplates that new cemeteries will ordinarily be established by cemetery companies, as defined in Section 82-426.2. An application for a permit to establish a new cemetery must contain detailed information, including a provision for a permanent maintenance fund for perpetual care of the cemetery. § 82-426.7. There are also provisions for regulation of the investment of a cemetery company’s funds and for the keeping of necessary records. §§ 82-426.14 and -426.17. ¡n short, the act attempts to protect the public by provisions designed to promote the stability and solvency of cemetery companies. We must consider the act as a whole in arriving at the purpose and intent of the section which exempts from the provisions of the act a cemetery that is owned and operated by a church or similar religious organization. The legislature evidently believed that an existing church, owning and operating a cemetery, would provide a measure of stability and solvency comparable to that which the legislature sought to insure with respect to cemetery companies in general. Thus a church may own and operate a new cemetery, by permission of the county judge, but there is no similar provision for one or more individuals to do so. Yet, essentially, the appellants are four individuals who seek to own and operate the proposed cemetery on the tract provided by the city. They were elected as trustees by representatives of several Stuttgart churches, but no identifiable church has seen fit to assume responsibility for the care and maintenance of the new cemetery. Thus the proposal, however well motivated, does not meet the statutory requirement that the proposed cemetery be owned and operated by a church or similar religious organization. The circuit court was therefore correct in holding that the appellants are not proper parties to compel the county judge to issue a permit for the establishment of the cemetery. Affirmed. We agree. Harris, C.J., and Byrd and Hickman, JJ-

Lyle Brown, Justice. This is an appeal by Billy Gross from a conviction of second degree murder and a sentence of twenty-one years, which punishment was imposed as the result of a second trial which began on October 7, 1968. The principal attack upon the verdict is based upon the admission of evidence which showed that Gross remained silent in the face of a statement accusatory in nature made in his presence by an alleged accomplice. Other points for reversal are based upon the admission into evidence of certain photographs, testimony given at the first trial by a doctor who was absent from the State at the time of the second trial, and the reception in evidence of various items showing the presence of blood. The State produced eyewitness evidence of an orgy of drinking, fighting, and sexual acts which occurred at the home of Frank A. Birch in the Hattieville commun ity, Conway County, on the night of Saturday, September 28, 1963, and which culminated in Birch’s death. Birch was better known as Dutch Chartan. As did the witnesses, we will refer to him as Dutch. According to the State’s evidence, two couples assembled in North Little Rock early that Saturday night. They were Billy Gross, Dollie Jean Roberts, Benjamin AVinegart, and Beverly AVllkerson. After procuring some whiskey and wine the two couples motored to Hattieville, some sixty miles distant. They first visited briefly at the home of Billy’s mother. From there they drove to the home of Dutch Chartan, with whom Billy and Dollie Jean were well acquainted. The party first engaged in licentious dissipation with all five participating. The festivities culminated in a fight. Billy is said to have called Dutch vile names and accused Dutch of “snitching” on him. Dollie Jean testified that Billy announced his intention to kill Dutch; that Billy struck Dutch with a stick of wood, cut on Dutch’s throat with a pocket knife, and then procured a saw and “started sawing his throat.” She testified that the blows from the stick felled Dutch near a stove and that he remained there. The two couples were said to have left the premises shortly before dawn Sunday morning; they went back to the home of Billy’s mother and slept uutil midafternoon. Upon arising they returned to Dutch’s house, assertedlv to procure more liquor. Gross and AVinegart entered the house and stayed for some time. AVhen they returned to the car the two couples drove back to North Little Rock. On the return trip Gross allegedly told the women to get together on a.story that they had not been with Gross and AA7inegart and that Gross stated further the men would probably he out of the State by night. Sheriff Marlin Hawkins, in response to a call, went with other officers to the home of Dutch Chartan that Sunday night about eleven o’clock. In the disheveled house they found Dutch’s body. One or two sticks of wood and a coke bottle and a saw were observed to be stained with a red substance which appeared to be blood. There was also a towel and a pan of water, both of which contained a reddish substance. An all-points bulletin was circulated on Gross and Winegart and they were shortly apprehended in Lubbock, Texas. Sheriff Hawkins returned them to Morrilton, the county seat. Other facts pertinent to the appeal will be related as the points for reversal are discussed. We will not burden the opinion with much of the voluminous evidence introduced because the sufficiency of the evidence to sustain a conviction is not in question. The first two points for reversal are concerned with what is commonly called the “tacit admission rule.” Sheriff Hawkins testified that on the return trip from Lubbock, Benjamin Winegart started talking about the incident. The sheriff said he thereupon advised both Winegart and Gross that they were not being asked to discuss the charges, that any statements bjr them could be used at the trial, and that they were entitled to consult an attorney before making any statements. Winegart is said to have stated that they did not know they had killed Dutch until the officers arrested them in Lubbock. Another conversation allegedly occurred at the jail in Morrilton some few days after Winegart and Gross were incarcerated. At that time they were together in a cell “no larger than a jury box.” Sheriff Hawkins had learned that on their flight from North Little Rock to Lubbock, the men came through Morrilton, which was not on a direct route between the first named cities. Hawkins said he told Winegart and Gross at the jail that he was curious to know why they went out of their way to come by Morrilton. He testified that Winegart answered by saying that Gross intended to proceed to Hattievilie, a short distance north of Morrilton, to the home of Dutch Chartan, and burn the building — “the building' in which Chartan’s body was at:” Winegart said he dissuaded Gross from that plan while they were eating a sandwich at Morrilton, and they proceeded to drive to Lubbock. Sheriff Hawkins testified that Gross could not help hearing the damaging statements made by Winegart and that Gross made no response. The fact that Gross remained silent in the face of Winegart’s statements was admissible in his first trial in 1964. Moore v. State, 229 Ark. 335, 315 S.W. 2d 907 (1958); Martin v. State, 177 Ark. 379, 6 S.W. 2d 293 (1928). The 1964 conviction, which carried a life sentence, was set aside by the federal court on a finding that Gross had been denied his constitutional rights with respect to having an appeal perfected. Gross v. Bishop, 273 F. Supp. 992 (1967). It was there held that the denial of due process could not be corrected except by new trial. Prior to the second trial came the decisions in Miranda v. Arizona, 384 U.S. 436 (1966); and Johnson v. State of New Jersey, 384 U.S. 719 (1966). This rule affecting tacit admissions was stated in Miranda: “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The ])rosecution maA7 not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Then followed the pronouncement in Johnson Avhich said Miranda should apply only to cases commenced after Miranda was announced; and it was also stated that the Miranda guidelines “are therefore available only to persons whose trials had not begun as of June 13, 1966.” This brings us to the vital question in this case, namely, whether Miranda applies to the 1968 retrial. The question is treated exhaustively in State v. Branch, 161 S.E. 2d 492 (N.C. 1968). There it is emphasized that ihe Avliole tenor of Miranda is prospective in application, not retroactive. Branch cited with approval the case of Jenkins v. State, 230 A. 2d 262 (Del. 1967). Jenkins summarizes the view of that court in these words: It is our opinion that Miranda should not apply at retrial, notwithstanding the fact that it will be held after the June 13, 1966 effective date of Miranda. We think it neither logical nor reasonable that the retrial should be conducted under rules different from those prevailing when the cases were tried the first time. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), the United States Supreme Court stated: “We hold further that Miranda applies only to eases in which the trial began after the date of our decision [June 13, 1966] * * Although de novo, a new trial is not a new case; it is a continuation of the original case until the judgment is final. In our opinion, Johnson refers to “cases” the original trial of which commenced after June 13, 1966. Neither Miranda nor Johnson, in our view, requires the courts of this State to make applicable upon retrial the Miranda rules which were not applicable at the original trial. In aligning with the view expressed in Jenkins we are not unmindful of the provisions of our Criminal Code which provide that a subsequent trial shall be de novo. Ark. Stat. Ann. § 43-2205 (Repl. 1964). New York has the identical provision. Its appellate court recently held that upon retrial after Miranda, the confessions used in the first trial before Miranda, and which were inadmissible under Miranda, were nevertheless admissible on retrial. In disposing of the argument that the de novo provisions of the New York Code prohibited the use of the confessions on retrial, the court said that “the crucial factors in determining whether Johnson v. State of New Jersey applies here are considerations of policy and not labels. These sections are, therefore, totally irrelevant to the decision which we must make.” People v. Sayers, 293 N.Y.S. 2d 769 (1968). State appellate courts are not unanimous as to whether Miranda applies to retrial of a case originally tried on the merits before June 13, 1966. Numerically it can be approximated with reasonable certainty that a small majority of those courts passing on the question hold that Miranda does not so apply. Other than the three state jurisdictions heretofore cited, these cases from other state appellate courts are in agreement with the cited cases: Chapman v. State, 162 N.W. 2d 698 (Minn. 1968); Sims v. State, 156 S.E. 2d 65 (Ga. 1967); People v. Worley, 227 N.E. 2d 746 (Ill. 1967); State v. Vigliano, 232 A. 2d 129 (N.J. 1967); Burnley v. Commonwealth, 158 S.E. 2d 108 (Va. 1967); Hall v. Warden, 434 P. 2d 425 (Nev. 1967); Boone v. State, 237 A. 2d 787 (Md. 1968); and Murphy v. State, 426 S.W. 2d 509 (Term. 1968). It is insisted that the court erred in admitting four photographs in evidence. The State offered ten pictures depicting the room in which Dutch Clxartan met his death. The court admitted only four of the photographs. AYe are unable to say that the court abused its discretion. The four views of the room and the body could well have supported two theories of the State. The alleged instruments of attack were revealed by the j>ictures. Secondly, the State claimed that Gross and his companion returned to the scene, positioned Dutch’s body and endeavored to clean his face of blood. The manner in which the body is depicted could be said to support the latter theory. The admission, relevancy, and materiality of the photographs are largely within the discretion of the trial judge. If they are accurately taken, show a correct representation of the subject matter, and can be said to be of aid to the jury, they are usually admissible. Higdon v. State, 213 Ark. 881, 213 S.W. 2d 621 (1948). The point is without merit. Another point concerns the reading by the State of the testimony given by Dr. Roy Hoke in the 1964 trial. He was the pathologist who performed the autopsy on the deceased. In offering that testimony the State met the requirements of Ark. Stat. Ann. § 28-713 (Repl. 1962). Appellant’s only contention is that his court-appointed attorney did not have time to prepare for the examination of this medical witness at the first trial. We find no evidence in the record to sustain that contention. The trial court permitted Sheriff Hawkins to testify that certain sticks of wood, a coke bottle, a pan of water, and a towel, contained a reddish substance similar to blood. The court also permitted the introduction of all of these items except the pan of water, which was not available. The final point on appeal questions the propriety of the. fore-going evidence. We think the intention is clearly without merit. The State produced other evidence that a terrific fight had taken place. There was direct testimony that sticks of wood were used in the affray. There was no direct testimony that the bottle was utilized, nor was there direct evidence that it was not used. An analysis of the items enumerated revealed the reddish coloration to be human blood. There was direct testimony that deceased was struck with sticks of wood. There was also evidence that blood had been cleaned off the victim’s face between the time of the beating and the moment the officers found him. It is true that the blood to which Sheriff Hawkins testified, or at least some of it, could have come from other participants in the affray. On the other hand, the fact that the deceased’s body showed evidence of being beaten and cut, and possibly by the instruments introduced, would justify the jury in believing that some of the blood probably came from the body of the deceased. Considering the fact that the instruments introduced, together with their condition, would tend to support the State’s theory that Hutch was severely beaten, we cannot say the trial court abused its discretion. See Glover v. State, 194 Ark. 66, 105 S.W. 2d 82 (1937). Affirmed. Byrd, J., not participating.

McíIaNey, J. Appellees brought this action at law, in unlawful detainer, against one Henry Strange to recover the possession of a tract of land, described in the complaint as: “The place known as the Holt Bend Place, being all of the fractional section 12, township 9 north, range 4 west, in Woodruff county, Arkansas.” They alleged that they were the owners thereof with all improvements, and had rented same to Strange as tenant; that the tenancy terminated December 31, 1933; and that although written demand for possession had been made according to law, he refused to surrender same. Strange answered, denying that appellees had title lo said lands, and alleged title in appellant, who, by leave of court, intervened in said action claiming title thereto by virtue of a patent from the United States, dated October 17, 1934, being No. 172763. The case was transferred to the chancery court. Appellees answered the intervention and pleaded adverse possession for more than seven years, since March 18, 1929, and payment of taxes in bar of appellant’s right of recovery. Trial resulted in a decree dismissing appellant’s intervention for Avant of equity, from Avhicli is this appeal. The facts are undisputed and are as folloAvs: On September 28,1850, Congress passed an act entitled “An act to enable the State of Arkansas and other states to reclaim the ‘Sivamp Lands’ within their limits,” Avhich made a grant to the state of all the ‘‘Sivamp and Over-floAved Lands” remaining unsold at the date of the passage of said act. Pursuant to the request of the Governor of Arkansas, of October 20,1853, and in accordance with said act, a patent dated August 26, 1859, was issued to the State of Arkansas by the President and the Recorder of the General Land Office to “The AAdiole of fractional section tiveLe east of White River in township nine (9) north of the Base Line, in range four (4) west of the Fifth Principal Meridian in Arkansas, according to (he official plats of survey of the said lands, returned to the General Land Office by the Surveyor General . . .” This tract of land, according to the plat of the original government survey of 1845 contained 97.81 acres, divided into three tracts containing 44.87 acres, 50.39 acres and 2.55 acres, which plat is on file in the land office of this state. Although said patent was dated August 26, 1859, title to the land passed to the state in praesenti as of the date of the Act of September 28,1850. In Rogers Locomotive Mach. Works v. American Emigrant Co., 164 U. S. 559, 17 S. Ct. 188, 41 L. Ed. 552, it was said: “While, therefore, as held in many cases, the Act of 1850 was in praesenti, and gave an inchoate title, the lands needed to be identified as lands that passed under the Act, which being done, and not before, the title became perfect as of the date of the granting- Act. ’ ’ Wo it will be seen that the title of the Government to the whole of fractional section 12 east of White River in township 9 north, range 4 west, as surveyed and. platted, passed to the State of Arkansas by the patent of August 26, 1859, and related back to the date of the “Swamp Land Grant,” September 28,1850. Title of the state passed from it in two conveyances, one to H. P. Clingman in 1856 to the southwest quarter thereof and the other to John S. Lowery in 1854 to the southeast quarter thereof and through mesne conveyances to appellees, to them by a commissioner’s deed in foreclosure proceedings against J. H. Holt. In 1929, the commissioner of the general land office caused these and other lands to be resurveyed and the plat of such resurvey was accepted June 18, 1931. This new ■ survey platted said fractional section 12 east of White River into four lots as follows: Lot 1, 22.61 acres; lot 2, 46.75 acres; lot 3, 51.64 acres, and lot 4, 38.97 acres, making a total acreage of 159.97, instead of 97.81 acres as shown by the plat of the original survey, or a difference of G2.16 acres. This increase in acreage over the original survey may be accounted for in part at least to error in the original, or to a moving of the left bank meander line of White River further east on the east-side of the tract, which fact is shown by the re-survey. On July 27, 1932, appellant, as successor to the Cairo & Pulton Railroad Company, filed its primary limits list with the general land office under the acts of Congress of February 9, 1853 (10 Stat. 155) and July 28, 1866 (14 Stat. 338), claiming the right to a patent to said lots 1, 2, 3, 4, section 12, in the bend of White River, and other lots, as shown by the plat of the re-survey, accepted June 18, 1931. On May 22, 1934, appellees filed a protest against said list and claimed title to lots 1, 2, 3 and 4 of said section 12 under the old description, and erroneously stated that the IT. S. Government had issued patents to Clingman and Lowery, whereas the patent therefor was issued to the state and from the state to said Clingman and Lowery. They asserted that the land claimed by them was the identical land covered by the lot description in said re-survey. The acting assistant commissioner overruled the protest of appellees and dismissed same, subject to the right of appeal within-thirty days, but no'appeal was taken. In doing so, he said: “Pursuant to an examination in the field this land was held to have been erroneously omitted from the original survey of the township as shown on the official plat approved January 20, 1845. A dependent re-survey and extension survey of the omitted land was made in November, 1929, and plat thereof was approved on April 8,1931, and accepted June 18,1931.” Again he said: “Said lots 1, 2, 3, 4, section 12, are in a bend of the White River. The land in this bend was, in accordance with the said plat of 1845, known as fractional section 12, east of White River. Fractional section 12, east of White River, 97.81 acres, being three lots east of White River, was approved to the state on July 28, 1853, in a state swamp selection under the act of September 28, 1850 (9 Stat. 519) pursuant to which patent No. 7 issued on August 26, 1859. Lots 1, 2, 3, 4, said section 12, on the plat of April 8, 1931, is in. the said bend of the river and contiguous to fractional section 12, east of White River, according to the said plat of 1845. No such land as that described by the protestant as patented to Lowery and Clingman could be either identical with or contiguous to any part of fractional'section 12, east of White River, 97.81'acres.” There cannot be any doubt that the land known as fractional section 12, east of White River, as surveyed and platted in 1845, is in the same bend in White River and is the same land re-surveyed in 1929 and platted April 8, 1931, except the additional acreage surveyed in the latter survey. In other words, the plat of 1931 covers all the land on the plat of 1845 and 62.16 acres more, caused either or both by an error in the survey of 1845 or by accretions to the land surveyed and platted in 1845. In either case the Government had no right to make the re-survey of 1929 as reflected by the plat of 1931. It was without the power thus to disturb vested rights of bona fide owners. A clause in the act of'March 3, 1909 (35- Stat. 845), as amended by joint resolution approved Jane 25, 1910 (36 Stat. 884), reads: “That no such resnrvey or retracement shall he so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement. ’ ’ Similar protection. is given to the rights of claimants under the provisions of the act of September 21, 1918 (40 Stat. 965).. If these statutes do not prohibit the very thing- done in this case, then they are meaningless. 'By this resurvey and the action of the general land office, pursuant thereto, land, the ■ title to which had been out of the Government since 1850 and in the state and her gr.antees since that time, is attempted to be swallowed up by an illegal survey and conveyed.to appellant. No such power was given the general land office and none could be given. In the early case of Rector v. Gaines, 19 Ark. 70, it was held, to quote a headnote, that: “A sale of the public lands, by the executive of the federal government, before the public surveys, may be treated as void: But if the public survey be regularly made, returned and approved, a sale would be valid, although the survey be defective or erroneous, if such defect does not render the identity of the tract uncertain as to locality or quantity.” In State of New Mexico v. State of Colorado, 267 U. S. 30, 69 L. Ed. 499, 45 S. Ct. 202, the Supreme Court of the United States held, that after the land department has surveyed and disposed of public lands, rights therein acquired are not affected by corrective surveys' subsequently made by the department. It has been held that the courts may correct original United States surveys that have been upheld by the land department and overthrow the credit due as established by field notes, where the evidence is clear and convincing. Blair v. Brown, 17 Wash. 570, 50 P. 483. We are not unmindful of such cases as Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., 232 U. S. 186, 58 L. Ed. 564, 34 S. Ct. 297, and Lee Wilson & Co. v. U. S., 245 U. S. 24, 62 L. Ed. 128, 38 S. Ct. 21, holding to the effect that where, through fraud or error, land is excluded from a survey of public land by a meander line, the land department, on discovering the mistake, may deal with the excluded area, cause it to be resurveyed and dispose of it. No such situation exists in the case at bar. The resurvey here involved is a resurvey of land already surveyed and sold- according to the plat of that survey which covers the whole of fractional section 12 east of White River. It purports to cover all of said fractional section. No part of it is omitted from the original survey. The increased acreage shown by the resurvey, if due either to error or accretions, could not justify a resurvey and destroy vested rights of more than three quarters of a century. For these reasons the resurvey was without authority of law and the decision of the acting assistant commissioner was, therefore, without binding effect, since there was no jurisdiction in him or his office to determine the questions presented. .The decree of the court dismissing appellant’s intervention for want of equity is affirmed.

M. Steele Hays, Judge. Carl Don Smith was tried and convicted of possession of merchandise stolen from the grocery store of Gerald Mason. The jury imposed a sentence of two years imprisonment. For reversal, appellant urges that his motion to suppress certain evidence should have been upheld as having been seized by a private citizen acting as an agent of the police and conducting a search without a warrant. Testimony at the hearing on the motion established that Gerald Mason discovered that his grocery store had been broken into when he arrived to open for business. White plastic trash bags were strewn around, and Mr. Mason found that shotgun shells, rifle cartridges, cigarette cartons, meats and other merchandise were missing. The sheriffs office investigated and the deputy gave the names of several possible suspects to Mason, including Carl Don Smith and Vernon Hightower. Mason was instructed to call the sheriffs office if he. discovered any leads or heard anything. Mason and a cousin undertook their own investigation later that dáy and watched Smith’s trailer from a distant point. As they watched, Smith and Hightower came out of the trailer carrying plastic trash bags and placed them in the back of an automobile parked in appellant’s driveway. Mason and his companion confronted appellant and through an open door of the automobile could see some of the contents of the bags, which Mason recognized as his own goods. Mason held Smith at gun point and took him to the grocery store in the automobile, at which point Smith and the goods were delivered over to the sheriff. On this proof, Smith contends that the search was instigated at the suggestion of the deputy sheriff and, therefore, the seizure of the articles was in violation of Fourth Amendment guarantees. It is recognized that the search-and-seizure clauses of the federal and state constitutions are restraints upon the government and its agents and not upon private individuals. Walker v. State, 224 Ark. 1150 (1968); United States v. Harvey, 540 F. 2d 1345 (1976). The rule, however, differs where such searches and seizures are instigated or encouraged by the police and in such instances the restraints do apply, “as the construction to be attached to the Fourth Amendment does not permit of evasion by circuitous means. The protection thus afforded may be violated just as effectively through the intervening agency of one not a policeman.” People v. Evans, 49 Cal. Rep. 501 (1966). The legal principals need not be considered except in passing, as appellee agrees with the asserted law, considered at some length in 36 A.L.R. 3d 350, but argues that the facts do not bring the principal into play in the case before us and we agree. The deputy did not accompany Mason in the surveillance of Smith’s trailer; he did not participate in the activities at the trailer and so far as the record reflects, he was not even aware that Mason was planning any action of this type. The sum and substance of the deputy’s role in the events was to instruct Mason to get back in touch with him if he had any leads or heard anything. We are unwilling to go to the extent of inferring from this slender evidence that the deputy instigated the search and seizure, or even suggested it. It is clear to us that the activity challenged by the motion to suppress was the product of an independent foray by Mr. Mason as a private citizen, rather than as an instrument of the sheriff’s office. We find no case, nor has appellant provided one, in which the rule of law stated above has been applied to facts similar to those of this case. Indeed, it would strain logic to the breaking point to hold that a police officer could instruct the victim of a theft to get back in touch with him if he had any leads or heard anything and by so doing invoke an agency by which the police were bound, in whatever fashion the private citizen subsequently chose to act. Finally, while our decision on the first point obviates the need to consider the second, we do observe that had the facts and the law met in this case, that is, assuming that Mason was an agent for the sheriff. Nevertheless, his conduct in the matter does not constitute an unlawful search and seizure. Mason and his companion observed Smith and Hightower carrying the trash bags from the trailer to the automobile, and, upon going on to the yard or driveway, they saw the stolen goods through an open door of the vehicle. We could not justifiably hold on this evidence that the Fourth Amendment had been violated. Affirmed.

Frank Holt, Justice. Appellant was charged with “overchecking” or giving a $69.71 check without sufficient bank funds. Ark. Stat. Ann. § 67-720 (Supp. 1977). The jury found her not guilty by reason of a mental disease or defect. About a week later, pursuant to Ark. Stat. Ann. § 41-612 (1) (Repl. 1977), the court conducted a post-acquittal hearing and found that appellant was not then affected by mental disease or defect and did not present a danger to herself or to another person or to the property of others. The court discharged appellant from custody with respect to this case. However, since there were numerous outstanding local felony warrants for the same offense against appellant, she was ordered delivered to the local sheriff. Appellant asserts that the court erred in discharging her rather than ordering her committed to the custody of the director of the State Hospital to be placed in an appropriate institution. This is an issue of first impression. § 41-612 provides that when a defendant is acquitted on the ground of a mental disease or defect, the court shall order her committed to the Director of the State Hospital if the court finds the defendant is affected by mental disease or defect and presents a risk of danger to himself or to the person or property of others. If the court finds the defendant is affected by mental disease or defect and, however, no longer presents a danger to himself or the person or property of others, it shall order him discharged or released on such conditions as the court deems appropriate. The court may base its findings on the psychiatric report submitted prior to trial pursuant to § 41-605, the medical evidence presented at trial, or medical evidence submitted at a separate post-acquittal hearing. Whatever the basis for the court’s findings, the burden is upon the state to prove, by a preponderance of the evidence, that the defendant should be either committed or conditionally released. The Commission, in drafting this statute, rejected the suggestion that all persons found not guilty by reason of mental illness should be hospitalized, if at all, under normal civil commitment laws. Commentary, Ark. Stat. Ann. § 41-612 (Repl. 1977). Here at the post-acquittal hearing, appellant did not resist commitment. To the contrary, she sought the assistance of the court, urging it to commit her for her own good. Dr. Jenkins, the state’s witness testified at trial that he diagnosed appellant as having a hysterical personality disorder. He stated that a personality disorder is a disorder “in which one’s general functioning is beyond the realm of normality and it’s a life-long kind of pattern . . .” In his opinion appellant has the capacity to conform her acts to the requirements of the law, and she appreciates the criminality of her conduct. However, when faced with a crisis situation, her judgment goes totally “kaput.” Her mental defect is certainly contributory. He recognized that appellant has a longstanding history of psychiatric difficulties which contribute to her behavior. Dr. Finch, a defense witness, testified that he diagnosed appellant as psychoneurotic with severe chronic depression, self-destructive acting-out behavior, some obsessive compulsive component, and a great deal of anxiety. Psychoneurosis is a mental disease. He felt that, although appellant could appreciate the criminality of her behavior, the particular crime involved here was a result of her neurosis or mental disease. He repeatedly stated that appellant was “crying for help.” She had attempted suicide 3 times. However, he indicated that she had, in his opinion, two conflicting traits since she was a teenager; she has a very low self-esteem so that she seeks punishment and cries out for help at the same time. He also stated that imprisonment would not be of any help in the treatment of her illness unless she receiv ed psychiatric treatment. It is undisputed that appellant has intermittently been under psychiatric care during the past 5 years. The court, following the post-acquittal proceeding, stated that “the problem in this case arises from the fact that the jury, in the Court’s mind, made a mistake, because both doctors at the trial testified that she was not psychotic, that she did understand right from wrong.. ..” We observe this is not the statutory test. The test is whether appellant was suffering from a mental disease or defect and is dangerous to herself or others or their property. Both psychiatrists testified that appellant suffered from psychoneurosis or a personality disorder which impairs her normal functioning in society. In addition Dr. Finch stated that she evinced severe depression and self-destructive behavior. Her low self-esteem caused her to seek out punishment, yet she repeatedly cried out for help. As indicated, on 3 occasions she has attempted suicide. In the circumstances, we hold that the evidence preponderates in showing that appellant is suffering from a mental disease, at least to the degree that she is dangerous to herself. The judgment is reversed and the cause remanded with instructions to commit appellant into the custody of the Director of the State Hospital. We agree: Harris, C.J., and Fqgleman and Purtle, JJ.

George Rose Smith, Justice. The parties were married in 1946 and separated in 1966. Two years later the appellee brought this suit for a divorce on the ground of personal indignities. By counterclaim the husband also sought a divorce, for desertion. This appeal is from a decree awarding the divorce to the plaintiff and transferring- to her the title to a small dwelling house which the parties ostensibly owned as tenants by the entirety. The plaintiff, to prove the asserted indignities, testified that her husband was a drunkard, that he drank up every cent he earned, that he contributed nothing to the maintenance of the home, that he threatened to throw7 tier off the place, and that lie frequently embarrassed lier publicly by using vulgar and filthy language toward her in tire presence of her friends. There was sufficient, corroboration of her testimony to satisfy the familiar rule that the corroborating proof may be comparatively slight wdieu there is no indication of collusion. Much of the plaintiff’s evidence had to do with the. defendant’s alleged drunken conduct. The appellant now insists that the proof was insufficient to establish the plaintiff’s cause of action, because drunkenness, to be a ground for divorce, must be shown to have been habitual and to have continued for at least a year. Ark. Stat. Ann. § 34-1202 (Repl. 1962). That argument is based upon the mistaken assumption that proof of drunken conduct is pertinent only when the asserted ground for divorce is habitual drunkenness. Such a view7 is too narrow. Drunken conduct may be proved along with other acts to establish indignities rendering the plaintiff’s condition intolerable. By analogy, we have held that false charges of adultery constitute indignities, despite the fact that adultry is itself a ground for divorce. Relaford v. Relaford, 235 Ark. 359 S.W. 2d 801 (1962). In other jurisdictions it lias frequently been held that even though habitual drunkenness is a separate ground for divorce it may also be proved to support charges of cruelty that are interwoven with such intoxicated conduct. Hayes v. Hayes, 5 Cal. Rptr. 509 (1960); Robbins v. Robbins, 257 S.W. 2d 92 (Mo. App. 1953); Annotation, 76 A.L.R. 2d 419, 430 (1961). Since we agree with the chancellor’s finding' that the appellant’s actions justified the appellee in leaving the family home, we need not discuss the appellant’s contention that he should have been awarded the divorce on the ground of willful desertion. There remains for consideration that part of the decree thal vested title to the dwelling house in the appellee. According to the proof, the house was originally bought in 1966 by these litigants’ daughter and son-in-law, Joyce and Harold Don Gentry. The purchasers were not yet of age; so for their convenience the title was put in the name of Joyce’s father and mother, the Oarmicals. The Oarmicals borrowed the money to make the down payment and executed a mortgage for that debt and the unpaid balance. The Gentrys, however, were the real purchasers and made the monthly payments until they separated in 1967. By agreement with the Gentrys, Mrs. Oarmical then took over the property and began making the monthly payments from her own earnings. At the time of the trial Mrs. Oanuical’s investment in the dwelling, including laxes, wets about ‡1,000. Her husband was obligated on the purchase-money note and mortgage, bnt ho had paid nothing whatever toward the acquisition of the house. The decree was right. At first the Gentrys wrere the real owners, under the rule that when the grantee advances the purchase price (or obligates himself therefor) as a loan to the true purchaser, a resulting trust arises in favor of the latter, but the grantee can bold the property as security for the loan. Crain v. Keenan, 218 Ark. 375, 236 S.W. 2d 731 (1951). The beneficiary of a resulting trust is the real owner of the property and may transfer his interest. Restatement of Trusts (2d). § 407 (1959). Hence the Gentrys could and did relinquish their interest to Mrs. Oarmical. The decree found that the appellant should be relieved of liability on the purchase-money mortgage. ITe now complains that this provision will not afford him protection if the mortgagee finds it necessary to enforce the obligation. Of course that is true, but all that the chancellor could do in this case was to adjust the rights of the parties between themselves. If the appellant is required to pay part of the mortgage debt, the decree will protect his right of subrogation against the appellee and against the property. No more can be done without the mortgagee’s consent, the appellant having voluntarily incurred the debt. Affirmed. Tlie appellee is allowed an additional attorney’s fee of $250 for the services of her attorney in this conrt.

Mehaeey, J. Appellee filed a - complaint in the Greene circuit court against the appellant for damages to liis automobile, and alleged in the com'plaint that he was driving his automobile with several persons' in the car, returning from a funeral; and' undertook tó drive across the tracks of appellant, where there was a dump, and just as he struck'the railroad tracks he saw'several persons coming up the dump meeting him, and one of the women in the car cried: "Look out!” and at this time the front wheel of appellee’s car dropped off the rail, and when tlie woman cried out appellee thought that he had struck someone, and in his excitement threw on the emergency brake and the foot brake, and got out of the car to ascertain if he had struck anyone, and found out that he had not. He then returned to the automobile and attempted to release the brake and drive off the track, but he was unable to release the brake; had thrown the brakes on tighter than ordinarily. After making all efforts to release the brakes, and being unable to do so, several of the parties in the automobile got out and attempted to push the car off the track, but were unable to do so; that one of appellant’s trains was about two miles south of the crossing, and in plain view of said automobile; after the men were unable to release the brakes and drive the automobile off the track, or to push it off, appellant’s train continued to approach at a high rate of speed, and appellee became alarmed; he instructed the passengers in his automobile to get out, as it ivas apparent that appellant’s servants were not making any effort to avoid striking the automobile; the passengers in the automobile opened the doors and alighted in plain view of appellant’s servants who were operating the train, and proceeded to go down the dump out of danger; at the same time one of the passengers proceeded down the railroad south a few feet from the automobile and waved his hands and arms to indicate to the persons operating the train that they were in danger; but, notwithstanding this, the persons operating the train carelessly, negligently and wilfully failed and refused to make any effort to slow up or stop, but continued at full speed and collided with appellee’s automobile and ruined the same to appellee’s damage in the amount of $600. The appellant answered denying each and every allegation of the complaint, and also alleged in the answer that the collision and damage were caused solely and proximately by the defective condition of the brakes on appellee’s automobile, and that it did not occur or result from any negligence on the part of appellant, its agents, servants, or employees. There was a trial by jury, and the evidence of ap-pellee and his witnesses sustained the allegations of the complaint. The evidence showed that they could see the train for two and a half miles; there was no obstruction and nothing to prevent the persons operating the train from seeing the automobile; that the speed of the train was not reduced; but appellee testified that he went to the scene of the accident the next clay and could distinguish a man two and a half miles down the track. The engineer and fireman got off the engine, and someone remarked that the train had been going 73 miles an hour; that appellee did not think the brakes had been applied on the engine, but he thought that he was opening up; he heard a peculiar sound. Appellee’s evidence was corroborated'by other witnesses. The engineer testified that he sounded the whistle at the crossing and saw the automobile when he was coming up to the crossing, but did not have time to stop; did all he possibly could do to avoid hitting the automobile ; that the train was running about 60 or 65 miles an hour; and when operating an engine and seeing an automobile on the track a quarter of a mile away and not knowing whether it would get across, then the engineer makes a service application of the brakes; throws off 10 or 15 pounds of air, and if he sees that a man is going to get out, then he throws off 90 pounds of air, and it does not jam on; if the train is running 60 to 65 miles an hour, and he stops with an emergency application, it would unseat every passenger in the train. The engineer then testified as to the manner of stopping the train and the distance it required; and the distance at which the automobile could be seen from the engine. The evidence shows, however, that the road was parallel with the railroad for some distance before the automobile reached the crossing; the engineer saw the automobile before it turned onto the crossing, and saw the automobile and persons on the track; saw them trying to shove the car off, and he was blowing the whistle trying to get them out of the way. The fireman did not testify. Appellant requested the court to instruct the jury to return a verdict, for it. The court refused to give this instruction, and appellant excepted. The court then gave several instructions, and there was a verdict and judgment for $600. The case is here on appeal. It was the duty of the persons operating the train to keep a constant lookout for persons and property on the track, and when persons are discovered on the track, it is the duty of those operating the engine to exercise reasonable care to avoid striking or injuring persons or property. Appellant says that there are only two disputed questions of fact in the entire record, one of which, it is conceded, passes out of consideration in view of the jury’s verdict. The second question, and the one that appellant argues, is: “When, by keeping a lookout, could the engineer have discovered the peril of the automobile?” ' i *1-!,$!] It is true that the engineer said that he did all he could to avoid striking the automobile after it was discovered; but the evidence of the appellee and his witnesses, and the circumstances in the case, made it a question for the jury, and the jury’s verdict, where there is any substantial evidence to support, cannot be disturbed by this court. In testing the legal sufficiency of the evidence to support the verdict, it must be considered in the light most favorable to the appellee. Union Securities Co. v. Taylor, 185 Ark. 737, 48 S. W. 2d 1100; Fort Smith Traction Co. v. Oliver, 185 Ark. 227, 46 S. W. 2d 647; Ark. Baking Co. v. Wyman, 185 Ark. 310, 47 S. W. 2d 45; St. L.-S. F. Ry. Co. v. Hall, 182 Ark. 476, 32 S. W. 2d 440; Life & Casualty Ins. Co. of Tennessee v. Kinchin, 183 Ark. 1153, 37 S. W. 2d 871. There are many other decisions of this court to the same effect. We have uniformly held, also, that the jury is the sole and exclusive judge of the credibility of the witnesses and the weight to be given to their testimony; and when the case reaches this court, if there is any substantial evidence to sustain the verdict, it must be upheld, althoug’h it might appear to this court that it was against the preponderance of the evidence. In this case, the verdict is supported by substantial evidence, and the .judgment is affirmed.

M. Steele Hays, Judge. Appellant entered into a written lease agreement with appellee, plaintiff below, on August 1, 1978, leasing an ápartment unit in Fayetteville for one year at $235 per month. Appellant took possession around August 15 and paid $470 to cover two months rent plus $ 100 as a deposit against damage. In December, appellant told appellee that the rental costs in Fayetteville were too high for her earnings and that she.was forced to give up the apartment. Appellee informed appellant that he would hold her to the lease term. Around the 20th of December, appellant paid a month's rent and notified appellee in writing that she would be vacating the apartment no later than January 1 and would not expect a return of her deposit of $100. On December 27, appellee filed a suit to recover the full amount due under the léase, less the rental payments made by appellant and trial was set for January 26,1979. The facts are not disputed: appellee testified that the first two rent payments of $235 each were to apply to the first month and last month under the lease (although no provision to that effect appears in the lease); that he had advertised regularly from December on to obtain another tenant and was unable to rent the apartment during the lease term; that appellant’s notice that she was vacating was léft on his door sometime during December (he could not say just when); that no damage to the premises had occurred; that appellant had begun occupancy on August 15 and he only charged her for one-half of that month. By stipulation, it was agreed that appellant had.paid a total of $1292.50 plus the $100 deposit, all of which were to be credited to the total rent for the lease period.- At the close of plaintiffs case, the appellant-defendant moved for a directed verdict upon the ground that appellant was entitled to peaceful possession until January 30, 1978 because her payments of $1292.50 brought the rent current to that date, whereas suit was filed prematurely on December 27, 1977. Appellant’s motion was overruled, and her testimony was in agreement with that of appellee’s. She stated that she “evidently” vacated the premises on or about December 27 and moved to Rogers, Arkansas. The trial court’s findings were that appellant had paid $1292.50 in rent commencing on August 15; that a total of $2702.50 in rent was due, leaving appellant indebted to appellee for $1,410.00 less the $100 deposit, or a balance of $1,310.00, for which judgment and costs were granted to appellee. The judgment was filed on February 13, and on February 9 appellant filed a motion to vacate and reverse judgment, asserting that appellee’s suit was commenced on December 27, prior to the accruing of any cause of action, inasmuch as it was undisputed that appellant’s rent was paid at least through January 15. Appellee filed a response to the motion on March 1, asserting that $235 of rent was to be applied to the last month of the lease (July 1978) and consequently appellant’s rent was current only through the month of December, 1977, that rent for January of 1978 was due in advance under the lease when suit was filed on December 27, and that the cause of action had arisen at time suit was filed. On April 3 the motion was heard, and an order entered on April 17 denying the motion upon the ground the judgment had been entered in the term of court commencing on January 1 and not acted upon during such term (a new term having commenced on April 1) and, therefore, the court had no authority to act upon the motion except upon grounds set out in Ark. Stat. Ann. § 29-506, none of which were alleged in the motion. On April 5, appellant filed notice of appeal from the order and judgment and argues that no cause of action existed when suit was filed and that it was error to deny appellant’s motion to vacate. For reversal appellant contends that the trial court erred in denying the motion to vacate; however, appellee insists that notice of appeal was not timely filed, and, if that is correct, we could not reach the appeal on its merit. Therefore, we consider that point first, as it is jurisdictional to this appeal. Davis v. Ralston Purina Company, 248 Ark. 14, 449 S.W. 2d 709 (1970). The sequence of filings pertinent to the issue are set out for clarity: January 26 — Trial by court and findings announced. February 9 — Motion to vacate and reverse judgment filed. February 13 — Judgment filed. March 1 — Response to motion filed. March 22 — Docket entry setting a hearing on motion to vacate. April 5 — Notice of appeal filed. April 17 — Order denying motion to vacate filed. Act 123 of 1963, in four sections (Ark. Stat. Ann. 27-2106.3 — 2106.6) was intended to clarify the time for filing notice of appeal in those instances in which a losing party had filed a motion for a new trial, or similar motion affecting the judgment. The decision of Justice Brown in Old American Life Insurance Company v. Lewis, 246 Ark. 322, 438 S.W. 2d 22 (1969) provides this explanation: We discussed Act 123 in St. Louis S.W. Ry. v. Farrell, 241 Ark. 707 (1966). “Act 123 was evidently intended to remedy an awkward situation created by Act 555 of 1953.” Act 555 required a notice of appeal to be filed within thirty days after entry of judgment by the trial court. That requirement had to be abandoned for the benefit of a losing party who might have good reason to file a post-judgment pleading, such as a motion for a new trial, or one of the several motions enumerated in Act 123. Consequently, Act 123 established a procedure whereby the time for filing notice of appeal could be postponed pending the determination of such a post-judgment pleading. In St. Louis Southwest Railway Company v. Farrell, the requirements of Section 2 of Act 123 are stated succinctly: Section 2 of Act 123 requires the party to present the motion to the trial court within thirty days after its filing. If the matter cannot be heard within that period of thirty days the party must, within that period, request the court either to take the motion under advisement or set a definite date for the motion to be heard. If neither of those steps is taken within thirty days it shall be deemed that the motion has been finally disposed of at the expiration of the thirty days, and the time for filing a notice of appeal begins to run. Section 3 of Act 123 provides: If the said motion shall be denied by the trial court or shall be deemed to have been disposed of at the expiration of thirty days as provided in the preceding section, any party desiring to appeal from the judgment, decree or order originally entered shall have ten days from the entry of the order denying the said motion, or from the date of its disposition as herein provided, except that any party shall have not less than thirty days from the original entry of the judgment, decree, dr order, within which to give notice of appeal, and this act shall not be deemed to reduce or shorten the time now provided by law in any instance for filing notice of appeal to less than thirty days from date of entry of original judgment, decree or order by reason of a party having filed a motion for new trial or other motion herein mentioned. No question is raised with respect to the timeliness of. appellant’s motion to vacate, so we need only consider what followed. Excluding appellee’s response to the motion to vacate filed on March 1, it is clear that nothing appears from the record to have occurred relative to any of the steps discussed in Section 2 of Act 123 from the filing of the motion until the docket entry of March 22 (setting a hearing on April 3), a lapse of forty one days. .Thus, within the time allowed (thirty days) the appellant’s motion was not presented to the court, nor did the appellant ask the court to set the matter for a hearing, nor was the motion taken under advisement by the court, either on its own or at the request of appellant. It is clear that one of the foregoing must occur, otherwise the motion is deemed to be disposed of at the expiration of thirty days, just as if the court had actually denied it upon its merits. The decision in St. Louis Southwest Railway Company, supra, interprets the act accordingly. We note, too, that while the decision in St. Louis S.W. Ry. Co., the court merely commended the procedure followed in that case of having the court write a letter that he was taking the motion under advisement, thereby avoiding “the uncertainty of oral testimony” to show compliance with Section 2, it did not state that such record entry was mandatory. However, that requirement was provided by the case of Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W. 2d 621 (1977). In Jones, appellant filed a motion N.O.V. within the fifteen days ordinarily required for post-judgment pleadings, but nothing else transpired within the thirty days provided in Section 2, nor was notice of appeal filed in the time allowed. The court denied the appeal stating: . . . We are unable to find any evidence in the record either written or oral that the motion was either presented to the trial court or that the matter was taken under advisement by the trial court within the time . required by Ark. Stat. Ann. § 27-2106.4, supra. Section 3 provides that, where, as here, the motion is deemed to have been disposed of at the expiration of thirty days, a party desiring to appeal shall have ten days in which to file notice of appeal. The appellant, consequently, would have had ten days from March 11, or until March 21, in which to give timely notice of appeal. Obviously, notice of appeal was not filed within the time provided under Act 123 of 1963, and this court has no jurisdiction to hear the case on its merits. Davis v. Ralston Purina Company, supra. It might be helpful to observe, in passing, that appellant is correct in arguing that suit was filed prematurely (before the cause of action accrued); however, the end result would have meant simply the dismissal and refiling of the suit, as it is abundantly clear that the appellant is indebted to the appellee in exactly the amount awarded by the trial court under the lease. Affirmed. Judges Howard and Newbern dissent.

Darrell Hickman, Justice. Following a retrial held pursuant to Pridgeon v. State, 262 Ark. 428, 559 S.W. 2d 4 (1977), Joe Edward Pridgeon, the appellant, was convicted under Ark. Stat. Ann. § 82-2617 (Repl. 1976) of possessing heroin with the intent to deliver. Because he had been convicted of the same offense before, the appellant was sentenced under Ark. Stat. Ann. § 82-2624 (Repl. 1976) to 45 years in prison. On appeal, the appellant alleges three errors in the result below. We are not convinced by appellant’s arguments, and, accordingly, affirm his conviction. Appellant first contends that the trial judge erred in refusing to instruct the jury on the meaning of intent. While it is true that the jury must be told what the elements of the offense charged arq, Johnson v. State, 142 Ark. 573, 219 S.W. 32 (1920), and that the prosecution must prove each element beyond a reasonable doubt, Peals v. State, 266. Ark. 410, 584 S.W. 2d 1 (1979), it does not follow that the judge must give the jury a definition of each element. For example, we have said before that common words with ordinary meanings need not be explained to the jury. Stephens v. State, 164 Ark. 90, 261 S.W. 37 (1924). We agree with those courts which have found intent to be such a word. See People v. Ortega, 181 Colo. 223, 508 P. 2d 784 (1973); State v. Siekermann, 367 S.W. 2d 643 (Mo. 1963); and State v. Audette, 128 Vt. 374, 264 A. 2d 786 (1970). It should be noted that the Arkansas Model Criminal Instructions contain a relevant instruction, AMCI 3307, which does not define intent. Second, the appellant argues that Ark. Stat. Ann. § 82-2624 (Repl. 1976), which permits the doubling of the normal penalty imposed for a drug violation upon a second conviction, violates his right to equal protection of the laws because it authorizes a more severe punishment than that provided for in our general habitual offender act, Ark. Stat. Ann. §41-1001 (Repl. 1977). We disagree. The equal protection clause forbids only those legislative classifications which represent some form of invidious discrimination. Levy v. Louisiana, 391 U.S. 68 (1967), reh. den. 303 U.S. 898 (1968) and Yarbrough v. Arkansas State Highway Commission, 260 Ark. 161, 539 S.W. 2d 419 (1976). Generally, a classification will not be held to be invidious if some rational basis can be found to support it. Rinaldi v. Yeager, 384 U.S. 305 (1966). The severity of the state’s drug problem is a rational basis for this classification. Only when a classification is based on a suspect category, such as race, or infringes on a fundamental liberty, such as the right to travel, will strict scrutiny, a more demanding standard of review, be applied. See generally Shapiro v. Thompson, 394 U.S. 618 (1968) and Loving v. Virginia, 388 U.S. 1 (1967). We refuse to hold habitual drug possession a suspect category or delivering heroin a fundamental liberty. Finally, the appellant argues that doubling a sentence for a person convicted twice for a drug-related offense is cruel and unusual punishment. We reject this argument. Punishment, simply because it is severe, is not cruel and unusual. Blake v. State, 244, Ark. 37, 423 S.W. 2d 544 (1968). For example, in Thom v. State, 248 Ark. 180, 450 S.W. 2d 550 (1970) we upheld a sentence of 63 years when it was imposed on a habitual criminal convicted of burglary and grand larceny. We have often said: Punishment authorized by statute is never held cruel or unusual or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Hinton v. State, 260 Ark. 42, 49, 537 S.W. 2d 800, 804 (1976). For these reasons, the appellant’s conviction is affirmed. Affirmed. We agree. Harris, C.J., and George Rose Smith and Fooleman, JJ.

J. Fred J ones, J ustice. Farm Bureau Casualty Insurance Company advanced medical expenses to James Franklin Courtney during the pendency of a suit for personal injuries Courtney filed in the Poinsett County Circuit Court. Courtney settled his suit by compromise and Farm Bureau sought reimbursement, out of the proceeds of the settlement, for the full amount it had advanced under a subrogation agreement it entered into with Courtney. Courtney contended that Farm Bureau was not entitled to full reimbursement for the amount it bad advanced, but was liable to Courtney in half that amount as its proportionate share of Courtney’s attorney’s fee. The trial court awarded Farm Bureau the full amount of its advancement and Courtney has appealed. James Franklin Courtney is now deceased and this appeal is prosecuted in the name of his personal representative. For the sake of clarity, as well as brevity, the word “appellant,” and the name “Courtney,” as used herein, refer to James Franklin Courtney who was plaintiff in the trial court. Since the facts of this case are so germane to the problem on appeal, we set them out in some detail. Courtney sustained personal injuries while riding as a guest in a pickup truck owned and driven by his brother-in-law, Duane Birdsong. Courtney employed an attorney to represent him in a suit for damages for personal injuries, including medical expenses, against Birdsong and agreed to pay his attorney fifty per cent of the amount recovered. The attorney filed suit for Courtney in the Poinsett County Circuit Court on September 39, 1967. Courtney had incurred medical expenses in the amount of $1,797.90 as a result of his injuries and he was covered for medical expenses under an insurance policy issued to his father by Southern Farm Bureau Casualty Insurance Company. On October 30, 1967, Courtney obtained payment of the medical expenses from Southern Farm aud signed a “loan receipt” agreeing to pay, or reimburse, Southern Farm the sum of $3,797.90 out of the net amount he would recover from Birdsong. Courtney further agreed, that he would not settle his claim against Birdsong without Southern Farm’s knowledge and approval. Courtney’s attorney knew that Courtney had obtained payment for medical expenses from Southern Farm but did not know of the agreement he had signed. On or about November 28, 1967, Courtney’s attorney settled the lawsuit by telephone with the attorney for Birdsong’s insurance carrier, for the sum of $5,000.00. During the course of the telephone conversation, Courtney’s attorney was advised that Southern Farm claimed a subrogation interest in the recovery against Birdsong to the extent of the $1,797.90. Upon receipt of this information, Courtney’s attorney requested that the $5,-000.00 be paid in two separate drafts; one payable to Courtney, his attorney and Southern Farm in the amount of $1,797.90, and the other payable to Courtney and his attorney for the remainder of the $5,000.00 settlement. The two drafts, drawn as directed, were received by Courtney’s attorney and on November 30, 1967, by an approved order of the circuit court, the suit against Birdsong was dismissed with prejudice. Upon receipt of the drafts, Courtney’s attorney advised Southern Farm of the receipt of the draft for $1,-797.90 and sought to secure a proper endorsement in order that the draft could be cashed and the proceeds divided. Shortly thereafter, Courtney’s attorney was contacted by an attorney representing Southern Farm, who demanded that Courtney and his attorney endorse the draft and deliver it to Southern Farm’s attorney. Courtney and his attorney refused to comply with this request and on December 7, 1967, Southern Farm filed a motion to set aside the order of dismissal with prejudice and to permit it to intervene. This motion was taken up by the court on March 6, 1968, at which time the original motion to set aside the order of dismissal ivas abandoned and the hearing proceeded on the disposition to be made of the $1,797.90 which had been paid into the registry of the court by agreement. Southern Farm contended that it was entitled to all of the $1,-797.90 and Courtney contended that one-half of this amount should be applied to his attorney’s fee under the fifty per cent contingent fee contract he had with his attorney. The trial court awarded the entire sum of $1,797.90 to Southern Farm and Courtney has designated the following point he relies on for reversal: “Tlie trial court erred in refusing to allow an attorney’s fee for the collection of appellee’s (intervenor’s) subrogation claim.” We do not quite agree with the appellant as to the point at issue on this appeal. The appellant says: “The only point at issue in this appeal is whether or not the trial court erred in refusing to allow decedent an attorney’s fee for collecting the full amount appellee had expended for medical expenses under its insurance policy.” The actual point at issue, as we see it, does not involve the allowance of appellant’s attorney’s fee, but does involve who is to pay appellant’s attorney’s fee. The point at issue involves the question of whether the appellant is required to pay all of his attorney’s fee or whether he can require the appellee to pay a part of it under the facts and circumstances of this case. The appellant relies heavily on our decision in the case of Washington Fire and Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W. 2d 811. In the Hammett case the insurance company issued a $50.00 deductible policy of collision insurance to Hammett. Hammett was involved in a collision with Purcell. The insurance company paid Hammett his property damage and took subrogation in Hammett’s cause of action against Purcell. After notifying Purcell of its claim and rights under its subrogation agreement, the insurance company threatened suit against Purcell but did nothing more. Hammett, through his own attorney, sued Purcell for the full amount of the damages and upon compromise, the insurance company was required to contribute its proportionate share of Hammett’s attorney’s fee as a part of the cost of collection under equitable principles of subrogation, citing Webster v. Horton, 188 Ark. 610, 67 S.W. 2d 200. In 50 Am. Jur., Subrogation, §3, page 679, is found the following: ‘ ‘ There are known to the law two kinds of subrogation, one of which is termed ‘conventional,’ and the other, in contradistinction, ‘legal,’ or, by reason of its origin and basis, ‘equitable.’ Some authorities have regarded assignments as a third type. Ordinarily, when the term is used without qualification legal subrogation is meant... Legal subrogation is a creature of equity not depending upon contract, but upon the equities of the parties. In its most usual aspect, it arises by operation of law where one having a liability or a right or a fiduciary relation in the premises pays a debt owing by another under such circumstances that he is in equity entitled to the security or obligation held by the creditor whom he has paid. Conventional subrogation, as the term implies, is founded upon some understanding or agreement, express or implied, and without which there is no ‘convention.’ It occurs where one having no interest or any relation to the matter pays the debt of another, and by agreement is entitled to the rights and securities of the creditor so paid. The contract right of subrogation is somewhat broader than legal subrogation, for the right is granted irrespective of whether the payment was necessary for the protection of the person seeking subrogation.” In the case at bar the appellant entered into two separate contracts, first with his attorney and secondly with the appellee. His contract with the appellee amounted to more than a mere legal subrogation right to be enforced on equitable principles. He agreed to pay the appellee $1,797.90 out of the net amount he would recover in a lawsuit he had already filed. The appellant, in effect, now seeks to charge the appellee with a part of appellant’s attorney’s fee incurred in collecting the amount he agreed to pay the appellee. While this agreement, signed by the decedent, conflicted to some extent with the agreement he made with his attorney in that it purported to give the appellee power of attorney with “irrevocable power, to collect any such claim or claims, and to begin, prosecute, compromise or withdraw in ... its . .. name ... any and all legal proceedings ... this agreement was entitled “Loan Receipt” and provided as follows: “Received From the SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY (hereinafter referred to as ‘Company’) THE SUM OF Seventeen Hundred Ninety Seven & 19/100 [sic] Dollars ($1797.90) as a loan, without interest repayable only in the event and to the extent of any net recovery tiie undersigned may make from any person, persons, corporation or corporations, or other parties, causing or liable for injury to James F. Courtney and as security for such repayment the undersigned hereby pledges to the said ‘Company’ all his, its or their claim or claims against said person, persons, corporation or corporations or other parties, and any recovery thereon, in the above amount. The undersigned covenants that no settlement has been made by the undersigned with any person, persons, corporation or corporations, or other parties against whom a claim may lie, and no release has been given to anyone responsible for such loss and that no such settlement will be made, nor release given without the written consent of the said company; and the undersigned covenants and agrees to cooperate fully with the said company, to promptly present claim and, if necessary, to commence, enter and prosecute suit against such person or persons, corporation or corporations, or other parties, through whose negligence or other fault the aforesaid loss was caused, or who may otherwise be responsible therefor, with all due diligence, ir. Ms, its or their own name.” The appellant had already filed his lawsuit before the agreement was entered into with the appellee. The appellant’s attorney was entitled to his fee and the appellee was entitled to repayment, to the extent of appellant’s net recovery against Birdsong, the full amount of $1,797.90 the appellee had advanced to the appellant. The appellant’s attorney knew of the advancement but did not know of the contents of the agreement his client had entered into with appellee until the suit against Birdsong was compromised by telephone with Birdsong’s insurance carrier. Upon being advised of appellee’s claim, the appellant’s attorney directed that the $1,797.90 claimed by the appellee be paid by separate draft drawn payable to his client, himself and the appellee in that amount. This was done and the suit against Birdsong was dismissed with prejudice. The appellant, in ¡effect, argues that the $1,797.90 represents a part of the gross recovery and only half of this amount would represent the net recovery out of which he agreed to repay appellee. The appellee argues, in effect, that the $1,797.90 is a part of the net recovery and that if the appellant did not pay his attorney out of the remaining $3,202.10 of the gross settlement, that his failure to do so was not the fault of the appellee, and that in no event should appellee be now required to pay any part of appellant’s attorney’s fee. The trial court agreed with the appellee and we agree with the trial court. The appellant made two separate agreements in this case. He agreed to pay his attorney fifty per cent of the amount collected in the suit against Birdsong. The appellee paid appellant’s medical expenses under a policy it had issued to appellant’s father, and the appellant agreed to repay this amount to the appellee out of such net amount he might recover from Birdsong. In the agreement between the appellant and the appellee, the appellant did not require appellee to pay or to contribute to the payment of appellant’s attorney’s fee and appellee did not agree to do so. There is no evidence in the record as to what the appellant did with the other draft, presumably in the amount of $3,202.10. The only reference to its disposition is contained in the “Response of Plaintiff to Motion to Set Aside and to Intervene,” as follows: “After receiving the two checks as alleged above, plaintiff paid his attorney all sums which he owed him except his fee of fifty per cent (50%) for the collection of the sum represented by the draft for ONE THOUSAND SEVEN HUNDRED NINETY SEVEN AND 90/100 DOLLARS ($1,-797.90). Accordingly, plaintiff’s attorney advised Southern Farm Bureau Casualty Company that Franklin Courtney had indorsed said draft; that plaintiff’s attorney was in possession of said draft; that he had indorsed said draft; that he was entitled to fifty per cent (50%) of the amount of such draft; that he stood ready, willing and able to pay Southern Farm Bureau Casualty Company said sum after deducting his fee ... Plaintiff’s attorney has made demands upon the plaintiff for fifty per cent (50%) of the amount of said draft payable upon his contract of employment with the plaintiff. Plaintiff says that he is legally obligated to pay his attorney fifty per cent (50%) of the amount of said draft in accordance with the terms of his contract by which he employed said attorney.” The appellant’s attorney is not a party to this lawsuit. If the appellant still owes his attorney any amount on his fee, he should pay it and there is nothing in this case that would prevent him from doing so. The appellant agreed to pay to the appellee $1,797.90 out of the amount he collected from Birdsong, but the appellee did not agree to pay any part of appellant’s attorney fee and we find no equitable reason why it should be required to do so now. When appellant’s attorney learned of appellant’s agreement with the appellee, he simply directed that a separate draft be drawn for the amount covered by that agreement and the trial court correctly held that this amount should be paid over to the appellee and that the appellant is not entitled to contribution from this amount to apply on appellant’s attorney’s fee. Judgement affirmed.

McHaney, J. Appellant, a citizen and taxpayer of the town of DeValls Bluff, Arkansas, brought this action against said town, its mayor, recorder, and aldermen to enjoin them from carrying into effect an ordinance' passed and approved by the town council and mayor on December 5, 1938, which proposes to establish barge terminals in said town and to issue revenue bonds in the sum of $411,000 for such purpose. To secure the payment of said bonds, the physical property is to be mortgaged and the revenues to be derived from the operation of the barge terminals are also pledged. No tax of any kind on the property of the citizens of said town is to be levied or collected for such purpose. This undertaking finds its authority under the provisions of act 231 of the Acts of 1937, p. 827'. The title of said act is as follows: “An act to provide for the purchase, construction, and to promote the improvement of navigation on the navigable rivers of Arkansas, by the cities and incorporated towns in the state of Arkansas, and to purchase, establish, construct and build barge terminals tog-ether with tenders and barges, and to provide for the issuance of revenue bonds payable solely out of the revenue derived therefrom and to provide for the operation of such barges and terminals and declaring an emergency. ’ ’ Appellant attacked the act and the proceedings under nine separate headings, briefly stated as follows: 1. That the legislature has no power to confer such authority as here undertaken on cities and town; 2. that said act 231 is unconstitutional; 3. that even under said act, appellees cannot enter into the proposed contracts; 4. that the proposed improvement is not a public, but a private one; 5. that its operation is not a public, but a private business; 6. that it is ultra, vires; 7. that § 1 of said act confines the operations to the corporate limits of the town, and that freight movements cannot go beyond the town corporate limits which would destroy the proposed business by the act itself: 8. that the word “time” in § 3 of the act is used in its singular sense, so that, as we understand appellant’s contention, all the bonds to be issued would have to be made due and payable at the same time and not over a period of years; and 9. that § 14 of said act provides that the “Sections and provisions of this act are inseparable and are not matters of mutual essential inducement,” etc. It is said that in view of the entire act this destroys the act itself. To a complaint setting up these grounds of invalidity and praying injunctive rer lief, a demurrer was interposed and sustained. Appellant declined to plead further and his complaint was dismissed for want of equity. The case is here on appeal. Many of the grounds of attack are vague and uncertain. In Ringgold v. Bailey, 193 Ark. 1, 97 S. W. 2nd 80, we construed a similar act relating to the construction of water works in cities and towns, act 131 of the Acts of 1933, and held that bonds issued under authority of the ordinance and legislative act could not become obliga- • tions of the town. See, also, Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5; Snodgrass v. Pocahontas, 189 Ark. 819, 75 S. W. 2d 223. It is also contended under grounds -1, 2, 3, 4, and 5 that, under the Constitution, the Legislature is without power to confer authority on municipalities to undertake the project here proposed. But we held to the contrary in Lambert v. Wharf Imp. Dist. No. 1 of Helena, 174 Ark. 478, 295 S. W. 730, where we said: “It. will he seen that it is expressly provided in the act that no indebtedness, no obligation, no liability or interest thereon, which may be created under the provisions of this act, shall he paid from assessments or taxation on the real property. The act, therefore, is not void because of any tax or assessment on real property, and we know of no acceptable provision that would prohibit the Legislature from passing the act in question. It has been repeatedly held by this court that the Constitution is not a grant of powers, and that the Legislature may do anything not prohibited by the Constitution. This court has also many times held that all doubts as to the constitutionality of a statute must be resolved in favor of the statute.” A like provision as to the payment of the bonds from the revenue of the proposed improvement is to be found in § 6 of said act 231. But for said act, appellant would be correct that said town could not engage in the proposed business. We know of no constitutional provision denying such power to the Legislature and appellant cites none. The other contentions made are likewise without merit. One is that § 1 of the act limits the operations to the corporate limits of the town. We do not so understand said section. His contention about the use of the word “time” in § 3 is captious, and as to that of the word “inseparable” as used in § 14, it is clear from the context that it is a typographical error and that the word “separable” was intended. Affirmed.

M. Steele Hays, Judge. This is an appeal from a decree granting the specific performance of a contract entered into between appellant, Claude Rice, and appellee, on February ‘6, 1968. Appellant argues that no contract existed, citing Myers v. Snider, 226 Ark. 849, 294 S.W. 2d 495 (1956), to the effect that one seeking specific performance must prove the essentials of a valid contract and a readiness to perform the contract. As to the first part of the argument, it is clear that the letter signed by appellant on February 5,1968, and by appellee on February 6, 1968, meets all the requirements of a binding, valid contract. The letter plainly imposes mutual obligations on the signees, Claude Rice and Georgia Black McKinley, and the promises of one party is a sufficient consideration for the promises of the other. Abbott v. Arkansas Utilities Company, 165 F. 2d 339 (1948); Southern Surety Company v. Phillips, 181 Ark. 14 (1930). Appellant says there was no “meeting of the minds,” but the letter is clear and specific in the obligations undertaken by each party, that is: appellant expressly recognized that appellee was the owner of the disputed strip, that he would erect a fence before a given time, that he would fill a certain ditch at the end of the lease period, that the parties would select a surveyor to do necessary surveying and bear the expense equally, that each would convey certain lands to the other following the survey and that appellee would lease to appellant the strip in dispute for five years with right of renewal for an additional five years at $12.50 per acre per year. A “meeting of the minds” is defined simply as an agreement reached by the parties to a contract and expressed therein, Hudson v. Columbian Transfer Company, 100 N.W. 402, 37 Mich. 255, or as the equivalent of mutual assent or mutual obligation, Wetherbee v. Gary, 381 P. 2d 237. Clearly, the letter expresses an agreement and recites a mutual exchange of obligations entirely sufficient to meet the essentials of a contract. As to the second part of the argument, we find nothing in the record during the entire period under question to support the argument that appellee was not ready and willing to perform. In fact, it appears that the appellee recognized the agreement and was ready to perform those things required of her under its provisions. She accepted the annual lease payments, permitted appellant to farm the lands under the lease, joined in the letter of February 3,1972, ordered a survey and agreed to pay one-half of the expense, indicated her willingness to go forward with the agreement through Mr. Jenning’s contact with Mr. Dover in 1970, wrote to the Parrishes and to appellant, and finally, tendered her deed to the appellant in March of 1974. Appellant admits the genuineness of his signature, but argues that the letter-contract could not have been signed, as appellee states, on February 5 and 6, 1968, relying on Defendant’s Exhibit No. 1, a letter dated February 29, 1968, in which modifications were discussed. It is evident that changes were made after the dates recited in the letter-contract, but appellant appears to have both expressly and impliedly accepted and concurred in those modifications by acting on the contract in numerous ways and having received the benefits of the agreement over several years and cannot now be heard to deny its very existence. Next, the appellants insist that the suit filed by appellee on January 28, 1976, is barred by the statute of limitations and by laches. Appellee contends that this point was not raised below and cannot now be raised on appeal, citing Campbell v. State, 265 Ark. 575 and Garner v. Holland, 265 Ark. 536. But the record shows that an amended answer on behalf of appellants, Claude Rice and Charlotte Rice, was filed on January 19, 1977, pleading the statute of limitations and laches, so the argument that the issues were not raised properly in the court below is without merit. Thus, the final, and more difficult, issue presented by this appeal is the question of limitations and laches. In a thorough and well reasoned memorandum opinion, the chancellor held, correctly, that the applicable statutory period of limitations was five years and rejected the appellant’s contention that inasmuch as the agreement was dated February 6,1968, the deadline for filing suit would have been February 6,1973. The error of appellant’s position is that the period of limitations runs from the point at which the cause of action accrues rather than from the date of the agreement. Admittedly, the nature of the agreement here is such that determining when the cause of action accrues is not without difficulty, but we believe the chancellor was correct in holding that the cause of action did not accrue until sometime after January 29, 1971, and therefore, the suit filed on January 28, 1976, was within the five-year period. When did the appellee’s cause of action accrue? The letter contract between the parties provided that a surveyor would be selected by agreement and the cost borne equally, and, using that survey as a basis, the appellant Rice would convey to appellee Parcel “B” and appellee “in turn’ ’ would convey Parcel “A” to him. Whether the survey of L. C. Keefe (Plaintiffs Exhibit No. 2) is the survey contemplated by this provision, or the unfinished survey referred to in the Memorandum Opinion of the chancellor is not entirely clear. Appellant argues that the April (1968) survey is the one contemplated and we are inclined to agree, inasmuch as it purports to describe the two tracts (Parcel “A” and “B”) and is made for “Claude Rice and the Farelly Lake Company.” However that may be, the issue is moot for the reason that the parties voluntarily chose to defer the exchange of deeds until the litigation mentioned in Paragraph 4 of the agreement was completed. This deferment was at the suggestion of appellant’s attorney and was sensible in light of the likelihood that the outcome of the litigation would necessitate a correction of the description in the deeds. What we perceive to have occurred, therefore, is that the parties mutually agreed to defer to an undesignated time in the future the agreed exchange of deeds and allowed the matter to remain in that posture until Mr. Jennings began renewing efforts to bring the matter to a head. Under these circumstances, we find no law, nor do appellants cite any, which holds that the statute of limitations was operating and we agree with the chancellor that there is no just basis on which to apply it. Appellant insists that the statute of limitations is not tolled by “conversations” and surely that is true. But the point is that this is not a case in which one party to an agreement is in default in an obligation due at a specified time, or has breached a duty on a certain date. In those instances, it is clear that a tolling of the statute of limitations requires more than “conversation.” But where, as here, the parties have entered into an agreement which requires a series of mutual acts, some unilateral, some bilateral in character and have left the time of those acts open-ended, and where one contrives to receive the benefits of the agreement, and make lease payments annually thereunder, the cause of action does not accrue until one party has by word or conduct indicated to the other a repudiation of the agreement. As stated, we find no case presenting precise authority, but the spirit of this point is supported by the general statements of the law and by the dictum in related cases. In Federal Land Bank of St. Louis v. Miller, 184 Ark. 415 (1931), the statute of limitations was pleaded in defense of a suit by way of intervention by a mother to cancel a deed given to her son, in consideration of the son’s promise to suitably maintain her, alleging that the son had failed to keep his agreement. The son had subsequently given a deed of trust to the appellant bank, and then defaulted in the payments to the bank and in support of the mother. Denying the defense of limitations, the court said: The insistence that the intervener is barred by the statute of limitations from the assertion of her claim of maintenance may be disposed of by saying that her son and grantee never at any time repudiated the obligation which he assumed in consideration for the execution and delivery of the deed to him. [184 Ark. at 420] American Jurisprudence, 2d, Volume 51, Limitations of Actions, Section 127, states the rule to be as follows: If a right of action depends upon some contingency or a condition precedent, the cause of action does not accrue and the statute of limitations does not begin to run until that contingency occurs or the condition precedent is complied with. Thus, an agreement to convey an interest in property after partition cannot be enforced until partition, and the statute of limitations does not begin to run against a suit to enforce such agreement until that time. If one promises to pay when able, a cause of action does not arise and therefore the limitation period does not start to run until there exists such an ability to pay. And a like principle applies when payment is to be made out of a particular fund to be created by the act of the debtor. Finally, there is an element of waiver and estoppel present in the appellant’s benefitting under the agreement on the one hand and asserting the defense of limitations on the other. Section 431 of American Jurisprudence, 2d, supra, states: One cannot justly or equitably lull his adversary into a false sense of security, thereby causing him to subject a rightful claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his course of conduct as a defense to the action when brought. If it were necessary to fix the time appellee’s cause of action occurred, it would, we believe, be the end of the lease period, Le. December 31, 1972, plus the lapse of a reasonable time thereafter, as it was not until this point in time that the appellant was in breach of any obligation of the agreement (except the exchange of deeds, which was postponed at appellant’s suggestion) as it was not until the end of the lease that appellant was to perform the filling of the ditch. Applying the five year period of limitation to this accrual makes it apparent that appellee’s suit on January 28,1976, was within the statute. Nor do we agree that the doctrine of laches should work to defeat the appellee’s suit to enforce the agreement. Laches is an unreasonable delay by the party seeking relief under such circumstances as to make it unjust or inequitable to the other party to enforce the agreement. The appellant was at least an equal participant in the delay in exchanging deeds and cannot be heard to say that laches should protect him, or that appellee’s delay was without cause. Grimes v. Carroll, 217 Ark. 210, 229 S.W. 2d 668 (1950); Norfleet v. Hampton, 137 Ark. 600, 209 S.W. 651 (1919); Gravel v. State, 181 Ark. 216, 26 S.W. 2d 57 (1930). The decree of the lower court is, therefore, affirmed.

PER CURIAM Petitioner was convicted of capital felony murder and sentenced to death by electrocution. We affirmed, Pickens v. State, 261 Ark. 756, 551 S.W. 2d 212 (1977), and the Supreme Court of the United States denied certiorari, 435 U.S. 909 (1978). The mandate received from the Supreme Court was the last docket entry in this court before the filing of the present “Petition for Trial Records.” Since petitioner’s pro se petition for a copy of or use of his trial transcript is not attached to or incorporated into a petition for postconviction relief pursuant to Criminal Procedure Rule 37, his petition is denied; however, petitioner may reapply to this court for a copy of his transcript upon the filing of a petition for postconviction relief. See Chavez v. Sigler, 438 F. 2d 890 (8th Cir. 1971). Petition denied.