Callaway v. Perdue, 5-3374

• Decision Date: 23 November 1964
• Docket Number: No. 5-3374,5-3374
• Citation: 385 S.W.2d 4,238 Ark. 652
• Parties: , 13 A.L.R.3d 1300 P. L. CALLAWAY, Appellant, v. Logan Lee PERDUE, Appellee.
• Court: Arkansas Supreme Court

Page 4

385 S.W.2d 4

238 Ark. 652, 13 A.L.R.3d 1300

P. L. CALLAWAY, Appellant, v. Logan Lee PERDUE, Appellee.

No. 5-3374.

Supreme Court of Arkansas.

Nov. 23, 1964.

Rehearing Denied Jan. 11, 1965.

William H. Drew, Lake Village, for appellant.

Switzer & Griffin, Crossett, for appellee.

HARRIS, Chief Justice.

In September, 1944, P. L. Callaway and his wife, Irene, conveyed 320 acres of land to their grandson, Logan Lee Perdue, age one and one-half years. In April, 1955, Mrs. Callaway was appointed guardian of the person and estate of the minor. In February, 1963, Mrs. Callaway died.

In April, 1963, Logan Lee Perdue, then twenty years of age, whose disabilities as a minor had been previously removed, ¹ instituted suit against his grandfather and H. A. Etheridge, alleging that these individuals had, in 1953, cut and removed timber growing on the lands (which had been deeded to him by his grandparents) of the value of $5,376.00, 'and did convert and dispose of same to their own use. * * *' Callaway filed a general denial, and Etheridge answered, admitting purchasing and removing timber from the lands in question, but asserting that he contracted with Callaway for such purchase and removal. The case proceeded to trial, but at the conclusion of the presentation of the evidence, appellee took a non-suit as to defendant Etheridge. The jury returned a verdict against Callaway in the amount of $13,382.40, representing treble damages for the value of the timber taken. From the judgment so entered by the court, comes this appeal. Appellant sets out seven points for reversal, which we proceed to discuss.

It is first asserted that the action against appellant is 'barred by the Statute of Frauds.' We do not see that the Statute of Frauds has any application in this case whatsoever. Appellee's case is predicated upon the fact that Etheridge purchased the timber from Callaway, and had same cut and removed; that Callaway had no right to sell the timber, and wrongfully disposed of it. There was no written contract, but the Statute of Frauds, if applicable at all, could only relate to the transaction between Callaway and Etheridge, and certainly has nothing to do with the rights of the true owner of the property. According to Perdue's allegations, Callaway and Etheridge, respectively, wrongfully sold, and purchased, appellee's timber, and converted the proceeds to their own use.

It is next asserted that the proof is insufficient to support the verdict. It is true that the evidence is rather meager. The principal testimony connecting Callaway with the transaction is that of defendant Etheridge who testified that Callaway told him (Etheridge) that he wanted to sell some timber on his land, and Etheridge was to stop by the Callaway home and advise Mrs. Callaway whether he was interested in purchasing same. Etheridge, who was engaged in buying and selling timber for Bradley Lumber Company, left word with Mrs. Callaway that he would be glad to handle it. According to Etheridge, Mrs. Callaway told him to go ahead and cut the timber. The witness stated that all of his negotiations were carried on with the wife, and after cutting the timber, he paid Mrs Callaway. Subsequently, however, he met Mr. Callaway, and the latter told him that he had made a $20.00 mistake in the amount paid Mrs. Callaway, and Etheridge thereupon paid appellant an additional $20.00. Logan Lee Perdue, appellee, testified that his grandfather told him that he had cut the timber, and Homer Perdue, father of appellee, likewise testified that Callaway had told him ten or twelve years back that 'he had cut and sold Logan Lee's timber.' The witness stated that he went to the land belonging to his son, and observed that the timber had been cut; that no money was turned over to him. Accordingly, the only evidence that appellant participated in the trespass and conversion was the statements of Etheridge that he had been approached by Callaway relative to the sale, and had paid $20.00 extra to appellant; the statement of appellee that his grandfather had told him that he (the grandfather) had sold the timber, and third, the evidence of Homer Perdue, father of appellee, that P. L. Callaway had made the same statement to him. ²

The aforementioned evidence, though scanty, was, we think, sufficient to take the case to the jury.

Appellant contends that, even if there is sufficient evidence to present a jury question, the amount determined by the jury is excessive because treble damages were awarded. ³ This argument is based on the contention that the pertinent statutory provision (Ark.Stat.Ann. § 37-204 [1947]) requires that actions for penalty be commenced within two years. The entire section reads as follows:

'Actions for recovery of statutory penalty--Two years.--All actions on penal statutes, where the penalty, or any part thereof, goes to the State, or any county or person suing for the same, shall be commenced within two years after the offense shall have been committed, or the cause of action shall have accrued.'

Section 37-226 is relied upon by appellee as tolling Section 37-204 under the facts of this case, and permitting his recovery of treble damages. That section reads as follows:

'If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three years next after full age, or such disability may be removed.'

We think this last statute is controlling. In the early case of Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S.W. 952, this court construed Section 4826 of Sandels and Hill Digest, that section being absolutely identical to Section 37-204, heretofore quoted, and held contrary to appellant's contention.

For the fourth point for reversal, it is argued that the trial court erred in not allowing a continuance because of the illness of the appellant, and in refusing to allow certain interrogatories, propounded to him, together with answers, to be read to the jury. We find no merit in this contention, and actually the point may be peremptorily disposed of because of the fact that the record does not reflect that any motion for a continuance was made at the time of trial. However, inasmuch as this case is going to be reversed on a subsequent point, the question may well arise again as to whether the interrogatories can properly be used, particularly in view of the fact that appellant has apparently died since the judgment was rendered. Although no Order or Revivor appears in the record, appellant evidently is now deceased, since the transcript reveals a motion by 'Don F. Callaway, Executor, of the Estate of P. L. Callaway, Deceased,' through his attorney, for an extension of time in which to file this appeal. ⁴

On October 21, 1963, appellee served notice on appellant for the taking of the discovery deposition of Callaway on November 15, 1963. Counsel then filed his motion, seeking to prohibit appellee from taking this deposition, setting out that Callaway was a patient in the Lake Village Infirmary, and previously had been confined to his bed at his home for more than eight months. An affidavit was executed by Dr. Alan G. Talbot, enumerating the ailments of Callaway, and further stating:

'* * * It is further the opinion of this attending physician that to subject the patient to interrogation by reason of his illnesses as heretofore set out, will be detrimental to the patient in aggravating his physical condition. That such interrogation would not only aggravate his physical condition but would probably create such a state of tension that he may suffer serious relapses and actual danger to his life.'

The record does not reflect what action, if any, was taken by the court. The trial of the case was held on November 20, 1963, but as previously stated, no request for continuance appears in the transcript. However, prior to the notice of the taking of depositions, appellee had, on August 5, 1963, propounded to appellant certain interrogatories, and these were answered on August 16, 1963. At the trial, counsel for Callaway offered into evidence the interrogatories and answers thereto, contending that he was entitled to do so, and stating:

'* * * It is a matter of public knowledge that the Defendant, P. L. Callaway, has been confined in bed for more than eight months and is currently confined in the Lake Village Infirmary suffering from maladies, as shown by the affidavit of the doctor, duly filed herein, and that he is physically unable to even sit, much less come to this courtroom.'

The assertion that the interrogatories and answers were admissible is based on Ark.Stat.Ann. § 28-355 (Repl.1962) which first makes provision for the service of written interrogatories upon any party by an adverse party, and then reads as follows:

'Interrogatories may relate to any matters which can be inquired into under Section 1(b) [§ 28-348, subsec. (b)], and the answers may be used to the same extent as provided in Section 1(d) [§ 28-348, subsec. (d)] for the use of the deposition of a party.'

It will be noted that the quoted provision refers back to Section 28-348, Subsection (d), which reads as follows:

'At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: * * *

'(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: 1, that the witness is dead; or 2, that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the...