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Smith, J.
On August 25, 1938, Otto Hansen entered into a building contract with M. Friedman to remodel the latter’s residence in the city of El Dorado. This contract was upon the consideration of $2,400, to be paid after the completion of the work. Friedman resided in the house to be remodeled, and continued to live in it while the remodeling work was in progress. During the progress of the work Friedman advanced Hansen- $200, but made him no other payment. The contract did not require this payment until the. work was completed. ■
The contract detailed the work to be done, but provided that “The owner may, at any time during the progress of the work, alter, or. change, or subtract from or add to the plans and specifications, without violating the contract, or the terms thereof, provided, that, if the cost of the work be increased by any such change or alteration, the amount of such increase shall be added to the contract - price herein agreed upon and paid upon the completion of the work.” Various changes and additions were made to the plans and specifications, but, under the provisions of the building contract above copied, they became a part of the contract.
While the parties were operating under this contract, the Wyatt Lumber & Supply Company, Inc., hereinafter referred to as the Wyatt Company,, furnished the build ing materials required. These amounted "to the sum of $1,267.36. Hausen, the contractor, was unable to meet his labor payrolls, and the Wyátt Company furnished Hansen money for this purpose in the sum of $1,263.32. The .advances of money and the sales of materials occurred ¡between the dates of September 19th and December 3rd, .1938, on which-last-named date Hansen quit the job.
Included in the extra work which Hansen was directed to do,’ and agreed to do, was the erection of a new .garage and the construction of a concrete driveway leading thereto, as the place of the erection of the new garage Tendered the driveway leading to the old garage unavailable. The floor of the old garage was demolished and the garage was rendered unusable, and was not replaced by Hansen, nor did he construct the new driveway.
After Hansen quit the job, Peters & Cramer, building contractors, were employed to make an estimate of the cost of the unfinished work and the cost of the extra "work not called for in the original contract which Hansen lad done. This estimate amounted to $469.52, and represented work, which Hansen was expected and had agreed to do and to be paid the cost of any part thereof not Included in the original contract, in addition to the $2,400.
About January 1, 1939, a leak developed in the roof Valley, and the manager of the Wyatt Company testified that the Friedmans called upon that company to complete the job Hansen had contracted to perform. The roof was repaired, at a cost of $14.37, of which $8.37 was for materials, and $6 for labor.
Upon the allegation that this work was a continuation ■of the Hansen job, being a repair upon a job otherwise substantially completed, the Wyatt Company filed suit to collect this $14.37 item, together with its bill for materials furnished and for labor paid for the account of' Hansen. All of this account, except the item of $14.37, bad been charged on the books of the Wyatt Company .against Hansen, and, for identification, was referred to ■on the books as the “Friedman Job.”
Hansen had left the State, and constructive service by the publication of a warning order was had against him. Friedman and his wife were served with summons. In addition, a writ of garnishment was issued against Friedman, in which it was sought to impound any balance-due by him to Hansen. Interrogatories were propounded to Friedman, in which, he was required to answer what money, if any, he owed Hansen. Friedman filed an answer-containing a general denial of indebtedness, in which he-reserved the right to answer in greater detail, and thereafter he filed an amendment to his answer in which he-set out the substance of the defense which he interposed at the trial.
There was no denial of the garnishee’s amended answer, as required by § 6125, Pope’s Digest. It was held' in the case of Beasley v. Haney, 96 Ark. 568, 132 S. W. 646, that this denial must be in writing, and that the answer of a garnishee must be taken as prima facie true, and, if not controverted, or if no issue is taken thereon,, it will not be presumed to be absolutely true. And in the case of Southwestern Gas & Electric Co. v. W. O. Perkins & Sow, 185 Ark. 830, 49 S. W. 2d 606, it was said that unless there was a denial of the garnishee’s answer entered of record, the presumption as to the truth of its-allegations becomes conclusive. See, also, Hoxie Lumber Co. v. Chidester, 184 Ark. 612, 43 S. W. 2d 69; Bank of Shirley v. Bonds, 178 Ark. 1079, 13 S. W. 2d 816.
Another reason why relief by way of garnishment, may not be awarded the Wyatt Company is that the building contract was not fully completed. It is argued that there had been a substantial compliance with the-original written building contract. But the court made-a specific finding to the contrary; and we cannot say that this finding is contrary to the preponderance of the evidence. But, even so, by the terms of the written contract, additions thereto became a part thereof.
In Friedman’s brief, twelve items' are enumerated in respect to all of which it is insisted that the contract was incomplete, but, if performed at all, had not been performed in a “good and workmanlike manner,” as the contract required should be done. The most important of these relates to the failure to install a red clay tile roof, tbe cost of which, would be $500. Other items relate to faulty construction, which the Wyatt Company insists could be remedied at small cost.
The building to be remodeled was an old one, and the Wyatt Company insists that the performance of the contract in a “good and workmanlike manner” relates to the manner of performing the remodeling, and not to the sufficiency of the job after it is completed. But there are several, at least, of these items, embraced in the original contract, which the undisputed testimony shows were improperly constructed, and will require replacement. The owner could demand that this be done before being required to pay the. contract price for the work.
There is an extended annotator’s note to the case of McKendall v. Patullo, 52 R. I. 258, 160 Atl. 202, 82 A. L. R. 1111, and the annotator cites many cases in support of the following note: “It is held that, in order that a garnishee may be charged, there must be an existing debt at the time of the service of the garnishment, and not a mere conditional or contingent liability. So, in the case of a construction contract, where the employer is not to become indebted to the contractor until performance in all particulars, there is. no indebtedness owing to the contractor which may be reached in a garnishment proceeding until the terms of the contract have been performed. ”
Here, as has been said, the contract price for the work was payable “Upon the completion of the work.”
In the case 'of Medley v. American Radiator Co., 27 Tex Civ. App. 354, 66 S. W. 86, it was said: “In order for a fund or liability to be subject to garnishment, there must be no condition precedent, no' impediment of any sort between the garnishee’s liability and defendant’s right to be paid. ... We can imagine no liability subject to more contingencies than the balance which may become due on an uncompleted building-contract'entire in ‘its nature.” To the same effect see,-also, the cases.of: Cunningham Lumber Co. v. New York, N. H. & H. R. Co., 77 Conn. 628, 60 Atl. 107; White v. Hobart, 90 Ala. 308, 7. So. 807; Krogman v. Rice Bros. Co., 241 Mass. 295, 135 N. E. 161; National Exchange Bank v. Solberg, 175 Minn. 436, 221 N. W. 677; H. A. Grimwood Co. v. Capitol Bill Bldg. & Const. Co., 28 R. I. 32, 65 Atl. 304; Town of Gastonia v. McEntee Peterson Engineering Co., 131 N. C. 359, 42 S. E. 857.
The court below dissolved the writ of garnishment;, and we think no error was committed in this respect.
It is insisted that if the Wyatt Company may not recover their advances to Hansen through the garnishment proceedings, they should be accorded that right by way of subrogation.
The court below found — and the undisputed testimony sustains the finding, that the Wyatt Company, as-materialman, failed to give the owner, Friedman, the ten days’ notice required by § 8876, Pope’s Digest, and also failed, as materialman, to file their itemized statement of account with the Clerk of the Circuit Court within ninety days, as required by § 8881, Pope’s Digest, “but that plaintiff commenced this suit for a. lien on March 21, 1939, which the court finds was more than ninety days after the last article of material was furnished by plaintiff to the said contractor, Otto Hansen.”
We do not think that the request of the Friedmans that the Wyatt Company repair the leak in the roof, even though accompanied by the threat to sue for damages if this were not done, operated to substitute the Wyatt Company as original contractor, nor to subrogate it to the rights of Hansen to a lien under his contract. Hansen’s lien had not then 'been (nor has it ever been) perfected, and it could not be thus assigned.
In the case of Superior Lumber Co. v. National Bank of Commerce, 176 Ark. 300, 2 S. W. 2d 1093, it was said: “The lien for materials is purely a creature of the statute, and while it is assignable under our statute, the right to prosecute a mechanic’s lien is not assignable. Such liens must be perfected before they can be transferred or assigned.” As Hansen has never perfected his lien, it cannot be said that it has been assigned.
The Wyatt Company’s position is that of a creditor who had sold materials and had loaned money to a contractor who might have claimed a lien, but had not done so. That the transaction, so far as the money advanced is concerned, was a mere loan to Hansen is shown by the fact that interest at the rate of five per cent, was charged. In other words, the Wyatt Company might have protected itself by filing a lien as provided and authorized by statute, but it did not do so. Now, however, when a recovery is sought by way of subrogation and by the garnishment proceeding, its position is that of any other creditor.
The court below awarded judgment for the repair of the roof, and gave a lien for the cost thereof, but other relief was denied.
It is stated in the briefs of opposing counsel, although the fact does not appear in the record of .this case, that Hansen has returned to the State since the rendition of the decree from which is this appeal, and that he has sued Friedman for the balance which he alleges is due him under his contract. We cannot anticipate the result of this litigation. Hansen may not now, because of his failure to comply with the statute relating to ma-terialmen’s liens and their enforcement, have a lien declared in his favor; but, if the testimony warrants, he may recover judgment for any balance found to be due him. Certainly, Friedman should not be required to pay both Hansen and the Wyatt Company the balance, if any, which .he may owe on account of the remodeling of his home. The decree of the court below appears to be correct, and it is, therefore, affirmed. | [
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McHaNey, J.
Appellee, Willie Bowie, is a son of Monroe Bowie, deceased, who died testate and said ap-pellee is a beneficiary under his father’s will. The other appellees are Willie Bowie’s wife and his sister, Lena E. Goodwin, who brought this action for her brother as next friend, alleging’ that her brother was mentally incompetent. All the appellees are colored.
On February 24, 1934, Willie Bowie and wife conveyed by deed to appellant all his remaining interest in the estate of his father, which came to him as legatee under said will, for a consideration of $750 cash. The complaint alleged that said sum was grossly inadequate and that the reasonable value thereof was greatly in excess thereof; that Willie Bowie is upward of sixty years of age and wholly incapable of transacting business on account of his mental condition; that appellant persuaded him to part with his property, was an ex perienced business man, took advantage of him and perpetrated a fraud on him; and that said deed should be declared to be a mortgage.' The answer was a general denial. Trial resulted in a decree for appellees, in accordance with the prayer of the complaint, which rendered judgment for appellant for the $750 paid, less the sum received by him in the distribution of the funds of the estate, from which is this appeal.
We think the court erred in so holding. Shortly' after the execution and delivery of the deed to appellant, an attempt was made in the Ouachita probate court to have Willie Bowie adjudged insane and incapable of transacting business with the view of forming the basis for the present action, but the probate court, after hearing the testimony of Willie Bowie’s neighbors, and upon the court’s own personal knowledge, dismissed the petition, holding him to be sane and capable of transacting business. There was no appeal from said decision and appellant insists that .appellees are bound thereby and cannot, in this proceeding, insist to the contrary. Whether this be true or not, we do not now decide, as we are of the opinion that the great preponderance of the evidence is contrary to the finding and decree of the court that Willie Bowie is incompetent. Twelve, witnesses testified for appellees. Two of them were his sisters, one a sister-in-law, and one a nephew. Four others were colored friends. Three others were physician- experts and the other the lawyer representing the estate of Monroe Bowie. The gist of all the testimony of the lay witnesses, relatives and others, was that, in 1924, Willie Bowie had or was supposed to have had- an illness of some kind in Memphis, Tennessee, and that since said time, after he came back to Ouachita county, he has not been as active mentally as he was before; that since that time he has a poor memory; that the people around 'Camden generally regard him as not having a'good mind; that his brothers had a power of attorney from and attended to his business for him, the power of attorney being executed during the time of his supposed unsound mind; and that he is not as careful about his personal appearance as he formerly was, doesn’t comb his hair, shave and clean up as he once did. Several of these lay witnesses, including the attorney for G-eorgie Morris, administratrix of the estate and sister of Willie, testified that in their opinion he was incompetent to transact his own business. This was corroborated by three medical experts. Other testimony was that he would walk off without telling anyone where lie was going and wouldn’t tell where he had been when he came back.
On the other hand, appellant produced fourteen witnesses including himself and three physician experts, all of whom testified that Willie Bowie is as capable and competent as he had ever been; that they had noticed no change in him and that they regarded him as sane and mentally competent. None of these witnesses were related to appellant and none had any motive to swear falsely unless it might 'be said that the cashier of the bank of which appellant is the president and his attor--. ney who testified in his behalf might have had such a motive. In addition to the testimony of all these dis-' interested witnesses, there is the established fact that since said Willie Bowie came back from Memphis in 1924, he was put in the grocery business by his father, and brothers which he conducted for some time; that he has been engaged in farming; that he brought a suit against his sister, Georgia Morris, to compel her to handle the affairs of the estate correctly and honestly, and compelled her to do so by a judgment of the probate court; that said sister settled with him a $1,000 liability for about $400, and she offered to buy the same interest from him for which appellant paid $750 for about $400. Evidently at that time she regarded him sane and competent. There are many other facts and circumstances in evidence tending to establish his sanity and competence, but one of the most potent is the judgment of" the probate court, rendered subsequent to the conveyance, to the effect that he was sane and competent. When all these facts and .circumstances are properly considered, we think the evidence preponderates ■ in favor of appellant.
In Bryant v. Edgmon, 192 Ark. 20, 90 S. W. 2d 994, we restated the rule in this court in' determining where the preponderance of the evidence lies in chancery cases by quoting the language of Judge Wood in Leach v. Smith, 130 Ark. 465, 197 S. W. 1160, as follows: “But in chancery causes the procedure is entirely different. When chancery causes reach this' court on appeal, they are taken up for trial de novo on the record made up in the lower court, that is, on the same record, but the law and the facts are examined the same as if there had been no decision at nisi prius. In determining the issues of fact by this court in chancery causes, no weight is given to findings of fact by the trial court unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact 'by the chancellor are persuasive. But the issues of fact, as well as law, are tried by this court anew.”
Under this rule we hold that the decree of the court is against the preponderance of the evidence and must be, reversed and the cause dismissed. It is so ordered. | [
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Holt, J.
Appellee, Otto Wright, sued appellant in the Poinsett circuit court for damages to himself and his automobile growing out of an accident alleged to have been caused by the defective and unsafe condition of the crossing where appellant’s switch track crosses the concrete highway in the town of Hoxie, Arkansas. The allegations of negligence set forth in appellee’s complaint are that on and prior to November 8,1937, appellant was negligent in maintaining the crossing in question in that: “The cross-ties supporting the rails were in a decayed condition, had sunk deeper into the ground, and the spikes holding the rails had given way because of the decayed condition of said ties; the concrete or asphalt covering the ends of the ties on each side of the track had risen above the level of the highway so as to form prominent humps on each side of the track bordering each rail of the track on the outside thereof; the rails of the track, and those placed between them, had sunk several inches below the'level of the highway; that by reason of the prominent humps, as aforesaid, and the sunken condition of the rails and ties, as aforesaid, and the angle of intersecting said highway, as aforesaid, said crossing was defective, dangerous, and unsafe to the public in passing over it in the usual travel, all of which was known to defendant and the employees engaged, by defendant whose duty it was to properly maintain said crossing, and defendant was negligent in maintaining said crossing in the manner aforesaid; that in the forenoon of November 8,1937, plaintiff was driving his auto mobile northward from Hoxie to Walnut. Ridge upon the east side of said highway at a reasonable rate of speed ef about forty to forty-five miles per hour, and while he was doing so and while he was exercising ordinary care for his safety, he drove his car over said crossing, and, in passing over the crossing and because of its defective, dangerous and unsafe condition, as aforesaid, his car was suddenly and violently jerked, snatched, and bounced thereby causing the steering rod controlling the right front wheel and the rod which runs from one front wheel to the other to hold them in line to be sprung, thereby causing said car to leave the road and bear to the right and run across a ditch, strike a post and turn over, thereby demolishing plaintiff’s car and inflicting injuries to his person, all of which was caused by the negligence of the defendant in maintaining said crossing in the defective, dangerous and unsafe manner, as aforesaid.” He prayed for damages to his car in the sum of $300 and to himself in the sum of $2,700. Appellant answered denying each and every allegation of the complaint, and in addition set up the affirmative defense of the contributory negligence of appellee as a complete bar to a recovery. The case was submitted to a .jury and a judgment was returned for appellee and against appellant in the sum of $2,200.
The facts, as reflected by this record, stated in their most favorable light to appellee, substantially are: It is conceded by the parties that 1,000 cars passed the crossing daily where the accident occurred. Appellee Wright has been a resident of Hoxie for about twenty-five years and on November 8,1937, was a member of the town council of Hoxie. At the time of the- accident he owned and was- driving a 1935 model Y8 Ford tudor sedan. The car was in good condition. It was raining slowly at the time of the accident; and -appellee was driving north along concrete highway No. 67 from Hoxie toward Walnut Ridge. The concrete slab is 18 feet wide. The railroad track intersects this highway at an angle of about forty-five degrees and it was this crossing that he was negotiating at the time of the accident. Before he arrived at the crossing be was driving between forty-five and fifty miles per bonr and when within about 100 yards of it he released the accelerator, coasted onto and over the crossing at a speed of about forty-five miles per hour and when the car struck the crossing it bounced up as.if it had struck a log and shifted to the right.
Appellee’s version of what happened, in his own words, is as follows: ‘ ‘It got off the pavement. It began to scoot and I tried to straighten it up and back to the left on the pavement, and I found I couldn’t do nothing with the car so I tried to stop it. I thought I was at least, but since the accident and I got my wits together I found that I had the accelerator in place of the brake, and when the car left the highway it had rained enough to make the surface of the ground and the grass slick, and by that time I had got hold of the brake and that caused the car to skid, and I was pretty well excited — all those telephone poles and everything there. And all I remember the car turning over was one time and a half and it stopped on the railroad upside down.” ' The accident happened at about 9:30 a. m., Appellee had crossed this crossing at the same rate of speed many times before without accident.
On a day in the week following the accident he observed the condition of the crossing and saw high and low spots in the asphalt covering the ends of the cross-ties on each side between the pavement and the rails and there were other rails between the two rails of the railroad tracks running lengthwise with them, some low and some high. There were- humps in the asphalt higher than the pavement. He had never made an examination of the crossing before and was unaware of its condition. After he had crossed the crossing and had gone about ten or twenty feet he observed something was wrong with his car and had gone about fifty feet before his car left the pavement. After the wreck he found the radius rods to his car bent to a v-shape and his right wheel turned out to the right. Had noticed some vibration to the car in crossing over this crossing before.
The incorporated limits of Walnut Ridge and Hoxie join, Walnut Ridge being the larger of the two. A great many automobiles from out of the state, including large trucks, cross this crossing and continued to do so after the wreck. His car turned over one and one-half times and landed on the west main line of the railroad track. He has been driving a car for a good many years and is thirty-one years of age, does not have the reputation of being a dangerous driver. Considers a speed of fifty to sixty miles per hour fast.
Tom Norris, on behalf of appellee, testified that he saw appellee’s car as it went over the crossing going north. It seemed that he lost control of it and after it left the highway it turned over one and one-half times. He thought to himself the crossing was rough but did not look rough. You don’t have to drive over the crossing fast to cause your car to shimmy. He had been familiar with the crossing ever since it-was put in. Appellee’s car was going about forty miles per hour. There is a highway sign in Hoxie fixing the speed limit at twenty-five miles per hour and there is a city ordinance to this effect.
W. C. Cloyd, marshal of Hoxie, testified the asphalt ridges were about four inches higher than the rails; steel rails were laid between the main line rails, some of which reached entirely across the highway, some were in pieces, they were not all uniform in height. People drove on this highway No. 67 as fast as sixty miles per hour. To his knowledge no arrests for speeding on this highway have ever been made. Appellee is considered a careful driver. A seed truck about a year before the accident had turned over at this spur crossing, but he does not know just what caused it. If you could drive over the crossing straight it would not be so rough, but it is angling and causes the car to twist.
R. D. Moore testified that he had been acquainted with the crossing for about seven years and it is worse than it used to be. The average speed over it is between forty and fifty miles per hour. On November 8, 1937, its condition was such that in passing over it a car would be drawn to the side and this condition was worse going toward Walnut Ridge. He drove over this crossing every day for two or three weeks before the accident, sometimes making forty miles per hour, but never had a. wreck.
Oswell Sullens testified that the crossing in question is rougher than other crossings. He usually drives between forty and sixty miles per hour in going over the-crossing. The effect of going over the crossing is to-cause the front end of a car going toward Walnut Ridge-to jump; the crossing had been in that condition for quite a while before the wreck. -Since the accident he has-, lowered his. speed in going over this crossing. Never had. a wreck at this crossing.
Dink Williams testified for appellee that he had several years experience as a civil engineer and made a. plat of the crossing in question. He estimated the angle at" which the spur track intersects the highway to be about thirty degrees. Plat was made on February 3, 1938, and', the crossing appeared to be in the same condition then as-it was on November 8, previously; there was no evidence- or indication of anything new or changed about it. He hacT been acquainted with this crossing for several years. “On the south side of the crossing it seemed that the water or something had caused the asphalt to raise up there about" the railings at that end in there. The south side was about,, as I remember, about two and a half inches higher than the main rail that the train crosses over. There are-several other railings in there used to ráise the elevation between. The north side is about three inches-higher than the main rail.” The railings between the railroad rails were one to three inches out of line; off the level. The asphalt on the south side adjacent to the* south rail was about six inches wide and that north of' the north rail was about twelve inches wide. The rails-which were laid between the railroad rails were from one to three inches off level; their distance apart were-varied; they were not uniformly spaced. There is asphalt set between these rails, and some places are higher-than others. Spent about forty-five minutes making the, measurements on February 3, 1938, and several cars passed during that time, none having accidents, and they crossed at the usual speed.
Jess Maness testified that he has been a mechanic for fifteen years, is acquainted with the crossing. In driving north over it the left front wheel reaches the crossing first and it jerks the wheels. He tested his cars over this crossing because it would reveal any vibration in the front end of cars more than any other place; this is due to the roughness of the crossing and the way it is set in the highway. He has driven over this crossing, testing cars at various speeds up to sixty miles per hour; had crossed it many times up to ninety days before the trial; has never had an accident there, but does not cross fast in his own car for fear of damaging it. Anyone who drove over the crossing often should 'know where the humps were. The humps are on each side near the edges of the highway, between each lane of traffic, and in the middle of each lane. A car traveling forty or forty-five miles per hour and striking one of the humps on the crossing would have a tendency to bend the tie rod as it was bent on this car.
Tom Palmer, an automobile mechanic for fifteen years, testified that the crossing was rough on November 8,1937, and taking in consideration the angle at which it intersected the. highway and the humps, and if you hit it just right, it would throw you, and that would produce the condition that'the car was in after the wreck. He does not think driving the car into the ditch sixteen inches or two feet deep with the ground soft and muddy would cause that condition of the car; that condition, might be caused by running over a railroad track. In driving forty or forty-five miles per hour over the crossing he always picked the place to go. The right front wheel of the ear went into the ditch first at such an angle that the pressure on it would have a tendency to bind it in to the front instead of outward to the front.
On behalf of appellant, A. F. Bradford testified that he is a civil engineer employed by appellant, is acquainted with the crossing in question and on February 21,1938, made a plat of it. The crossing was constructed in conformity with Act of February 25,1913, Acts 1913, p. 328, and was in that condition on the date of the accident. From the crossing to the whistling post, where the wrecked car finally stopped, is a distance of 325 feet. The grade in the highway from a hundred feet on each side of the crossing has a three-inch rise. The space between the rails is filled in with ■ other rails, some-broken, and with asphalt. There is not much variation in-their heighth and distance apart, the'greatest variation from all four corners being about two inches. The angle •at which the crossing- intersects the highway has nothing to do with its roughness and does not know of any repairs in the crossing since its construction. Pictures of' this crossing were introduced in evidence. They were-made on a day when the pavement was dry.
Charlie Prentiss testified for appellants he had lived in Hoxie twelve years facing this highway and he counted the cars passing- his house one day and there were more-than one per minute. Appellee has the reputation of being a fast driver. He has seen others drive as fast as Wright did on this highway. Can’t say that the crossing is smooth and has observed cars shake as they went over it.
Willie Rackley testified that he rode with appellee from Hoxie post office to Red Star Service Station in Hoxie (two blocks) and felt unsafe and got out because of fast driving. Saw the Wright car as it hit the crossing and it appeared to be traveling faster than forty or forty-five miles per hour. Appellee’s car left the pavement at the street intersection just north of the crossing, the wheels turned to the right and it left the- pavement, cut. across the ditch toward the railroad track, turned over when it hit the ditch and struck a whistling post and bounced over onto the railroad track bottom side up. ■
Fred Frew, for appellant, testified that when appel-lee’s car hit the crossing it looked like the back end bounced up about eighteen inches high; could not see the front end; it seemed that appellee missed the highway beyond the crossing and hit the street intersection and turned over a couple of times.
Troy Pace testified that he had lived in Hoxie forty-two years and worked for the express company and. drives a taxi; crossed this crossing often at forty miles per hour and it is not dangerous. He is familiar with the hnmps at the crossing and if yon struck them it would cause your car to bounce, otherwise.there would he only a vibration. Some folks travel over it faster than he does; he was never thrown off the pavement there.
Appellant earnestly contends here that giving to the testimony of appellee its strongest probative value it falls far short of that substantial character necessary to support a verdict in his favor. Appellant also insists that the trial court erred in giving certain instructions after modifying same. After a careful consideration of the entire record, we have reached the conclusion that appellant’s first contention, to the effect that the evidence is not sufficient to support a verdict in appellee’s favor, must be sustained. It, therefore, becomes unnecessary to consider the other questions- raised by appellant. • -
Under the law it was the duty of appellant railroad company to exercise ordinary care, to keep and maintain the crossing in question in a reasonably safe condition for ordinary travel and this duty was a continuing one. The trial court in a proper instruction clearly stated this duty of appellant to the jury. The jury was also correctly instructed that any negligent act on the part of appellee, which caused or contributed to his injuries and consequent damage, would be a- bar to recovery.
The practically undisputed facts, as reflected by this record, show that appellee, a man thirty-one years of age, twenty-five years a resident of Hoxie, one of- its aider-men, entirely familiar with the crossing in question, at about 9:30 a. m. on November 8, 1937, while a steady rain was falling, drove his Ford Y8 sedan automobile at an admitted rate of speed of approximately forty-five miles per hour north on concrete highway No. 67 from Hoxie toward Walnut Ridge over the crossing in question, his car at the time being in excellent condition, that as he struck the crossing his car bounced and some twenty feet after passing over said crossing something seemed to pnll Ms car to the. right, he became excited, stepped on the accelerator instead of the brake and at a point about fifty feet from the crossing left the highway, went into a muddy ditch, turned over one and one-half times, ran into a whistling post and finally stopped with his car bottom side up on the railroad track 327 feet from the crossing.
Prom the photographs in evidence and the testimony of engineers, this crossing was constructed in compliance with the state law and at the time of the accident the depressions in it would not vary more than two to four inches. It is conceded that at least 1,000 cars a day, of all sizes and makes and at speeds up to sixty-five miles per hour, including trucks, passed over this crossing, and that from the date this crossing was constructed in 1926 not a single accident before this one had ever been recorded, except that a truck about a year before turned over at or near this crossing, but the cause of the mishap is not shown. It seems to us that there could be no better proof of the fact that appellant did use that degree of care required of it to keep and maintain this crossing’ in a reasonably safe condition for the ordinary use of the traveling public than that hundreds of thousands of cars negotiated this crossing safely, at all speeds, up to sixty-five miles per hour, up to the very time the accident in the instant case occurred, and the further fact that ap-pellee’s witness, Dink Williams, an engineer, made an examination of the crossing on February 3, 1938, eighty-seven days after the accident, and testified that at that time, to use his own words, “It didn’t look like anything new had been done to it previously. There was no sign of any work that had been done on the crossing before. ’ ’ On this date, eighty-seven days subsequent to the accident, it is admitted that at least 87,000 cars had passed over this crossing in absolute safety and without complaint from anyone. Also there is no evidence that any complaint was ever made to the Hoxie municipal officials that this crossing was in a bad condition. We think that under the evidence in this ca.se appellee’s own negligence was the proximate.cause of the accident and the injuries resulting therefrom. Unless we are going to hold that the appellant is an insurer there can be no recovery-in this case.
In St. Louis & San Francisco Railroad Company v. Dyer, 87 Ark. 531, 113 S. W. 49, this court states the duty resting upon a railroad company in cases of this character as follows: ‘ ‘ The law requires the railroad to use ordinary care to keep the crossing of the public highway over its tracks in a reasonably safe condition for'travel and crossing.”
And again in St. Louis, I. M. & S. Ry. Co. v. Smith, 118 Ark. 72, 175 S. W. 415, the rule is stated in this language : ‘ ‘ It is the duty of every railroad company properly to construct and maintain crossings over all public highways on the line of its road in such a manner that the same shall be safe and convenient to travelers.”
In Missouri Pacific Railroad Company v. Hare, 194 Ark. 441, 108 S. W. 2d 577, this court reiterated that the duty of the railroad company was that as set forth in the Dyer and Smith cases, supra. The rule followed by this court is very clearly stated in an Iowa case, that of Gable v. Kreige, 221 Ia. 852, 267 N. W. 86, 105 L. R. A. 546, as follows: “The company owes only the duty to keep the highway in a reasonably safe condition; to put in as safe condition as highways usually are kept for travel. It is not bound to make the highway more safe than highways usually and ordinarily are made and kept for travel. Prom our common observation we all know that in nearly every mile of the highways of the country there are to be found depressions or ridges, or other inequalities of surface, which do not interfere with the safe use of the highway when traveled over in the usual and ordinary method, but which are sufficient to .jolt vehicles passing over them. The severity of the jolt would depend, of course, largely upon the speed at which the vehicle is moving at the. time it passes over. There is no duty resting upon a railway company to keep the surface of the road, at the •crossing, so smooth and free from all inequalities that no jar or jolt will be caused by vehicles passing over the crossing.”
In another Iowa case, Harris v. Chicago, M., St. & St. P. Railway Co., 278 N. W. 338, the court held: “While the court will take judicial notice of the diff erence in the usual means of transportation of the horse and buggy days and the present high speed automobiles, there is no duty to maintain a roadway more safe than roadways usually are; it is commonly known that roadways generally. contain depressions and ridges sufficient to cause jolts to vehicles passing over them, the severity of the jolt depending upon the speed of the vehicle, and the burden rests on the plaintiff to show that the crossing is not suitable for the present conditions.”
Again in Myers v. Chicago, M. & St. Paul Ry. Co., 101 Fed. 915, the court said: “As already said, this inequality in the surface of the crossing had existed for years, and its position was such that it must be passed over by every vehicle that was driven over the crossing. It was not shown that it had ever caused, .or aided in causing, an accident other than the one in which plaintiff was injured. By itself, it was not a self-operating or efficient cause of the accident.”
Under the facts in this case we think it just as probable that the manner in which appellee was driving his car at the time of the accident was the proximate cause of the wreck and consequent damages as that a defect in the crossing might have been the canse. Juries may not base verdicts on speculation or conjecture. This court in the recent case of Marathon Oil Company v. Sowell, 191 Ark. 865, 88 S. W. 2d 82, said: “If presumptions are to be indulged in, and they aré not, it is just as reasonable to presume that the method and manner of driving the truck was the cause of the accident as it is to presume that the defective condition of the. truck caused it. It might have been caused by the speed of the truck in the loose gravel. It might have been caused by the negligence of the driver in failing to watcli the road and to observe the curve which he was approaching on a down grade. It might have been caused by any number of reasons as well as the defective condition of the truck. The law, however, does not permit verdicts and .judgments to. rest upon speculation and conjecture. National Life & Accident Insurance Co. v. Hampton, 189 Ark. 377, 72 S. W. 2d 543. It is the general rule in this state that in an action for personal injuries caused by the negligent conduct of another, no recovery can be had, in the absence of evidence showing it to have been the proximate cause of the injuries complained of. As stated by Judge Hart in Mays v. Ritchie Grocery Co., 177 Ark. 35, 5 S. W. 2d 728: ‘It is also a general rule in this state that, in order to warrant a finding of negligence was the proximate cause of an injury, it must appear that the injury was the actual and probable consequence of the negligence and that it ought to have been foreseen in the light of attending circumstances.’ ”
We conclude, therefore, that the trial court erred in refusing to instruct a verdict in favor of appellant' at the conclusion of the testimony, and since the case seems to have been fully developed it will be reversed and dismissed.
Humphreys and Mehafey, JJ., dissent. | [
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Baker, J.
This snit was instituted by the appellant to procure a divorce upon the alleged grounds of personal indignities. There is a voluminous record in this case and upon a full and complete examination of it we think the appellant has established, by a preponderance of'the evidence, his action against the defendant, and that he is entitled to a decree of divorce on account of personal indignities suffered. The record discloses a series of charges or allegations made by the appellee against the appellant of misconduct most of which were not even supported by her own testimony. The most serious of which, when considered in the light of all the facts developed, turn out to be perversions, if not intentional misstatements of facts. There are baseless conclusions and unjustified suspicions all of which were continuously asserted, and persistently pursued beyond all reasonable bounds, and to us it appears that the only hope of relief is a divorce making the separation permanent.
By way of explanation it may be said that appellant and appellee were hard working people and frugal in their habits. They were home-owners, and as they approached middle-age they were able to have and enjoy more than the ordinary comforts, if not luxuries of life. Their associates were people of the same type, who likewise were able to possess and enjoy the finer things of our modern civilization. They too had, by their own industry and management, accumlated their own family fortunes. Though the exigencies of the times separated Ihe members of this prosperous community, they were able to visit back and forth between points in the extreme west, and their old home where nearly all of them were born and reared. At this period of middle life, for nearly everyone mentioned or involved, in this nnnsnal, but sad denouement had reached that age, the appellee began to make charges of improper conduct of her husband, the appellant, and several of these married women with whom they had always associated upon equal social terms. The unfounded jealousies led on to baseless charges, so tainted with suggestions of improprieties and lustful implications as to become a general and continuous disturbing matter in family life. If appellant and appellee were alone the affected parties,.there would be perhaps a modicum of reason to set out particulars. But since there are a number of women whose names-appear in this record whose embarrassment by such a discussion would be inexcusable, we must refrain from setting forth details.
Let it be said as conclusive of all controversies that good women who have helped to build the family fortunes, mothers of children in their young manhood and womanhood, are not to be recklessly charged with even indiscretions. They are the salt of the earth.
We refuse to believe these baseless charges affecting so many who have always, except for those insinuations, lived untouched by rumor and gossip.
It must now be sufficient to say in this case that unless we are willing to believe that all the women with whom the appellant and appellee associated for the several years that they lived together were either immoral, or so indiscreet that their conduct took on the appearance of immorality, then we are forced to conclude that appellee’s consistent and habitual accusations were wholly unjustified, that they were cruel, meant to harass and annoy and to bring about the natural results that ensued — a separation.
It follows the trial court should have granted appellant a decree of divorce.
The parties to this litigation have practically settled for themselves their property rights. The respective properties upon which .each has lived for the last two o.r three years are occupied and held by them as separate possessions; the appellee lives upon property in town which she says was bought by their partnership funds and which was improved by their .joint labors and by funds which they had accumulated therefrom. This was conveyed to her as her individual property. The farm upon which the appellant lives was considered by them as being approximately of the same value as the city or town home, and he has had the exclusive control thereof, together with the rents and profits therefrom since the separation. It was agreed between them at one time that another or smaller farm, upon which neither lived, would 'be sold and the proceeds be divided. This agreement, no doubt, would have been enforced, had a decree of divorce been granted. It is, perhaps, a settlement as favorable to the appellee as she could insist upon and more than has been yielded to her by the decree of the Chancellor in which she was the successful party.
On account of the property involved, this cause is remanded to the chancery court, with directions to grant a decree of divorce to the appellant, and, further, if appellant and appellee are unable to.make any other or preferred settlement as to property rights, to confirm title of each in the property occupied by them respectively and to partition, by sale, the other piece of property by the appointment of a commissioner, and after the sale and payment- of expenses of this litigation not already paid, to divide equally between them proceeds therefrom. | [
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McHaNey, J.
All the parties to this action are residents of the city of Fort Smith. Appellee is engaged in the bottling business there under the name of Dr. Pepper Bottling Company. This litigation grows out of a collision on Garrison Avenue in said city, of appellee’s truck driven by one Plunkett with a Chevrolet automobile driven by appellant Adams as agent of appellant Rusher who was riding with Adams at the time of the collision which occurred on August 26, 1938.
Thereafter, on September 9, 1938, appellee brought this action against appellants in the Sebastian circuit court, Fott Smith district, to recover the damage done to his truck alleging negligence in the operation of said automobile and service was had on them on said date. On October 3, 1938, appellants filed their joint answer, attacking the .jurisdiction of said court upon the ground that prior to September 9, to-wit, on September 1, 1938, they had filed suit against appellee and said Plunkett in the Crawford circuit court seeking to recover damages for personal injuries sustained by each of them in said collision, in the case of Adams, $10,000.00, and in the case of Rusher, - $5,000.00. It was alleged that service was had upon appellee and Plunkett on September 1, — upon appellee in Crawford county, which return shoAvs that it was had by serving* another truck driver of appellee, and upon Plunkett in Sebastian county; that the Crawford circuit court thereby obtained exclusive jurisdiction to hear and determine said cause; that on September 30, 1938, an adjourned day of the Crawford circuit court appellee appeared specially therein. and moved to quash service upon him, which was overruled; that he then moved to have the complaint made more definite and certain, which was conceded, and the complaint amended; and that thereafter appellee and Plun-kett filed separate answers denying the allegations of negligence and pleading contributory negligence, and that appellee did not set up any counter-claim or cross-action against appellants. He did set up the fact that he had brought the action above -mentioned in the Sebastian circuit court and that said cause had been set for trial for October 4, and for that reason he was not filing any counter-claim or cross-action in the Crawford circuit court. The prayer was that appellee’s complaint be dismissed or in the alternative that the action be abated, pending the outcome of the previous action in the Crawford circuit court. Appellee demurred to this answer on the ground that it “does not contain facts sufficient to constitute a defense in law or grounds for abatement.” The trial court sustained this demurrer over appellant’s objections and exceptions. They elected to stand on their answer and plea. On October 20, the case came on for trial, appellants were adjudged to be in default, a jury was empaneled to determine the amount of damages, and a verdict was returned for appellee for $250.00, on which judgment was entered. The case is here on appeal.
The sole question, therefore, is: Hid the trial court have jurisdiction or should it have abated the action pending trial in the Crawford circuit court?
It cannot be doubted that the Crawford circuit court had jurisdiction of the subject-matter, and, for the purpose of this opinion, we assume it had jurisdiction of the parties, although all of them, plaintiffs and defendants, resided in Fort Smith in Sebastian county. It is also true and cannot be doubted that, but for the filing of the prior suit in Crawford county, the Sebastian cir cuit court had jurisdiction of the subject-matter and the parties. Did the filing* and pendency of the prior action in the former court oust the jurisdiction of the latter? We think this question must be answered in the negative. In contending that it did, we think counsel for appellants have misconceived and misconstrued the statute and the decisions of this court applicable thereto. The statute relied on is § 1416 of Pope’s Digest which provides what “the answer shall contain” in four paragraphs, the first and second not being applicable here. The third and fourth paragraphs are as follows: “Third: A statement of any new matter constituting a defense, counterclaim or set-off, in - ordinary and concise language, without repetition.
“Fourth: In addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense, counterclaim or set-off, whether legal or equitable, as he shall.have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished.”
It is insisted that, since the passage of act 54 of 1935, in which the word “must” as used in paragraph four above was substituted for the word “may” as used in the prior statute, it is imperative that a “defendant must set out in his answer as many grounds of defense, counterclaim or set-off, whether legal or equitable, as he shall have.” If appellee had gone to trial in the Crawford circuit court, without pleading his cross-action .by way of counterclaim or set-off, he would have undoubtedly beén thereafter barred of his right to maintain his action in the Sebastian circuit court, if pleaded, as it would have been res adjudicata, as held in the recent case of Morgan v. Rankin, ante p. 119, 122 S. W. 2d 555, relied on by appellants.
In Morgan v. Rankin, supra, Mrs. Rankin sued Morgan and another for the wrongful death of her husband, which grew out of an automobile and truck collision in which Morgan was injured and Rankin killed, long after Morgan had sned the estate of Rankin, recovered judgment, and it affirmed by this court on appeal. She did not file a cross-complaint in Morgan’s suit against the estate, of which she was the administratrix, to recover for the wrongful death of hér husband, but went to trial on a general denial and a plea of contributing negligence. In this situation we said: “The widow, as ad-ministratrix of her husband’s estate, had the right, and, we think, was under the duty of litigating, in the suit against her as administratrix, all the questions which she raised in the suit later brought for her personal benefit.
“If one participant in an automobile collision may, when sued by the other, waive the right to assert his own damages as a result of the collision and later sue for such damages in a separate suit we may reasonably expect two suits in many of such cases, and a more prolific and profitable field of litigation will be opened up than existed in the case of suits by guests against their hosts, before the passage of our guest statute on that subject.
“We think the present cause of action was barred by the former suit, and the judgment here appealed from awarding damages to appellee will be reversed, and the cause dismissed.”
It was barred because it was res adjudicatei.' That is a wholly different situation from that presented in this case. Here, appellants sued appellee and Plunkett in the Crawford circuit court, and eight days later, ap-pellee sued appellants in the Sebastian circuit court, long. before he was required to answer in the Crawford circuit court. The parties in the latter were not the same as in the former. Plunkett, appellee’s driver, was a defendant in the former, but was not a party in the latter. Neither was there the same cause of action in both cases, although both cases arose out of the same collision. In the former, appellants sued appellee and Plunkett to recover damages for personal injuries, while in the latter, appellee alone sued appellants for the damage to his truck. Section 1411 of Pope’s Digest provides that the defendant may demur to the complaint where it appears on its face: “Third. That there is another action pending between the same parties for the same cause.” It has been several times held that if the pendency of the other action is not shown on the. face of the complaint, so as to make it open to demurrer, it may be taken by answer, and if not taken by either it is waived. Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8; Board of Directors v. Redditt, 79 Ark. 154, 95 S. W. 482. Appellants undertook to raise the question here by answer, but it would appear to be sufficient to say that the parties are not the same nor are the two actions the same.
In the recent case of Anderson v. Erberich, 195 Ark. 321, 112 S. W. 2d 634, a similar situation existed. A collision between a truck driven by Erberich and an automobile driven by Anderson resulted in personal injuries to both. Anderson sued Erberich’s employer in the Crawford circuit court and Erberich sued Anderson in the Sebastian circuit court and recovered judgment against him. In disposing of the question of the jurisdiction of the latter court on account of the pendency of the former suit, this court said: “It is first insisted that the Sebastian circuit court had no jurisdiction of the cause of action, for the reason that jurisdiction of the cause had been acquired by the previous suit filed in the Crawford circuit court. A sufficient answer -to this insistence is to say that appellee was not a party to that suit. ’ ’
In Church v. Gallic, 76 Ark. 423, 88 S. W. 979, it was held to quote the language of this court in Sims v. Miller, 151 Ark. 377, p. 386, 236 S. W. 828, that “If more than one action between the same parties and with reference to the same subject-matter is pending the first judgment rendered in either action bars the other action, regardless of priority of commencement.” In the latter case it was held, to quote a syllabus, that: “The mere filing of a complaint in one court while another' action is pending in another court of this state does not operate as a dismissal of the prior action; the pendency of a prior action being ground of demurrer if it appears on the face of the complaint, or of defense by answer if it does not so appear.” This statement is of course conditioned on tlie fact tliat tlie parties are tlie same and tlie subject-matter tlie same as they were in tliat case, Miller being the plaintiff and Sims the defendant in both actions and in both Miller was seeking to recover a sum claimed due for breach of a written contract.
Appellants, also, rely on Dunbar v. Bourland, 88 Ark. 158, 114 S. W. 467, and Vaughan v. Hill, 154 Ark. 528, 242 S. W. 826. The latter case cites the former to support this statement:' “When a case is brought in a court of competent jurisdiction, the authority and control of that court over the case continues until the matter is disposed of in the appellate court. The principle is essential to the proper and orderly administration of the law.” In the former the parties and the subject-matter were the same and in the latter, the above statement was made in holding that a court of equity has jurisdiction to enforce an attorney’s lien and that the court erred in removing such a suit to a court of law over appellant’s objections. Like or similar distinctions exist in all the other cases cited by appellants.
We think that the necessary effect of § 1416 of Pope’s Digest, as quoted and as construed by our decisions, is that if a defendant goes to trial without pleading any cross-action he may have, he may, thereafter, be barred from maintaining it, but that the mere pendency of an action in one court against two defendants does not preclude one of them from maintaining in another court of concurrent jurisdiction an independent action growing out of the same incident, where the subsequent action is first brought to trial.
It necessarily follows that the judgment must be affirmed. | [
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McHaNey, J.
Appellant is the owner of the west one-half of the southwest one-fourth of section 8, township 12 south, range 2 west with other lands in the same section, township and range, in Desha county. Appellees are the owners of the northwest one-fourth of section 17, same township and range, and the dispute between the parties arises over the location of the 'boundary line between their respective lands. Appellant brought this action to settle this dispute and to enjoin appellees from removing a tenant house and outhouses in the disputed strip and from interfering with his tenants. Believing himself to be the owner appellant made certain improvements on the north side of appellees’ property and, in 1934 or 1935, put a fence far enough south to enclose said improvements. In 1938, appellees had a survey made by the county surveyor, which showed the house built by appellant to be 79 feet south of the true section line between sections 8 and 17, and 81 feet east of the line between sections 17 and 18. They tore down the fence built by appellant and put it on the line established by the surveyor. They defended on the ground that they owned all the land in the northwest one-fourth of 17, and that appellant had built his fence and improvements on their land. Trial resulted in a decree for ap-pellees, dismissing the complaint for want of equity and dissolving the temporary injunction theretofore granted. In doing so the court found that the line established by the county surveyor between sections 8 and 17 was the correct line and that appellee’s fence is on this line.
In the trial appellant made some contention that ap-pellee Snow, was wrongfully in possession of some of his land by a fence built around the north one-half of the southeast one-fourth, section 8, owned by Snow, but the court found as to this that Snow had been in adverse possession of all that was under fence for more than seven years, which the evidence established.
This appeal involves principally a question of fact. As we understand it, neither party is claiming more land than is covered by his description. Appellant acquired title to his land in 1918 and appellees in 1924. Sometime later, appellees built a fence on their land running east and west, but not on the north line. Their land extended beyond this fence and they say they left this for wood. Appellant did not undertake to inclose his land with a fence until 1934 or 1935. Believing appellant had built his fence on their land, appellees had the survey mentioned above made which the court found to be correct and we cannot say this finding is .against the preponderance of the evidence.
Appellant contends that there was an agreement to settle the boundary dispute, but if so there was no mention made of it in his complaint. No joint survey was ever made and we can find no reason to reverse the decree rendered oil this account.
He also contends that he has been in possession for more than seven years and has paid the taxes for more than fifteen years under § 8921 of Pope’s Digest. But appellant has not been in possession for seven years. His fence was built inclosing the land in dispute in 1934 or 1935. It is true he has paid the taxes on the west one-half of southwest one-fourth of 8 for more than fifteen years, but he has never paid any taxes on the northwest one-fourth of 17, — the land of appellees. So neither the seven nor the fifte'en-year statute affords him any relief.
It is further argued that the court should have allowed him judgment for improvements. In Marlow v. Adams, 24 Ark. 109, it was held that a party in possession of lands, who fails to establish his title thereto, cannot be allowed for improvements more than the value of the rents. And in McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88, it was held that at common law there could be no recovery for improvements by the possessor against the true owner; that the true owner was entitled to the improvements even against a bona fide possessor; but that equity adopted the doctrine requiring the value of permanent improvements placed by a bona fide possessor to be off-set against the rents and profits, whenever the true owner applied to equity for an accounting by the possessor .of the rents and profits. In this case there is no demand by appellees for rents and profits, and appellant cannot recover for his improvements. Not having color of title to the disputed strip of land he cannot claim under the betterment statute, § 4658, Pope’s Digest. See, also, Foltz v. Alford, 102 Ark. 191, 143 S. W. 905, Ann. Cas. 1914A, 236.
Affirmed. | [
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George Hose Smith, Justice.
This is a petition filed by the appellant, Shirley Grumlin, against her former husband, the appellee Janies Gray, by which Mrs. Grumlin seeks to regain the custody of their four children. Three of the children are girls, the oldest now being fourteen years old. The youngest child is a boy of seven. Mrs. Grumlin appeals from an order by which the chancellor refused to disturb an earlier order vesting custody in the father.
Our review of the record convinces us that the preponderance of the testimony is clearly in Mrs. Grumlin’s favor. Inasmuch as our decision in this case is not apt to be of marked value as a precedent, no two child custody cases being alike, we shall not attempt to narrate all the facts in detail.
The original divorce decree is not in the record. It appears, however, that the appellant was awarded the divorce in the State of Texas in 1963. The decree vested the custody of all four children in the mother. The father, either then or later on, was directed to pay $25 a week for the support of the children.
After the divorce proceeding the appellant moved to California with the children. For some time she supported the children herself, with practically no assistance from the appellee. In December of 1965, however, the appellant was afflicted with a serious disease and was no longer able to work. She had no recourse except to send the children to their father in Fort Smith, Arkansas, bat she explained in a letter to Gray that she was not giving up the children permanently and wanted to have them hack if she should regain her health and he able to take care of them.
After the children arrived in Fort Smith the appellee went to the chancello]' and obtained an order terminating his obligation to make support payments. In the same order the court, without notice to the mother, vested the custody of the children in the father. We mention the fact that there has apparently never been any judicial finding that Mrs. Grumlin is unfit to have the children in her care.
By 1967 Mrs. Grumlin liad married her present husband, had completely recovered from her illness, and had begun her efforts to regain the children. For a year or so she lived in Ohio, but her former husband was not co-operative either in permitting her to communicate' with the children or in facilitating her efforts to have them visit her. Eventually Mr. and Mrs. Grumlin moved to Fort Smith, where they apparently intend to make their permanent home. Upon the record there can be no serious suggestion that Mrs. Grumlin has abandoned her children or that her steadfast devotion to them has wavered.
At the hearing in the court below the proof indicated that it is to the best, interest of the children that their custody be transferred to their mother. The children have not fared too well while they have lived with their father and his present wife. The home, is cramped for space. Both Mr. and Mrs. Gray are employed. The four youngsters are looked after during the day by the present Mrs. Gray’s two children by a former marriage, neither of whom seems to be an ideal person to stay with the young Grays. The Gray children are also decidedly in need of dental care, one of them having eleven cavities in her teeth at the time of the hearing.
Mrs. Grumlin lives with her mother in a home that appears to be a desirable place for the children to live. At the. time of the trial Mrs. Grumlin was not working and was free to look after the children during the day. Grumlin is employed and is able to support his wife’s family. The couple attend church regularly.
We are convinced by the record before us, as we. said at the beginning, that custody should be vested in the mother. It should be added that in reviewing the case we have been greatly handicapped by having no information about the reasoning that led the chancellor to deny Mrs. Grumlin’s petition. The chancellor stated his ultimate conclusions in a letter-opinion to counsel, but lie did not detail the factual basis for his decision, lie did say — and this is perhaps a clue to his thinking— that he had talked with the children privately in chambers and had reviewed a Welfare Department report, which is not in the record. We can attach no weight, however, to undisclosed information that rests only in the breast of the trial judge. The difficulty is not only that the litigants have no opportunity to rebut such matters, but also that it is impossible for this court to review a case on any basis except the evidence in the record. Walker v. Eldridge, 219 Ark. 594, 243 S.W. 2d 638 (1951).
The decree must be reversed and the cause remanded for the entry of a decree vesting custody of the four children in Mrs. Grumlin, with reasonable visitation privileges in Mr. Gray, and for such further proceedings as may be appropriate.
Jones, J., dissents. | [
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GrieeiN Smith, C. J.
The question is whether a receiver for an insolvent foreign corporation is entitled to certain funds in preference to an attaching creditor.
Stipulation of counsel shows issuance to appellees of a policy of automobile liability insurance by Republic Underwriters; damages; adjudication of insolvency March 30, 1938, by a Texas district court and appointment of Curtis E. Hill'as receiver; appellees’ suit against Republic Underwriters, with garnishment of insurance company funds in a Little Rock bank; the bank’s answer showing $502.50 on deposit; appointment (by the Pulaski circuit court, April 18, 1938) of Willis Y. Lewis as ancillary receiver in Arkansas; intervention of Lewis, filed the day he was appointed; intervention (May 7, 1938) of Curtis E. Hill. It was further stipulated that claims of Arkansas creditors of Republic Underwriters amounted to $14,000.
Counsel agree that § 7608 of Pope’s Digest is the applicable statute, and that, in effect, garnishment is attachment. In the instant case the writ was served April 1, 1938.
Since it is the duty of a receiver to intervene where the insolvent debtor’s property . . . “has, within ten days before the filing of such petition, been attached,” . . . and since Hill was appointed in Texas prior to garnishment, and the appointment and intervention of Lewis were more than ten days subsequent to garnish ment, appellants, if tliey are to prevail, must look to the intervention of Hill, whose appointment predated service of the writ. . ■
Appellants insist that . . . “in any case in which a receiver is appointed by a court of competent jurisdiction within ten days from the running of an attachment or garnishment upon the assets or funds of an insolvent, that receiver has the right to intervene” . . . and secure a dismissal of the lien.
It is urged by appellants that the case at bar is ruled by Standard Lumber Company v. Henry, 189 Ark. 513, 74 S. W. 2d 226, where it was held that the attachment statute was applicable to foreign corporations. It is true the opinion holds that foreign corporations are included, but it is also said that assets of such corporations were rightfully determined . . . “as belonging to the state receivership for administration and distribution by the court of this state; and, after paying cost of administration in this state, so much of the balance as may be necessary should be distributed to creditors in this state pro rata according to law or the rule's and usages of equity courts, and any balance remaining should be paid to the' domiciliary receivership. ’ ’
In the Henry Case the 'first writ of garnishment was served May 11. A second writ was served May 15; and on May 16 the ancillary receiver was appointed. Inasmuch as the opinion does not show when the receiver intervened, we must assume that the question was not controlling.
Clearly, the Arkansas statute authorizes a receiver to intervene in all cases where property of the insolvent debtor has been attached, if such action is taken within ten days following the filing of the insolvency petition. If the petition. contemplated by the statute is the petition filed in the Texas district court, appellants are correct in their contention that the actions of Hill and Lewis relate back to March 30, 1938, and the attached fund should be released.
This construction, however, is not sustained by the cases. The rule seems to be that where citizens of a state, who are creditors of a non-resident, or a foreign corporation, have instituted proceedings in attachment, and have acquired liens upon property in the state of their residence, receivers appointed in the domiciliary state will not be allowed to deprive such creditors of their rights, and the courts will protect the lien acquired by their own citizens, in preference to the claim or right asserted by the foreign receiver. We have held that, under our laws, creditors of this state can sue out orders of attachment and writs of garnishment against a nonresident or a foreign corporation, and cause the same to be levied upon property in this state, and subject the same to sale, and . . . “No receiver of the nonresident or foreign corporation appointed in another state can defend the attachment by garnishment levied or served before he acquired possession, by virtue of rights acquired solely by his appointment and qualification. No consideration of comity will induce the courts to prefer him to the creditors; hut they will enforce the claims of our own citizens in preference to the orders of the courts of another state.”
It is said in 53 Corpus Juris, § 675, that an ancillary receivership . . . “is not a mere continuance of or incident to a suit in which a primary receiver is appointed; the two proceedings are independent, and the original and ancillary receivers are to he treated as different legal persons.”
In Standard Bonded Warehouse Co. v. Cooper and Griffin, Inc., 30 F. 2d 842, in opinion written hy Judge Hayes of the district court for the western district of North Carolina, there is the following declaration of the law: “The defendant contends that the appointment of the ancillary receivers hy this court on the 10th of October, 1928, had the effect of recognizing the appointment of the receivers by the district court of South Carolina, . . . and that, when these ancillary receivers were appointed here, this appointment had the effect of dating back and taking effect as of August 25th; hut the court is of the opinion that the lien acquired hy the plaintiff by virtue of his attachment could not. he divested by any such method. ’ ’
It is our view that the lien secured under the garnishment was not divested by intervention of the appellants, more than ten days having elapsed between creation of the lien and intervention of the receivers, or either of them.
In dealing with the rights of appellees, the litigation will he treated as though the petition mentioned in the statute was filed when the ancillary receiver Lewis ivas appointed; at which time the right to have the garnishment proceedings dismissed had been lost.
Affirmed.
Smith, J., dissents.
Pope’s Digest, § 7608: “The receiver shall intervene in every ease in which the property of such insolvent debtor has, within ten days before the filing of such petition, been attached, and, upon such receiver’s motion, every such attachment shall be dissolved, and the attached property shall be turned over to such receiver upon the payment by the receiver of all costs which shall have accrued in the attachment suit.”
It is argued by appellants that “The statute was never intended to mean, and does not mean, that the receiver must file Ms intervention witMn ten days from the levying of the attachment or the garnishment, but it does mean that the receiver has the right to intervene and secure a dismissal of the lien if and provided that receivership is decreed by the court within ten days from the running of the attachment or garnishment. That this construction of the statute is a true and correct interpretation of it will clearly appear by reading § 7607, Pope’s Digest, and noting that the ‘petition’ referred to is the petition filed by the insolvent, and in reading § 7608, the ‘petition’ likewise refers to the insolvent’s petition, and not to any petition to be filed by the receiver.”
In the Henry Case rights of attaching creditors of an insolvent foreign corporation and a receiver appointed in this state were involved. A part of the opinion is: “Neither can we agree that as a sequence of this view the assets of a foreign corporation in the hands of a state receiver must pass from this state to the state of the domicile of the- foreign corporation for administration and distribution. It is well settled by authority that a foreign receivership can not divest the possession and control of property situated in this state as against the rights of the citizen creditors of this state. No rule of comity is breached by enforcing our own laws in preference to the laws of other states. Choctaw C. & M. Co. v. Williams-Echols Dry Goods Co., 75 Ark. 365, 87 S. W. 632, 5 Ann. Cas. 569, and authorities there cited.”
High on Receivers, Third Edition, § 47.
Choctaw Coal & Mining Co. v. Williams-Echols Dry Goods Co., 75 Ark. 365, 87 S. W. 632, 5 Ann. Cas. 569; Holbrook v. Ford, 153 Ill. 633, 39 N. E. 1091, 27 L. R. A. 324, 46 Am. St. Rep. 917; Humphreys v. Hopkins, 81 Cal. 551, 22 Pac. 892, 6 L. R. A. 792, 15 Am. St. Rep. 76; Catlin v. Wilcox Silver Plate Co., 24 N. E. 250, 8 L. R. A. 62, 18 Am. St. Rep. 338; Zacher v. Fidelity Trust & S. V. Co., 106 Fed. Rep. 593; Taylor v. Columbian Ins. Co., 14 Allen 353; Hunt v. Columbian Insurance Co., 55 Me. 290, 92 Am. Rep. 592; Gilman v. Ketcham, 84 Wis. 60, 54 N. W. 395, 23 L. R. A. 52, 36 Am. St. Rep. 899; Willitts v. Wait, 25 N. Y. 577; Smead v. Chandler, 71 Ark. 505, 76 S. W. 1066, 65 L. R. A. 353, 23 R. C. L., p. 144, § 153. | [
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Lyle Brown, Justice.
The parties in interest on appeal are the appellant, Lorine Andrews Smith, Administratrix, and Chicago, B-.I. & P.R.R. Co., an appellee. Bussell C. Smith was fatally injured in a crossing accident at Carlisle. His administratrix brought suit against the railroad company, Noel Perkins, and Harold Snyder. A verdict was directed in favor of Snyder and Perkins was found to he free of negligence. The jury apportioned the negligence, 70% to the deceased, Smith, and 30% to the railroad company, which of course resulted in a judgment for the railroad. The solo contention on appeal is that there was a colloquy between the trial judge and the jury foreman which con fused the jurors to the prejudice of plaintiff administratrix.
The certified transcript shows that the jury executed six interrogatories but before announcing the findings this conversation transpired:
EOREMAN:
We have a question, we don’t know if it should be asked in secret.
the court:
No sir. There is nothing in secret, it should be in open court.
EOREMAN ;
It has to do with the amount. We have figures, we are not sure whether this figure is supposed to correspond with some figure, the way we understand it you just want the dollar figure.
the court:
What one do you refer to?
EOREMAN :
Number Six.
THE COURT:
I think that would be just dollars.
EOREMAN :
That is what we thought. We wanted to be sure.
The conversation was there ended and the record recites that the foreman thereupon read “in the presence of the other members of the jury, the parties and their attorneys and the court the interrogatories agreed upon by the jury.” The interrogatories were handed to the judge and the jury was discharged. Interrogatory number one found Russell C. Smith guilty of negligence. Number two found Noel Perkins free of negligence. Number three found the railroad guilty of negligence. Number four fixed Smith’s negligence at 70% and the railroad’s at 30%. Number five fixed damages to the estate at $900. Number six found that Lorine Smith and the next of kin sustained damages of $25,-000.
The foreman did not designate the figures to which he referred when he said, “we have figures, we are not sure whether this figure is supposed to correspond with some figure.” Surely he must have been referring to various dollar figures that had been introduced in evidence or suggested in closing arguments. That conclusion is more logical than the novel reasoning advanced by appellant, namely that the answer given by the judge to the jury affected their answers to the interrogatory concerning percentages of negligence. In fact, the record reflects that at the time of the conversation between the judge and the jury foreman, the interrogatories had already been executed. In oral argument, appellant’s counsel contends that the jury returned for further deliberation after questioning the trial judge, but that assertion is contrary to the record.
It is undisputed that no objection was made to the completed interrogatories or to the conversation between judge and jury until days after the jury had been discharged. Before the discharge of the jury appellant had a right to have the. jurors polled. She had a right to call for corrective measures to cure any apparent confusion caused by remarks of the trial judge. Further she had a right, and duty, to then and there call any irregularities to the attention of the trial court. Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, 153 S.W. 256 (1913).
Three clays after the trial the administratrix secured from each of the jurors an identical affidavit. Those affidavits stated that the jurors were misled by the responses made by the trial judge to the questions asked by their foreman. The affidavits were filed with the trial court in support of a motion for new trial. The trial court, and properly so, apparently gave no consideration to the affidavits. Nor do we consider them on appeal. Testimony or affidavits of jurors cannot be used to impeach a verdict except in instances where the verdict was reached by lot. Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291 (1959); Pleasants v. Heard, 15 Ark. 403 (1855); Ark. Stat. Ann. § 43-2204 (Repl. 1964).
Affirmed.
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Humpheeys, J.
This is an appeal by H. Gr. Wade from a decree of the chancery court of Ouachita county in which judgment was rendered in favor of B. J. Byars for $295.21 against him, Gr. S. Clemmons and Monroe Clemmons for the value of four bales of cotton and 85 bushels of corn Avhich they sold and appropriated to their own use while under attachment in a proceeding in the court of D. 0. Atterberry, justice of the peace in Calhoun county, to enforce a landlord’s lien of B. J. Byars for rent and advances madé by him to his tenants, Ó. S. Clemmons and Monroe Clemmons, on land which they had rented from him in Calhoun county for the year 1935.
The sheriff of Calhoun county and his bondsmen were made parties defendant and judgment was prayed against them on account of the sheriff’s negligence in permitting the tenants to retain possession of the property and convert it with the aid of H. G. Wade to their own use after the writ of attachment was levied on said cotton and corn.
On motion, the service was quashed as to the sheriff and his bondsmen and the suit was not prosecuted as to them any further.
G. S. Clemmons and Monroe Clemmons filed a motion to quash the service upon them which was overruled over their objection and exception, but they have not appealed from the decree rendered against them, hence, it is unnecessary to pass upon the action of the trial court in overruling- the motion or in rendering- judgment against them.
H. G. Wade filed a demurrer to the complaint of Byars which was overruled over his objection and exception. The case was then transferred to the chancery court, to which transfer H. G. Wade objected and excepted.
After the case was transferred to the chancery court H. G. Wade made a motion to remand it to the circuit court, which motion was overruled over his objection and exception.
H. G. Wade then renewed his demurrer to the complaint, which was overruled over his objection and exception and then filed a separate answer denying any liability on. account of converting the property to his own use while same was in costodia legis, specifically pleading that he did not wrongfully assist the Clemmonses in the conversion of the property, but that he received and sold one bale thereof under an order of Henry Means, conciliation commissioner in Ouachita county in the United States District Court for the Western Division of Arkansas. He also pleaded the six months’ statute of limitations contained in the landlord’s lien act as a bar to the prosecution of this action. Pope’s Dig., § 8845.
G. S. Clemmons and Monroe Clemmons filed a separate answer, the contents of which is unnecessary to set out as they have not appealed from the judgment rendered by the court against them.
The cause then proceeded to a hearing which resulted in a joint and several judgment being rendered against the Clemmonses and H. G-. Wade for the total amount sued for, from which H. Gr. Wade has appealed.
We have read the evidence carefully and according to our interpretation thereof it is, in substance, as follows:
The land upon which the crop was raised by the Clemmonses as tenants of B. J. Byars in 1935 had been conveyed by G-. S. Clemmons and his wife to F. F. Neeley in satisfaction of a mortgage thereon and,, in 1933, F. F. Neeley conveyed same to B. J. Byars, who rented it to the Clemmonses in 1935 for a rental of one-third of the corn and one-fourth of the cotton and advanced to them, as landlord, supplies to make the crop. They raised 85 bushels of corn and four bales of cotton and were indebted to Byars when the judgment was rendered- in the instant suit in the sum of $295.21 on account of rent due him and supplies furnished by him. The Clem-monses having failed to pay -him the rent or the amount due for supplies, he-proceeded within six months, or in the fall*of 1935, to enforce his landlord’s lien for the rents and supplies, and the property was levied upon by the sheriff who left it in the care of the Clemmonses.
Gr. S. Clemmons, with the aid of H. G-. Wade, then filed a petition in bankruptcy before Henry Means under the Frazier-Lemke Act seeking to have the deed to Byars declared a mortgage and invoking the aid of the conciliation commissioner in adjusting- same so that he might liquidate it in the course of time. A schedule of his property was filed with the bankruptcy petition, including the property on which Byars held a landlord’s lien and which he was attempting to enforce before a justice of the peace in Calhoun county. The conciliation commissioner seems to have made an order authorizing the Clemmonses to sell the cotton and corn which was under attachment, and this order was made at a time when Henry Means was not in condition to hold court. He set this order aside and released the cotton and corn, but immediately Gr. S. Clemmons filed another schedule of property before the conciliation commissioner and, without notice to Byars, he issued another order authorizing the Clemmonses to sell the property. This order was afterwards set aside by the federal judge on the ground that the proceeding before the conciliation commissioner was not a good faith proceeding and Avas not filed in order to get aid in tire settlement of the mortgage, bnt was filed for the purpose of destroying the landlord’s lien upon the property.
In a suit in the chancery court that followed, the deed from Neeley to Byars was declared an absolute deed and not a mortgage and that Byars was the owner in fee of the land after he received his deed in 1933. The record also reflects that as soon as the Clemmonses got an order from the conciliation commissioner to sell the cotton they telephoned to H. Gr. Wade, who had been assisting them, perhaps in the first petition before the conciliation commissioner, and certainly in the second petition filed before the conciliation commissioner, that such an order had been issued and Wade directed them to bring the cotton in, and with their consent took one bale of cotton for his services and assisted the Clemmonses through the service of the stenographer of a Mr. Bowers who Avas acting for Wade to sell the other three bales and Avhen the order was issued by the conciliation» commissioner allowing the Clemmonses and their attorney to dispose of the cotton the Clemmonses proceeded to use the corn. Byars prosecuted his attachment suit to enforce his landlord’s lien, but it was an empty victory because while the suit was pending and the property Avas in custodia legis it had been appropriated by the Clem-monses and Wade and his landlord’s lien was destroyed in that way. They sold the property and used the proceeds. The purpose of the Frazier-Lemke bankruptcy act Avas to aid and protect home OAvners against the loss of their homes and its purpose was not to protect tenants in their effort to cheat their landlords in the collection of their rent and supply bills. In fact, the act does not give the conciliation commissioner any authority to adjudicate or determine the existence or non-existence of landlord’s liens and the legal rights of parties connected Avith the litigation. Its only purpose was to grant powei: to the federal courts to postpone the foreclosure of mortgages in order to give debtors reasonable time to protect themselves against the loss of their home. The order issued by the conciliation commissioner alloAving the Clemmonses and Wade to sell the cotton Avas beyond the jurisdiction of tlie conciliation commissioner and was void. He had no right to issue such an order and the petition itself was afterwards dismissed by the federal judge. The petition was just a subterfuge, as we read the record, to destroy Byars’ landlord’s lien and the enforcement thereof by attachment proceedings.
In order to escape liability, Wade testified that he had nothing to do with the first petition and that he participated in the second petition to the extent of representing the Clemmonses as an attorney and he also testified that he knew nothing of the pendency of Byars’ suit by attachment to enforce his landlord’s lien, but the evidence as a whole convinces us that he assisted the Clem-monses in selling three bales of cotton and in appropriating one bale to his own use, and under the void proceedings he assisted them in making it possible for them to use the corn.
It would extend this opinion to great length to set out the whole testimony, so on this trial ele novo we have contented ourselves, after a very careful reading thereof, with setting out our interpretation thereof.
Appellant contends that the trial court erred in not remanding the cause to the circuit court, arguing that the circuit court, and not the chancery court, had jurisdiction of the cause of action. This court said in the case of Reavis v. Barnes, 36 Ark. 575, that (quoting-syllabus) : “A landlord cannot maintain an action for money had and received to his use, against one who has purchased and sold his tenant’s crop with knowledge that his rent was due and unpaid. His remedy, if any, •is by specific attachment while the crop is in the purchaser’s hands, or by bill in equity after the-sale, to have the proceeds appropriated to payment of his rents.”
This doctrine was approved in the case of Manilla Supply Co. v. Tiger Bros., 126 Ark. 105, 189 S. W. 675. The circuit court did not err in transferring the cause to equity nor did the chancery court err in refusing to remand the cause to the circuit court.
Appellant contends that his demurrer to the complaint shonlcl have been sustained because the allegations thereof -were insufficient to state a cause of action. We think the court correctly overruled the demurrer because the complaint states that during the pendency of the landlord’s attachment suit to enforce his landlord’s lien for rent and supplies the tenants by and with the aid of H. Gr. Wade took the property out of the custody of the court and unlawfully converted same to their own use. Such a cause of action is cognizable in a court of equity according to the cases cited above.
Appellant contends that an action of this character is barred under the landlord’s statute unless the landlord has proceeded within six months to enforce his lien. The landlord did proceed within six months to enforce his lien and was prevented from getting' the property under his attachment because while his suit was pending appellant and his tenants unlawfully took charge of the property or took it out of the custody of the court and converted same to their own use. Under those circumstances we ruled in the case of Bank of Gillett v. Botts, 157 Ark. 478, 248 S. W. 573, that the six months’ statute of limitations was inapplicable and did not apply where a mortgagee wrongfully took the property and converted same to his own.use. This case was alluded to and cited in the case of Bottrell v. Farmer’s Bank & Trust Co., 172 Ark. 1165, 291 S. W. 832, but this court in the Bott-rell Case differentiated it from the case of Bank of Gillett v. Botts in the following language: “Appellant calls attention to the case of the Bank of Gillett v. Botts, 157 Ark. 479, 248 S. W. 573, but in that case it will be observed that the suit was brought by the landlord against the tenant and some laborers who were claiming laborer’s liens on the rice crops. The purpose of this suit which was brought within six months, was to establish a lien for rent and supplies. After the suit was begun to enforce the lien, a receiver was appointed by the chancery court. The bank in that case took charge of the property and sold it, after the suit was begun to enforce the lien, and the court simply held that in that case the six months ’ statute had no application. It had no application because the suit to enforce the landlord’s lien for rent and supplies was properly begun within six months, and the bank, after the expiration of six months, took possession of the property and sold it while the suit was pending. ’ ’
The instant case is ruled by the case of Bank of Gillett v. Botts, and under the fact's in this case the six months’ statute of limitations is not applicable. In the Bottrell Case, supra, relied upon by appellant, no action had been brought during the six months’ period to enforce the landlord’s lien, whereas, in the instant case, such a suit had been brought, and the landlord’s lien was in effect destroyed by the action of appellants and the Clemmonses.
No error appearing/the judgment is affirmed. | [
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(xeokge Bose Smith, Justice.
The Highway Commission brought this condemnation suit to acquire 1.78 acres as a right of way for Interstate 40 across the appellees’ 320-acre farm. The jury fixed the landowners’ compensation at $5,500.00. The Commission, in seeking a new trial, insists that there was no substantial evidence to support the amount of the verdict.
We find it necessary to discuss only the testimony of the witness Lloyd Pearce, a real estate expert, who testified for the landowners. On direct examination Pearce valued the 320 acres at $109,275 immediately before the taking and at $103,725 immediately after the taking — a difference of $5,550, which slightly exceeds the amount of the jury’s award. As a qualified, expert who had familiarized himself with the property, Pearce was properly permitted to state his opinion without first enumerating the facts upon which it was based. Arkansas State Highway Commn. v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963). Counsel for the Highway Commission might then have shown by cross-examina lion tlmt Pearce had no substantial basis for his opinion. In fact, however, counsel did not pursue that course, their cross-examination being confined principally to a few questions about comparable sales in the vicinity.
After the construction of the highway 25 acres in the southwest corner of the appellees’ land will be on the unprotected side of a levee. The principal landowner, Lyman Dixon, testified that those acres will have no value in the future, because the levee will completely cut off his access to that part of the farm. In this court the Commission insists that the 25 acre-tract cannot properly be assigned no value whatever. On that premise it is argued that Pearce’s valuation after the taking cannot be regarded as substantial evidence, because, it is said, he too assigned no “after” value to the unprotected 25 acres.
That argument misconstrues Pearce’s testimony. Before the taking the 25 acres outside the levee were accessible, by means of a ramp. Of the 25 acres, 10.3 acres were in cultivation and 14.7 acres were in woods. Pearce, in arriving at his “before” value, used the following figures, later rounding off the total to $109,-275.00:
295 acres at $350 an acre $ 103,250.00
10.3 acres at $300 an acre 3.090.00
14.7 acres at $200 an acre 2.940.00
Total “before” value $ 109,280.00
If Pearce had actually assigned no value at all to the 25 unprotected acres after the taking, as the Commission suggests, then according to Pearce the landowners’ total damage would have been as follows:
1.78 acres taken, at $350 an acre $ 623.00
10.3 acres isolated, at $300 an acre 3,090.00
14.7 acres isolated, at $200 an acre 2,940.00
Landowners’ total damage $ 6,653.00
In fact, as we have already said, Pearce fixed the landowners’ total damage at only $5,550.00. lienee even upon .the Commission’s theory he assigned a value of $1,103.00 ($6,653.00 minus $5,550.00) to the unprotected 25-acre tract after the taking. We have no basis fox-saying that such an “after” valuation of the 25 acres is wholly without foundation. To the contrary, the Commission’s own expert witness, Zack Mashburn, in arriving at his “before” value of the unprotected tract, said that he threw in the 15 wooded acres “as nothing, because I don’t think it would be worth anything on the market.” Upon the record as a whole we find Pearce’s testimony to constitute substantial evidence adequate in itself to sustain the amount of the verdict.
Affirmed.
Jones, J., concurs. | [
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McHaNey, J.
Appellant was indicted, tried and convicted of murder in the first degree for the shooting and killing of I. C; Emerick. His punishment was fixed at life imprisonment in the state penitentiary.
For a reversal of the judgment against him, appellant contends that the court erred -ill excusing for cause Mr. J. R. Grogan, a member, of the regular panel of jurors. The following occurred on the voir dire examination of the juror: “By the court: Q. Mr. Grogan, you have been asked by the prosecuting attorney if you had formed an opinion as to how this killing occurred, in answer to the prosecuting attorney’s question you said that you had formed an opinion? A. I have. Q. Then I asked you if it was from what was said by witnesses, and you said it was not, then the prosecuting attorney asked you if you had an opinion on your mind now, and you said you had, then he asked you if it would take evidence to remove that opinion, and you said that it would, then counsel for the defense asked you if you could lay aside that opinion and try the case solely on the evidence you heard from the witness stand and the instructions of the court, and you said that you could. Let me ask you this question, you formed an opinion from what you heard about the case? A. Yes, sir. Q. You still have that opinion now? A. Yes, sir. Q. Can you lay aside that opinion from right now as though you never had formed it and go intb the jury box without an opinion until you heard the witnesses? A. I don’t know about laying the opinion aside. The court: I am going to excuse him.”
Examination: “By Mr. Jackson: Q. Mr. Grogan, you say the opinion you now have is formed from having talked to people who are not witnesses in this case? A. As far as I know they are not. Q. And from what they told you you formed an opinion? A. Yes, sir. Q. If selected as a juror to try this case, notwithstanding the opinion you now have, having been formed from rumor and hearsay, I will ask you if you can discard it, lay it aside, and try the case according to the law and the evidence as you hear it here in the courtroom and not permit the opinion you now have to influence or control you in any manner or any degree in arriving at a verdict? A. Yes, sir. Q. And you will do that? A. Yes, sir, I don’t know whether these were facts. Mr. Jackson: The court has excused you, and I now except to the ruling of the court.”
Examination: “By,the court: Q. In answer to my question a moment ago when I asked you if you could lay your opinion aside you stated that you would be governed by the evidence, but you didn’t think you would be able to lay the opinion aside as of now, in other words, you can’t lay tlie opinion aside first, but you must hear evidence before you lay your opinion aside? A. I think that is right. The Court: Then I excuse you.”
Examination: “By Mr. Jackson: Q. Then after you hear the evidence and the instructions of the court, can you return a verdict in accordance therewith? A. Yes, sir. The court: I am excusing him, because he stated that he cannot as of the present moment, lay his opinion aside, but that he would lay his opinion aside after he heard the evidence. Mr. Jackson: I want the record to show that the opinion he now has is formed from rumor and hearsay, and I except to the ruling of the court in excusing the juror. ’ ’-
No error was committed in excusing this juror. It is a rather unusual assignment, in that the situation is usually the reverse, that is, that the court has usually refused a peremptory challenge of a juror for cause, and the defendant excepts and assigns error because thereof. Here, the court excused the juror, because he did not appear to be free from bias or prejudice. So far as this record discloses, a fair and impartial jury was selected to try appellant. He concedes that he was not entitled to the service of any particular juror, and that the trial court does and must have a wide discretion in such matters. Such has been the rule in this court throughout the years. It is true, as appellant contends, and as we have many times decided, “that a juror is not disqualified simply, because he has an opinion based on rumor and hearsay where he statés he can disregard the opinion and try the case as though he had never heard it discussed.” Had the court held juror, Grogan, qualified and competent over appellant’s objections, and had he been convicted and appealed, assigning error because thereof, it is quite probable we would still overrule the assignment. In Sullivan v. State, 163 Ark. 11, 258 S. W. 643, with reference to the selection of trial .jurors from the regular panel, this court said: . “These were'matters over which the circuit judge must necessarily have a wide discretion. It is thoroughly settled that a defendant has no right to the services of any particular juror. He may only demand that he he tried before a fair and impartial jury, and it is difficult to imagine a case where the judge had excused a juror from further service on the regular panel which would afford any defendant just cause of complaint. ’ ’
Here, appellant complains, because the court excused one of the regular panel for cause, on its own motion. Even though it be conceded the juror was competent, and that the court should not have excused him, still appellant is not prejudiced, because he was tried by a fair and impartial jury. We think, however, the court correctly excused the juror. So, in any event, appellant has no just complaint.
Only one other question is presented for our consideration, and that is, whether appellant “acted in self-defense at the time the fatal shots were fired that resulted in the death of I. O. Emerick. ” This question was one for the .jury and was submitted on conflicting evidence and under instructions not questioned. The jury has settled this conflict against appellant and is conclusive here. .We think it would serve no useful purpose to set out the evidence.
The judgment must be affirmed. It is so ordered. | [
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Conley Byrd, Justice.
The trial court held that a 1905 deed from Samuel J. and Molly Walker to Samuel J. Walker Jr. created a fee tail estate— i.e., a life estate in Samuel J. Walker Jr., with a contingent remainder to the heirs of his body. Based upon such finding, it awarded possession of the lands here involved to appellee, Edyth L. Walker; awarded betterments to appellants Carrie Tucker, Iris ITeasley and Jim Fuhr in the amount of $2500, and betterments to A. W. Hill, W. A. Hill, Mrs. Gus Lewis, Charles Walter Hill, Mary Jo Hill Christensen, Barbara Hill Carter, and Linda Sue Hill McDuff ey in the amount of $2200; and denied damages for breach of covenant against appellee, Etna Walker, the wife of Samuel J. Walker Jr., Helen Walker Blaney and Edyth L. Walker as a guardian of Merle E. Walker. The appellants, Carrie Tucker, et al, and A. W. Hill, et al, appeal. For reversal they relied upon the following points:
I. If appellants be dispossessed in this case then damages should be allowed for breach of warranty.
II. The deed from Samuel J. Walker, Sr., et us, to Samuel J. Walker, Jr., considered with the “attendant” circumstances, should be interpreted as creating a. fee simple and not a fee tail; or, alternatively, the deed should be reformed to create a fee simple which was obviously intended by all parties.
III. Applying the rule of the destructibility of contingent remainders, Walker, Jr., had a fee simple.
Appellee Ed$th L. Walker cross appeals contending that the improvements placed on both tracts of land were not in good faith and that the court erred in its valuation of improvements.
The record shows the deed dated June 5, 1905, recites, “that we, Samuel J. Walker and Molly I. Walker, his wife, for and in consideration of $1,000 into our hands this date paid, do hereby grant, bargain, sell and convey unto the said Samuel J., Walker Jr. and unto his bodily heirs and assigns forever, the following lands lying in the County of Sharp and State of Arkansas, to-wit:...”
The habendum clause reads, “To have and to hold the same unto the said Samuel J. Walker Jr. and unto his heirs and assigns forever, with all appurtenances thereunto belonging”. This deed was prepared by James Davie, a newly appointed Justice of the Peace. The record shows he used a form and filled in the blanks by hand. Mr. Davie was a farmer and carpenter in the area.
In 1912, Walker Jr. and Etna Walker, his wife, conveyed the lands here involved to S. B. Turner by a general warranty deed. Walker thereafter moved to Oklahoma where he died in 1961. At the time of his death he owned, as an estate by the entirety with his wife, real estate valued at $4500. He was survived by Etna and two children, Helen Walker Blaney and Merle E. Walker. Before this suit was filed Helen sold her interest to Merle. Merle was incompetent and his wife Edytli was appointed his guardian.
Under the third point, appellants suggest that we should limit or curtail fee tail estates by applying the rule of destructibility of contingent remainders. We find no merit in this argument as applied to the facts here. By Ark. Stat. Ann. § 50-405 (1947) and §§ 50-405.1 — 50-405.3 (Supp. 1967), the Legislature has undertaken not only to regulate the fee tail estate but also to provide a method for its dissolution. We see no reason why the court should go beyond established public policy.
Under point II, appellants argue that the 1905 deed to Samuel J. Walker Jr. created a fee simple title in Walker. In the case of Weatherly v. Purcell, 217 Ark. 908, 234 S.W. 2d 32 (1950), we had before us a conveyance to “John E. Purcell and his bodily heirs”. The habendum clause there read, “To have and to hold the aforegranted premises to the said John E. Purcell and his heirs aforesaid in fee simple forever.” We held that the deed created a fee tail estate. We think this decision is controlling of the issue involved here.
Under the second point appellants also argue that if the deed created a fee tail then it should be reformed to create a fee simple which was obviously intended by all the parties. The only proof offered with reference to reformation of the deed was that the Justice of the Peace who drew the deed was a farmer and carpenter by trade; not admitted to practice law; and newly appointed as a Justice of the Peace. The only other evidence was that neither Samuel J. Walker Jr. nor his father were lawyers. We find this ¡evidence insufficient to reform a deed executed by the parties. Furthermore the testimony of Cleo Chaplin, a nephew of Samuel J. Walker Jr., shows that his grandfather gave properties to all three of his children including Samuel Walker Jr., so that theA" couldn’t sell their dowry.
Appellants’ cross complaint against Etna Walker, the wife of Samuel J. Walker., is upon the theory that she covenanted with S. P. Turner to warrant and defend the title against all claims whatsoever. Their action against Helen Walker Blaney and Edyth L. Walker as guardian of Merle E. Walker is on the theory that as heirs of Samuel J. Walker Jr. and Etna Walker they have received property of their parents which could be used to satisfy the damages caused by the breach of their ancestors’ covenant of warranty, see Jones v. Franklin, 30 Ark. 631 (1875).
The trial court was correct in holding that Helen and Merle Walker were not liable to the appellants for ■either one of two reasons. In the first place the record fails to show that either has received by inheritance any property either from Samuel J. Walker Jr. or their mother Etna 'Walker. The record only shows that Etna Walker died after the institution of these proceedings; that at the time of her death she owned property inventoried at a value of $1,500; and that she, by will, left the property to Helen. Of course until such time as the Oklahoma statute of non-claims has run, there is no way to determine whether Helen will receive any property from her mother. There is no showing that Merle "Walker received any property from either his father or mother.
Etna Walker, the wife of Samuel Walker Jr., argues tliat she is not liable on the warranty because she only purported to waive her dowry in the deed and that under the existing law of 1905 such a contract by a married woman was void. The latter contention is made upon the authority of Benton County v. Rutherford, 33 Ark. 640 (1878). As we read our cases Sparks v. Moore, 66 Ark. 437, 56 S.W. 1064 (1908) and Longino v. Smith, 158 Ark. 162, 249 S.W. 557 (1923), married women became liable upon their contracts, including covenants of warranty, by the passage of Act 47 of 1895. This act is now codified as Ark. Stat. Ann. § 55-405 (1947). Furthermore our cases hold that a married woman joined, as a grantor with her husband in a deed is liable on the covenant of warranty contained therein, Spann v. Langston-Williams Lumber Co. 184 Ark. 99, 40 S.W. 2d 791 (1931).
Recovery in such cases is limited to the purchase price, interest from the date of eviction, attorney’s fees and court costs, Wade v. Texarkana Building & Loan Association, 150 Ark. 99, 233 S.W. 937 (1921); Fox v. Pinson, 182 Ark. 936, 34 S.W. 2d 459 (1930). Also where the land to which the covenant runs has been divided among other grantees, the damages suffered by each subsequent grantee is to be prorated according to value, Lane v. Stitt, 143 Ark. 27, 219 S.W. 340 (1920). Therefore we hold that the trial court erred in not awarding damages against Etna Walker’s estate since there was ample testimony showing the value of each of the two parcels carved out of the original covenanted land.
Appellees’ contention on a cross appeal that the betterments to the lands were not made in good faith is not sustained by the record. The only evidence to indicate any lack of good faith is that the original deed from Samuel Walker and his wife Molly Walker to Samuel Walker Jr. was at all times in the possession of Carrie Tucker. There is ample other evidence to the effect that Carrie Tucker had no actual knowledge of the provision in the deed until'sometime in the 1950’s.
Neither do we find any merit in the contentions that the court erred in its valuation of the improvements. Eugene Street valued the improvements on the Tucker farm at $2500 to $3000, on the Hill farm $3000 to $3500. Witness Boyd Carpenter valued the Tucker farm improvements at $3000 and the Hill farm improvements at $3000. Wre hold this testimony amply sufficient to sustain the trial court’s assessment of betterments, after deductions for rents, in the amount of $2500 to the Tucker farm and $2200 to the Hill farm.
Here the damages suffered by the appellants greatly exceed the $8,000 purchase - price stated in the warranty deed from Walker Jr. and his wife Etna. We remand the ease as against the estate of Etna Walker, only, to the trial court for purpose of prorating the $8,-000 limit on Etna’s liability between appellants Carrie Tucker, et al, and A. W. Hill, et al, together with court costs, reasonable attorney’s fee and interest from date of eviction.
Affirmed in part and reversed in part.
Justice Fogleman concurs. | [
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Bakes, J.
This case on appeal is very similar to one in which we rendered an opinion on November 14, 1938, Fidelity & Deposit Co. of Maryland v. Meyer, Guardian, ante p. 42, 121 S. W. 2d 873.
The cases are not exactly identical. ' For that reason it is necessary to give some consideration to matters appearing in this appeal, not presented in the first case. We see no reason in this case for a restatement of the facts further than to set forth matters anew that distinguish this appeal from the other, and only such other facts necessary for the continuity of a statement of propositions herein discussed.
There were five Louis B. Seigel notes, each being for the sum of $1,000. One of these notes was involved in the case decided November 14th. It was separated from (he other four and presented in that ease because it had been taken over and held by the guardian and curator of the minors who were suing upon a guardian’s bond, given by the present guardian’s predecessor.
The four notes involved here were part of the same series and they were taken over and held by the administrator with the will annexed of the estate of William F. Meyer, deceased. In each case the suit was instituted in the name of the minor children of William F. Meyer by their guardian, Ora Lee Meyer, who was also their ■mother. The bond sued on in this case is one executed by the American Exchange Trust Company as the administrator in succession to Exchange National 'Bank.
The allegations or facts upon which liability are founded is substantially to the effect that the Exchange National Bank was administrator, with the will annexed, of the estate of William F. Meyer, deceased, and that that banking institution, while acting as such administrator, bought from itself, as the banking institution, the four $1,000 notes now in controversy; that later the Exchange National Bank was 'succeeded as administrator by the American Exchange Trust Company, and that the Exchange National Bank made a final settlement which was duly approved by the probate court and delivered over to the American Exchange Trust Company the four notes and took a receipt therefor. Later the American Exchange Trust Company became insolvent-and Mrs. Ora Lee Meyer was then appointed administratrix in succession with the will annexed, and from settlement made by the American Exchange Trust Company, accepted the four notes, receipting for the same and without any objection upon her part to the settlement made, the American Exchange Trust Company’s settlement was duly approved and it was discharged. All of this occurred six or seven years ago, but the statute of limitations, as affecting the administrator’s bond is not raised and perhaps could not ¡be if there is any liability. That statute is eight years. Pope’s Digest, § 8936.
Mrs. Meyer, as administratrix, after accepting* these notes, sued on them, foreclosed the mortgage, and procured sale of the property mortgaged to secure the notes, bought in the property herself for her wards and has continued to hold the same since 1931. Now since she, as guardian, or the children, in their own right, have acquired title, a difficulty in the disposition of such property, has arisen. It did not arise out of any inherent defect in the notes or mortgage given to secure them. Whatever question there is arises out of the will of William F. Meyer to the effect that the corpus of his estate should be retained for the benefit of his children until they have attained the age of twenty-six years. It is urged now that this land is of comparatively little or no value; that taxes have accumulated against it, and that it is not income producing, but is wild and unimproved. The relief prayed for is that the bonding* company, the appellee herein, should be compelled to accept the land under a decree awarding the same to it and that it should he required to pay the $4,000 represented by notes, with interest from the date of the wrongful purchase of the notes with the money belonging to the estate of Meyer by the Exchange National 'Bank, the predecessor of the American Exchange Trust Company.
The chancery court held against this contention, denied the right to recover and it is from this decree that this appeal has been taken. There is no substantial dispute concerning the facts involved in this controversy. The appellants state their contention in the following language:
“We predicate the liability of the American Exchange Trust Company and its surety, the Fidelity & Deposit Company of Maryland, upon the following: (1) the Exchange National Bank, as administrator with the will annexed of the estate of William F. Meyer, deceased, could not legally purchase from itself, and such attempted purchase was void; (2) the investment of the said Exchange National Bank of funds of the estate in notes held by itself without authority of the probate court was void; (3) the $4,000 was deemed to still be in the possession of the Exchange National Bank when it merged with and was absorbed by the American Exchange Trust Company; (4) the investment of the funds of-an estate without authority does not vest title to such property in the purchaser and consequently the funds were transferred to the American Exchange Trust Company by the merger; (5) the $4,000 represented unadministered funds and the title to same passed to the American Exchange Trust Company by the merger; (6) the administrator is required by law to pursue its successor and failed to do so at its peril, consequently, the - American Exchange Trust Company is to be charged with the $4,000; (7) the American Exchange Trust Company, by its ag’reement, assumed all of the deposits and trust funds of the Exchange National Bank, and, consequently, assumed and took over the $4,000 of the estate on deposit in the Exchange National Bank; and (8) the American Exchange Trust Company failed and refused to turn over to Ora Lee Meyer, as administratrix in succession, the $4,000, with interest.
An analysis of this contention is to the effect that the investment made by the Exchange National Bank in the purchase of these notes was illegal and void and that the American Exchange Trust Company should not have accepted the notes, but should have declined to do so; that it should have sued the Exchange National Bank and its bondsmen for the $4,000 and interest; that upon its failure to do so, the bond executed by it to account for property coming into its hands became liablé to the same extent and with like effect as if it had received the $4,000 in cash, with interest instead of the notes purchased by its predecessor.
It is argued now that had it sued its predecessor it would have been able to collect the said debt. The American Exchange Trust Company, however, did not sue the Exchange National Bank and, so far as this record discloses, Mrs. Ora Lee Meyer, as administratrix in succession and as guardian, did not sue the said bank. This is merely mentioned, however, as an argument ad homimmi, as it perhaps indicates what was'in the mind of all parties at that time, a belief that the notes were valuable securities, worth probably more than their face, because they were substantial' investments considered amply secured..
It is argued also at this time that this suit is one by the minors and it is stated, presumably from the record, that Mrs. Ora Lee Meyer had disavowed and disclaimed any interest under the will, but had elected to claim under the law and had received from-the estate of her husband her part thereof and for that reason the children were proper parties to maintain this suit.
The appellee in response to the arguments urged to the effect that the sureties on the bond for American Exchange Trust Company became liable for the default of the predecessor, Exchange National Bank as administrator with the -will annexed, is that, since the act of the Exchange National Bank was illegal in the investment of money belonging to the estate in the notes without first having procured an order from the probate court authorizing such action, that the money so invested must be treated as a continuing fund, even after such investment, in the hands and possession of the Exchange National Bank, and in like manner must be treated as in the possession of the American Exchange Trust Company when it became administrator in succession, is to the effect that the bond executed by the American Exchange Trust Company does not so provide by its express terms nor by implication. It is true that there are numerous decisions to the effect that the administrator in succession may make his predecessor account for assets belonging to the estate and nobody doubts the soundness of the principle urged, but that is not the contention made here by the appellants. Their contention is to the effect that notwithstanding the fact that the Exchange National Bank had made settlement, its settlement had been duly approved by the probate court; that every administrator in succession thereafter became liable when it accepted property and assets from the predecessor and was charged with liability for any wrongful act of any kind or default of such predecessor.
In answer' to that contention let it be said that the. bond of the administrator is a statutory bond. If insufficient by reason of any inadvertent omission from its express terms, such deficiency must be deemed as supplied by the law. If there were additions to the bond not authorized by law, such additions would be declared as surplusage. Jones v. Hadfield, 192 Ark. 224, 96 S. W. 2d 959, 109 A. L. R. 488.
Our holding is that an administrator in succession is not charged with the illegal acts of his predecessor to the extent that he, if he accepts the trust when appointed and when he makes bond, must take such trust coupled with the absolute or mandatory duty to determine the legality or illegality of his predecessor’s' conduct and act accordingly. The administrator with the will annexed and the surety here involved received, according to order of the probate court, property tendered without loss, without any act of bad faith and in accordance with the contractual obligations of suretyship of the appellee, bonding company. 'See §§ 24, 32 and 45 of Pope’s Dig.; Sebastian v. Bryan, 21 Ark. 447; State v. Stroop, 22 Ark. 328; Fidelity & Deposit Co. v. Fairchild, 164 Ark. 498, 262 S. W. 322.
While the foregoing is a conclusion of the rights of all the parties, it is not amiss to answer the earnest arguments and suggestions of counsel for appellants. They say, first, that this proceeding must he regarded as if the money were actually in the possession of American Exchange Trust Company when it made this bond for the reason that he had a right to recover it in proper suit; that in law the money was in possession of the administrator.
If that fiction be indulged, then the fiction must go further and hold that, since it had the money and there was no default and it delivered over the same property that it received, then the present administrator with the will annexed, carrying the same fiction to the ultimate' conclusion, now possesses the assets sued for. A mere statement of the proposition is its answer. There certainly cannot be liability without default. No default has been established against the American Exchange Trust Company or its surety. •
It is argued also that, since this suit is one by the-minors themselves, and not by their mother who accepted the four notes sued on, foreclosed the lien and bought in the property, such minors are not estopped and, although Mrs. Meyer, administratrix in succession, might be deemed estopped, these children will not be because they have not so acted. This contention is contrary to the holding in the case of the same style, decided by us on November 14th. In addition, it is contrary to an essential part of the record here presented. These children claim under the will of their father and the will is a part of this record. We have also recited the fact that the will provides that they shall not have possession of this property until they attain the age of twenty-six years and it is recited in some of the briefs to the effect that that period is approximately ten years off.
The correctness of the declaration that the corpus of the estate is to be held by the administratrix until the children shall attain the age of twenty-six years is not disputed. They cannot recover a judgment for property, the possession of which is denied them both by the will and by the law. If they could recover under any theory, their recovery would have to be for the benefit of the administratrix with the will annexed, else a recovery would defeat the purposes of the will. That is not allowable. Although it seems such must be the ultimate conclusion of appellant’s contentions, they refrain from a discussion of this result.
All other questions presented have been duly argued, have been found to involve the same principles decided in the case of Fidelity & Deposit Co. v. Meyer, Guardian, ante p. 42, 121 S. W. 2d 873.
We cannot think there is any merit in repetition or duplication. Since the opinion delivered November 14th is conclusive upon us and the parties involved in this litigation, we hold that the decree in this case is correct.
It is affirmed. | [
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John A. Fogleman, Justice.
Appellants instituted an ejectment action in which they claimed that appellees had constructed a road across appellants’ lands (consisting of lots 20, 22 and 40) for a connection with appellees’ adjacent lands. Included in the complaint was a prayer for damages in the sum of $5,000. It was not seriously disputed ihat appellees had caused such a road to he constructed, the old road having been inundated by the waters of Beaver Lake. The principal items in dispute were the location of the particular lots in relation to the road and the amount of damages. Luring the trial the court permitted the jury to view the premises. The court instructed them to stay together under the charge of the bailiff and to talk to no one about the case. One of the jurors left the group and proceeded to the site on his own in advance of the others.
Appellants introduced the testimony of Harold J. Pranter, who was a consulting engineer and land survey- or, together with a survey of the lands in question prepared by him. The survey indicated a road superimposed over portions of lots 20, 21, 22, 30 and 40. On cross-examination the witness indicated that the lot lines were not certain from an engineering standpoint because the plats available did not contain bearings or distances. He testified that his survey was predicated on calculations based on the Corps of Engineers’ estimate of where the original town of Monte Ne was placed on their grid map. Mr. Pranter calculated that the portion of the road shown on his survey constituted roughly 12,000 square feet and was 300 feet long.
Marvin Head, who was in the earth moving business, testified on behalf of appellants that removal of the entire road would involve moving 2,000 yards of material at a cost of $1.00 to $1.10 per yard.
Arthur Dorcy, Jr., one of the appellants, testified on cross-examination that approximately one-quarter of the road is in lot 21 which they did not claim.
Appellees’ witness Bob Crafton, civil engineer and land surveyor, testified that no lot on the W. T. Patterson plat could be located with any degree of accuracy and that basically everything in Monte Ne is a guess. lie stated that b}r the method of scaling and estimating and assuming some information he could possibly get within five hundred feet but that he could not get as close as a hundred feet to the actual lines.
At the close of the evidence the case was submitted to the jury which returned a verdict in favor of appellants for damages in the sum of $1,800 and a judgment ■ejecting appellees from the lands in question. There after, appellees made a motion which alleged that the undisputed testimony established that $2,200 was the maximum figure introduced into evidence for the cost of removing the entire road and that appellees had admitted on cross-examination that one-quarter of the road was on lot 21 which appellees did not claim; therefore the judgment should be reduced to $1,650 notwithstanding the verdict of the jury. The court granted this motion and a judgment was entered in the amount of $1,650 against appellants.
Subsequently, appellees made a motion for a new trial and as grounds therefor alleged, among others, that the verdict or decision was not sustained by sufficient evidence and was contrary to law, and that after entry of said judgment it became known to appellees that a member of the jury had, in violation of specific instructions of the court, independently proceeded to the situs of the property and arrived there approximately one hour prior to the other jurors. Accompanying the motion was an affidavit by the bailiff which reiterated the substance of the allegation in the motion. The court granted the motion for a new trial on the grounds that the verdict was excessive and because of the action of the juror in leaving the body of the jurors in violation of the court’s instruction. Appellants appeal from the granting of the new trial and from the granting of the motion to reduce the jury verdict from $1,800 to $1,650.
Appellants argue, that the trial court erred in granting appellees’ motion for a new trial for excessiveness of the verdict. Arkansas Statutes Annotated § 27-1901 (Rept. 1962) provides, in part, that a new trial may be granted when there, is “error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property.” Whenever a trial judge grants a motion for a new trial we will not reverse his ruling unless it appears that he abused his discretion. Bobbitt v. Bradford, 241 Ark. 697, 409 S.W. 2d 339; Meyer v. Bradley, 245 Ark. 574, 433 S.W. 2d 160.
In order to sustain an action in ejectment plaintiff must establish that he is legallty entitled to possession of the property. Ark. Stat. Ann. § 34-1401 (Repl. 1962). Plaintiff must succeed, if at all, on the strength of his own title and cannot depend on the weakness of the defendant’s title. Bunch v. Johnson, 138 Ark. 396, 211 S.W. 551; Knight v. Rogers, 202 Ark. 590, 151 S.W. 2d 669. The evidence in this case does not establish hr a clear preponderance where lots 20, 22, and 40 are in relation to the road. Appellants’ witness admitted Ins fuirvey, which purported to show those portions of the lots which had been taken by the road, had been prepared upon the assumption that the Corps of Engineers’ plat was correct, and he stated that he had no personal knowledge whether it was correct or not. He .further testified that if he were told to locate lot 1, block 54, or any lot in any part of Monte Ne, he could not find and stake out that lot with any reasonable degree of certainty. He admitted that his survey was based on the only available information. This witness’s testimony actually agreed with appellees’ witness, Bob Grafton, except that they differed as to the degree of error likely in trying to locate the lots in question. Because of this uncertainty, the trial judge obviously felt there was error in the amount of damages awarded. We cannot say that he abused his discretion in granting a new trial.
Inasmuch as the court’s action in granting a new trial on the basis of insufficient ¡evidence to support the verdict was not an abuse of discretion, we need not consider the question of whether the granting of a new trial because of the actions of the juror was an abuse of that discretion.
Appellants argue that it was error for the court to grant the motion for a new trial after it had already granted the motion to reduce the jury award. Appellants style the first motion as a motion for a judgment notwithstanding the verdict and argue that it is inconsistent to grant both. Actually, the first motion was in the nature of a request for a remittitur such as is provided for in Ark. Stat. Ann. § 27-1903 (Repl. 1962) and not a motion for judgment notwithstanding the verdict. See Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49. The two motions would not be inconsistent because, under the statute, the alternative to remittitur is a new trial. If there was error in granting the motion for reduction of the verdict it ivas harmless error in view of the fact that the trial judge did not abuse his descretion in granting a new trial.
Supplemental Opinion on Rehearing July 14, 1969
Even if this motion were considered as one for a judgment notwithstanding the verdict it would not have been inconsistent with a motion for a new trial. In Montgomery Ward & Company v. Duncan, 311 U.S. 243, 61 S. Ct. 189, 85 L. Ed. 147, it was said, “A motion for judgment notwithstanding the verdict did not, at common law, preclude a motion for new trial. And the latter motion might be, and often was presented after the former had been denied.”
The judgment is affirmed.
Byrd, J., concurs.
Arthur Dorey, Jr., et al, v. Harry McCoy and Monte Ne Shores, Incorporated
5-4952
442 S.W. 2d 202
Davis Duty for appellants.
Hardy Croxton for appellees.
John A. Fogbeman, Justice.
In their petition for rehearing, appellants call our attention to a statement in our original opinion that they appealed from the trial court’s action reducing the damages awarded by the jury from $1,800 to $1,650. This statement was erroneous, even though one of the points relied- upon by appellants here was the sufficiency of the evidence to support the jury award of $1,800. The opinion should have slated that appellants appealed from the granting of the new trial and argued, on appeal, that the evidence was sufficient to support the jury’s award of $1,800 in damages.
Appellants also allege that we have totally disregarded evidence adduced by appellants tending to show adverse possession of the lands on which the road in question was located in holding that there was such uncertainty as to the location of the lots upon which they claimed the road in question had been placed that we could not say that the trial judge abused his discretion by granting a new trial for error in the' assessment of the amount of recovery. There was testimony by one of the appellants that the laud occupied by his father, under whom appellants claim, included the road. On cross-examination this witness admitted that he never knew the exact boundary lines other than his father’s house and its immediate environment. On redirect examination, these questions were asked and answers given:
“Q. You have stated you didn’t know exactly where your boundaries were until the survey was run ?
A.- That’s right.
Q. Did you have a general idea of the land that you claimed?
A. I know what my father claimed, yes.
Q. Did the land that your father, and you subsequently, claimed the land that now has a road on it?
A. Yes. I couldn’t verify that till afterwards, though.
Q. Pardon?
A. 1 say I couldn’t verify it till after, but it was the part that wc thought was ours.
Q. The land you claimed is the part the road is on?
A. Yes.”
The same witness then admitted that approximately one-quarter of the road was on a lot not claimed by appellants. We agree with appellants’ statement in tlieir original brief that evidence as to the portion of the road located on lands other than those claimed by appellants was not direct or definitive and that it might have left the jury wandering in the realm of conjecture. We do not agree with appellant that the burden of producing direct and definitive evidence on this essential element of appellants’ measure of damages was upon appellees. Even though this evidence was not specifically mentioned in our original opinion, it. was considered. Wc are still unable to say that the evidence so clearly preponderated in appellants’ favor on the question of damages that the trial judge, abused his discretion by granting a uew trial. Under such circumstances, we sustain the action of a trial court granting a motion for new trial. Bobbitt v. Bradford, 241 Ark. 697, 409 S.W.2d 339.
Appellants also vigorously urge that the trial court acted under Ark. Stat. Ann. § 27-1903 (Repl. 1962) and ■was thereby barred from granting a new trial after having ordered a reduction of the damages. Although it was stated in the original opinion that appellants’ motion for reduction of the verdict was in the nature of a motion under that section, neither the appellants, the trial court nor this court categorized the motion as having been filed under that section. That section is not the basic authority for reduction of a jury verdict by a trial court. Such action is within the inherent powers of the trial court aside from and independent of that statute. Dierks Lumber & Coal Company v. Noles, 201 Ark. 1088, 148 S.W. 2d 650. Section 27-1903 only purports to limit that basic power in certain cases. This court has reversed the judgment of a trial court and ordered a new trial in a case wherein tiie appellee’s attorneys offered to file a remittitur in the amount by which the trial'judge found the verdict to be excessive. See Jamison v. Spivey, 197 Ark. 698, 125 S.W. 2d 453. AVhile it is true that this court found that that verdict was still excessive, there would be no reason why the trial court could not grant the same relief, if it felt that there was still error in the assessment of damages in actions upon contracts or for injury to or detention of property.
If it is applicable at all, ^ 27-1903 might have prevented the filing of a motion for new trial, if appellees had offered, or could be required, to file and enter of record a release of all errors that may have accrued at the trial upon appellants’ remitting the amount by which tin1 judgment was held to be excessive. There is no indication that appellees waived any errors in the trial nor is there any allowing that appellants remitted the excess. The requirement that a litigant surrender his right of appeal as a condition upon which he may accept the reduction of an excessive verdict by the trial court has been held to be beyond the power of the legislature as a violation of Article 7, Section 4 of our Constitution. St. Louis & N. A. Rd. Co. v. Mathis, 76 Ark. 184, 91 S.W. 763, 113 Am. St. R. 85. If we accepted appellants’ theory that the two motions were so inconsistent that the motion to reduce precluded a motion for new trial, we would be imposing the same penalty upon a litigant. There is no logical reason why this court could so deny the right of appeal under the constitutional provision if the General Assembly could not.
Not only did appellants fail to enter a remittitur in the amount found excessive by the trial court, but they argue here that the court erroneously treated the jury’s verdict of $1,800 as excessive. Their action is tantamount to a refusal to enter the remittitur, and would have justified the granting of a new trial, if § 27-1903 applies. Kroger Baking Company v. Melton, 193 Ark. 494, 102 S.W. 2d 859. Appellants cite no authority for their position that the filing or granting of a motion to reduce n verdict precludes the granting of a motion for a new trial.
Appellants also insist that the first motion was for judgment notwithstanding the verdict. Ordinarily ■that motion is for the purpose of obtaining a judgment reaching the opposite result from the jury’s verdict, e.g\, a judgment for defendant when the verdict was for the Plaintiff. It can only be granted when the judgment sought by the movant is the only result that could be reached on the basis of the pleadings or ■the undisputed evidence. Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 176; Spink v. Morton, 235 Ark. 919, 362 S.W. 2d 665. A motion for judgment notwithstanding the verdict- may only be .entered before the entry of Judgment. Oil Fields Corporation v. Cubage, 180 Ark. 1018, 24 S.W. 2d 328. A litigant should not be required to waive the right to seek a new trial, in order to ask for judgment notwithstanding the verdict, when the latter relief cannot be sought after judgment is entered. Failure to make a timely motion to reduce a verdict would constitute a waiver of .that relief.
While .there .are some decisions to the contrary, it is held in a number of- jurisdictions that a successful or ■unsuccessful motion for judgment notwithstanding the verdict does not constitute a waiver of or bar to the granting of a new trial. See Jolley v. Martin Bros. Box Co., 158 Ohio St. 416, 109 N.E. 2d 652 (1952), and cases cited therein. See also Sallden v. City of Little Falls, 102 Minn. 358, 113 N.W. 884, 13 L.R.A. (n.s.) 790, 120 Am. St. R. 635 (1907). The case cited in the original opinion, even though based upon the Federal Rules of Civil Procedure, supports this position. The Supreme Court of the United States there held that a trial court should pass on an alternative motion for new trial even though it granted judgment notwithstanding the verdict. Partial support for that holding was found in the common law rule quoted in the original opinion. Even if the motion here is properly one for judgment notwithstanding the verdict, it did not bar the granting of a new trial.
While it may well be that the trial court in instances such as this would not err in giving a moving party his election of a induction of a verdict or a new trial, we still cannot say that his failure to do so is an abuse of discretion.
This section may be applicable only to those cases wherein the damages are not susceptible of definite pecuniary measurement, as in cases involving pain and suffering, etc. | [
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IícHaNey, J.
Appellants, Dillard and Dunklin, are partners doing business under the firm name of Fort Smith Cotton Oil Company and will be hereinafter referred to as appellants. On January 25, 1936, pursuant to a contract of sale and purchase between appellants and appellee, Swift & Company, the former loaded, at its cotton seed oil mill in Fort Smith, a tank car with cotton seed oil, which, tank car was furnished for the purpose by the latter. After 'being loaded by appellants it was delivered to the Missouri Pacific Railroad Company to be switched to the connection with the appellee, St. Louis-San Francisco Railway Company, which latter company accepted delivery the same day and undertoook to and did transport same to Swift & Company in Chicago. It was shipped by appellants under standard form of bill of lading, which shows it was “Shippers Order,” with notice to Swift & Company. It was indorsed by appellants and attached to a draft on Swift & Company which draft was paid on presentation. When the car arrived it was found to be short a net amount of 6,700 pounds, due to a leakage in transit and demand was made on appellants and appellee railway company to make good the loss to it which was stipulated by all parties to be $620.40. Payment being refused, Swift & Company sued appellants and the railway company. Trial resulted in a verdict and judgment for Swift & Company as against appellants, but in favor of the railway company on the suit against it. From the judgment against them an appeal is prosecuted by appellants, as against Swift & Company only, and there is an appeal by Swift & Company from the judgment in favor of the railway company.
In addition to the facts above stated, it was also stipulated that while said car of oil was in transit a leakage was discovered in said car at Fayette Junction and traced back to Greenland, Arkansas, only 55 miles from Fort Smith; that the leak was stopped at Fayette Junction and the car was transported on to Chicago and delivered to Swift & Company who paid the purchase price therefor and the freight thereon without knowledge of the loss of 6,700 pounds of oil therefrom. As we understand this stipulation, the leak of the oil began at Greenland, some few miles south of Fayette Junction, and was discovered and stopped at the latter place.
It appears from the record, undisputed, that tank cars are large cylindrical tanks, varying in size from '75 to 85 inches in diameter and from 25 to 30 feet long, on railroad trucks; that they are loaded through the dome at the top in the middle of the tank; that the dome opening is closed by a cap about 15 inches in diameter which screws down over the opening, with two knobs on it which are used in tightening it with a wrench or bar. Inside the dome there is a handle working on a bracket,' attached to a rod which extends to a hole in the bottom of the tank, to the bottom end of which is attached a valve which fits securely in said hole, and operates to open and close the hole by use of the handle in the dome. This rod is called the valve stem. To the opening in the bottom of the tank is attached an outlet pipe, about two feet long, and four or five inches in diameter. It is threaded at the outer end and is used in unloading the tank by screwing onto it a "hose or another pipe and opening the valve by use of the handle in the dome. There is also a cap which screws on the end of the outlet pipe, called the outlet cap. It is attached to a chain which prevents its loss when unscrewed from the outlet pipe.
The evidence shows that the proper method of loading a tank car is to remove the outlet cap from the outlet pipe and then close the valve 'by means of the handle in the dome. If the valve is property seated, there can be no leak. The tank is then loaded. If there is a leak in the valve, it will drain through the outlet pipe with the cap off, and the valve should be reseated to stop it. If there is no leak, then the cap is tightly screwed on to the outlet pipe with a wrench. This system is adopted to be sure there is no leak in the valve which would not immediately be ascertainable with the outlet cap screwed on, or at all if the cap stayed in place.
For a reversal of the judgment against them, appellants first contend that certain evidence on the part of the railway company and. certain rebuttal evidence on behalf of Swift & Company was improperly admitted over their objections. .This evidence relates largely to the proper manner or method of loading’ a tank car with oil and was substantially as outlined above. We think the evidence was competent and proper under the rules announced in Blanton v. Missouri Pac. Rd. Co., 182 Ark. 543, 31 S. W. 2d 947, and Ross v. Clark Co., 185 Ark. 1, 45 S. W. 2d 31. Moreover, we cannot consider alleged errors in tire evidence introduced by the railway company, as there has been no appeal by appellant as to it.
At the conclusion of the evidence on behalf of appel-lee, Swift & Company, consisting* of the stipulation above referred to and the uniform bill of lading, appellants moved for a directed verdict in their favor, which was denied over their objections and exceptions, and this forms the basis of the second assignment of error for a reversal of the judgment. The record discloses that the railway company made a similar motion which was denied. Thereupon it introduced evidence sufficient to take the case to the jury on the question of its liability. This evidence consisted of inspections made by the Missouri Pacific, when the car was switched to appellee, railway company; by Mr. Reeves, car inspector for the latter, shortly after it was switched and again when the train was made up in which this car traveled about 8:30 p. m. of the same date; by some of the train crew at Van Burén, six miles out of Port Smith; by brakemen Jacques and Faust at Chester, 23 miles from Yan Burén; and it was again inspected at "Winslow, 11 miles north of Chester. No leak was discovered at any of these inspections. The next stop was at Fayette Junction, where the leak was discovered. The cap was off the outlet pipe and was hanging loose on the chain. Brakeman Jacques went to the roundhouse, got the hostler, Mr. Gibson, to come and stop the leak. Gibson found the dome cap screwed tightly down in place, applied his wrench to it, took it off and found the valve wide open, with the handle to the valve stem pushed upon the bracket, holding the valve open. He closed it by pushing the handle down off the bracket and immediately stopped the leak. The dome cap was replaced and the outlet cap screwed up tightly with a wrench. He found the gasket on the outlet pipe in g*ood condition and there were no defects in the valve, but it had been left open, and when closed no more oil leaked out. At the conclusion of the evidence on behalf of the railway company, and after appellee, Swift & Company, had offered a witness in rebuttal, appellants again moved for a directed verdict which was denied. They then put on their testimony which tended to show that the car was properly loaded and that no negligence occurred in loading. They then renewed their motion for a directed verdict which was denied.
It will he noticed that neither appellants nor the railway company stood upon their motions for directed verdicts, but went ahead and put on their testimony. In doing so, appellants waived their requests made prior to the conclusion of the evidence. The rule in this regard is well stated in Grooms v. Neff Harness Co., 79 Ark. 401, 90 S. W. 135, on rehearing, p. 407, 96 S. W. 132 as follows: “After verdict the only method of challenging the sufficiency of the evidence is to assign in the motion for new trial, as ground therefor, that ‘the verdict is not sustained by sufficient evidence.’ On appeal this raises that question, and in testing* the sufficiency of evidence the court must consider all the evidence, whether introduced by the plaintiff or by the defendant. So, in testing the correctness of the ruling in denying ¿ request for peremptory instruction, regardless of the time when the request is made, this court must look to all the testimony introduced, and will not reverse the case on account of the trial court’s refusal to give the request, even though the evidence was insufficient at the time the request was . made, if upon the whole case there is sufficient to sustain the verdict. ’ ’
So, appellants are in no position to insist now that the court erred in refusing to direct a verdict for it, if all the evidence, for all parties, makes a question for the jury.
It is next insisted that the evidence is insufficient to sustain the verdict. We cannot agree. The evidence shows that the car was delivered to appellants in good order; that they had exclusive charge of loading it; that it was delivered to the Missouri Pacific Railroad Company in good order, no leak; that it was frequently inspected by appellee railway company, at every stop, over a distance of about 60 miles, when the leak was discovered at Fayette Junction and that the same train crew traced the leakage back the next day on the return trip and found it began at or between Greenland and Fayette Junction. The inspections made consisted of flashing a light on the dome cap to see if it was screwed down and on the outlet pipe to see that the cap was on and that there was no leak. No duty rested upon the railway company to make any more minute inspection. It was not required, in the absence of a leak at the outlet pipe, to go upon top of the tank and remove the dome cap to see if the valve was properly seated. Witnesses for appellants testified the car was properly loaded, the valve properly seated and the dome and outlet caps properly screwed down.
There was evidence to the effect that the outlet pipe cap is not intended to hold the lading, but is intended to protect the threads on the pipe to which is attached another instrumentality in unloading. Also, that these caps often come loose and drop- off the outlet pipe, caused by the vibration of running freight trains.
Under these facts a question was undoubtedly made for the jury as to whether appellants or the railway company was at fault, and we are, therefore, of the opinion that the evidence was sufficient to support the verdict.
Error is, also, assigned on account of the giving and refusal to give numerous instructions, one of which is No. 3, given as follows: “You are instructed that the plaintiff is entitled to recover herein said amount of $620.40, and it is your duty to find a verdict against both or either of the defendants, as the facts warrant, for one or both of them are liable as defined by other instructions in this case.”
We think this a correct declaration, and we do not understand that appellants question it, except in connection with certain instructions given at the request of the railway company. While we doubt the right of appellants to question the instructions given at the request of their co-defendant, the railway company, since appel-lee, Swift & Company, was not interested in the controversy as between them and since there has been no appeal by appellants against the railway company, see Beave v. St. Louis Transit Co., 212 Mo. 331, 111 S. W. 52, and Barr v. Nafziger Baking Co., 382 Mo. 423, 41 S. W. 2d 559, still we have carefully examined the questioned instructions and find them not subject to the criticism made. We have also examined appellant’s requested instructions which were refused and find that the court properly refused them. We do not set out all these instructions and requested instructions, as to do so would unduly extend this opinion to no useful purpose. Suffice it to say that the court fully and fairly instructed the jury on the issues. This disposes of the appeal of Swift & Company against the railway company.
The judgment is affirmed. | [
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"William S. Arnold, Special Justice.
This case comes on appeal from an order of the circuit court granting summary judgment to the appellee pursuant to a motion for summary judgment filed.
The complaint was filed in November 1965 and amended in March 1966. The original defendant, Mat-son, filed a general denial and the intervenor, Travelers Insurance Company, filed motion to make more definite and certain. •
The defendant responded to the intervention and propounded interrogatories to which Travelers responded. The plaintiff also propounded interrogatories to which responses were made and the defendant interrogated the plaintiff and the complaint was again amended, this last amendment setting forth certain specific allegations of alleged noncompliance by the defendant with provisions of Act No. 161 of 1937 and the Safety Code promulgated pursuant to the Act.
A pretrial order was entered by the trial court, which order found that certain facts were undisputed and set forth the claims of the parties and enumerated the legal issues and fact issues, this order being entered July 11, 1967.
Subsequent to entry of the pretrial order the defendant moved for a summary judgment and the plaintiff and intervenor responded denying that there was no genuine issue as to material fact. On September 21, 1967, the trial court entered its order granting the motion for summary judgment from which comes this appeal.
The undisputed facts, as found in the pretrial order, indicate that the defendant, Matson, contracted with Trustees of Henderson State College to construct a building and subcontracted to Cook & Sons (whose Workmen’s Compensation Carrier is the intervenor, Travelers) the masonry work and the plaintiff, Gordon, was an employee of Cook and injured in the scope of his employment on August 22, 1963, while engaged in removing materials in a buggy from the floor- of a portable hoist device known as a “lad-E-vator” owned, maintained, erected, positioned and operated by Cook. The exhibits include the prime contract to Matson and subcontract with Cook. The prime contract is in ATA standard form and contains provisions regarding compliance with safety codes. The subcontract obligates the subcontractor to discharge the provisions .of the prime contract as it relates to the work of the subcontractor.
The amended complaint alleges that the defendant, Matson, was obligated to provide to employees of Oook a safe place to work and to respond in damages if, as is alleged, there was noncompliance with the provisions of the Safely Code promulgated under Arkansas Statutes 81-101 on theory that responsibility ultimately rests on the prime contractor for assuring compliance with the (Ado by subcontractors in order to satisfy the obligation of the prime contractor to provide a safe place to work and further alleges that this responsibility included providing stationary platform, toe boards and guard rails and that these safety devices did not exist at the place of employment of the plaintiff and that his injuries resulted from their absence, or would not have occurred had they been present. Specifically it is also alleged that the space between the building under construction and the elevator hoist was spanned by a removable plvboard slab and the absence of a fixed, stationery platform at this construction level was the responsibility of the defendant, Matson, and that its absence caused or contributed to cause the injuries.
The undisputed facts as shown by the pretrial order are to the effect that the plaintiff, employee of the sub contractor, sustained injuries in a fall from the third floor level, that the space between the construction and the hoist was bridged by a plywood board and that the hoist had been located and was under the exclusive control of the subcontractor in its operation and had been provided by him. It is conceded that the prime contractor did not exercise any supervision or control of any of these activities by the subcontractor or his employees.
We arc therefore forced to the conclusion that unless the trial court has erred in its legal conclusion based upon the undisputed facts established by the pretrial order then the order granting summary judgment must be affirmed. Epps v. Remmel 237 Ark. 391, 373 S.W. 2d 141; Jones v. Comer, 237 Ark. 500, 374 S.W. 2d 465.
It appears to be the general rule that the responsibilities of the prime contractor to employees of the subcontractor on the job are comparable to the duties of the owner of the premises. This is a duty to exercise ordinary care and to warn in the event there are any unusually hazardous conditions existing which might affect the welfare of the employees. The recognized exception occurs if the prime contractor has undertaken to perform certain duties or activities and negligently fails to perform them thereafter or perform them in a negligent manner. Aluminum Ore Co. v. George, 208 Ark. 419 186 S.W. 2d 656.
Then unless the Legislative enactments, Arkansas Statutes Section 81-101 et seq or the contract with the? owner create liability to the plaintiff under the particular circumstances existing here it does not appear thaJ‘ there is liability on the part of the prime contractor.
Section 81-120 contains provisions for penalties resulting from violation of the Act or rules issued by the Commissioner of Labor and provides for recovery of these penalties in criminal proceedings or by a civil ac tion brought in the name of the State. The Act being penal in nature should be strictly construed. The Act contains no language indicating any intent on the part of the Legislature to alter the existing law with respect to division of duties and responsibilities between prime and subcontractors and we therefore conclude that Section 81-101 does not arbitrarily place responsibility for compliance upon the prime contractor.
We find no basis for holding that the defendant, Matson, by contracting with the owner for construction of the improvements and to protect the owner from liability arising from the work thereby also assumed the position of an insurer of the safety of employees of a subcontractor where his own employer is legally and contractually obligated in these matters by provision of the Statute, Section 81-101, and the contract with Mat-son. To hold the prime contractor responsible to assure compliance by all subcontractors by actual physical inspection and direction would be to write for the parties a contract different from that into which they entered and would destroy the relationship of independent contractor existing between them.
We therefore conclude no error occurred and the judgment ought to be affirmed.
Brown, J., disqualified.
Fogleman, J., dissents. | [
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Holt, J.
On February 3, 1937, appellees filed suit, for unlawful detainer in the Polk circuit .court against appellant, L. M. Dover, and for possession of three lots, in the town of Hatfield, which they claimed to own, and for rents. Appellant filed answer and after issues joined, the cause was submitted to the court and on April 27,. 1937, judgment was rendered in favor of appellees,, awarding them possession of the property, but held that, no sufficient showing was made to entitle them to rents.. From this judgment, appellant Dover, in apt time, perfected his appeal tó this court, and on the 3rd day of May,, 1937, executed a supersedeas bond, with himself as principal and Ober Rowe, D. 0. Dover and Dr. C. A. Campbell as sureties. His appeal was prosecuted to this court andl the judgment of the trial court was affirmed on November 22, 1937, and is reported in 195 Ark. 496.
Upon the return and filing of a mandate with the clerk: of the Polk circuit court, appellees filed a motion in the-Polk circuit court for a summary judgment against appellants, Dover as principal and Ober Rowe, D. 0. Dover and'. Dr. C. A. Campbell, as sureties on the supersedeas bond,, for rents on the property in question, in the sum of $324.70, which had accumulated during the appeal to this court, covering the time appellees had been deprived of the possession and use of said property, pending said, appeal, from April 27,1937, to February 25, 1938.
Appellants filed their joint response to the motion denying the right of appellees to recover for rents and damages, and pleading as a complete bar to the action, on the bond, both that the bond did not bind appellants for the payment of rents, and that all questions raised in the motion, except that of physical damage to the property, were res adjudicaba. They further pleaded that the bond was not in statutory form and ottered that as another defense to summary judgment thereon. Upon the petition, response, evidence of witnesses introduced by both appellants and appellees, the original judgment of the trial court and its findings of law and fact in the first trial, the court entered judgment in favor of appellees and against appellants in the sum of $324.70 for the rents accruing since the (judgment in the original suit rendered on April 27, 1937, up to February 25, 1938, the latter date being the time appellants surrendered possession of the property in question to appellees. From this judgment comes this appeal.
Omitting formal parts, the motion for summary judgment filed by appellees is as follows. “Come the plaintiffs, Talmadge Henderson and' Yivian Henderson, and move the court for judgment against the defendant, L. M. Dover, and the sureties on his supersedeas bond, Ober Rowe, D. 0. Dover and Dr. C. A. Campbell, and each of them, for cause state: That on the 23rd day of April, 1937, plaintiffs were awarded a writ of possession against the' defendant, L. M. Dover, by an order of this court for possession of lots 4, 5 and 6 in block -5, of the town of Hatfield, in the above-styled action. That the defendant prayed and was granted an appeal to the Supreme Court of Arkansas from said order and judgment of this court, and on the 3rd day of May, .1937, the defendant, L. M. Dover, and Ober. Rowe, D. 0. Dover and Dr. C. A. Campbell executed a supersedeas bond wherein it was provided that they would pay all rentals and damages to said plaintiffs during the pendency of the appéal, of which appellees, plaintiffs herein, were kept out of possession by reason of said appeal. That said supersedeas bond was duly filed with the clerk of this court on the 3rd day of May, 1937, and a copy of said bond is attached hereto, marked Exhibit “A”, and made a part of this motion. That thereafter the defendant perfected his appeal to the Supreme Court, and on the 31st day of January, 1938, the date when said judgment was affirmed, and thereafter, until the 25th day of February, 1938, the defendant kept plaintiffs out of possession of the said property and retained the use and possession of said property himself. That during said period of time the defendant failed, refused and neglected to pay the rental on said property and still continues to refuse payment of said rental. That the customary and proper rental to which plaintiffs are entitled for said period of time is one cent per gallon of the gasoline sold by said defendant at his station on said property, and that during said period the defendant sold 32,470 gallons of gasoline, and the rental thereon amounts to the sum of $324.70 and $100 damages to building. That the plaintiffs are entitled to a judgment against the defendant, L. M. Dover, and the sureties on said supersedeas bond, Ober Eowe, D. 0. Dover and Dr. C. A. Campbell, and each of them, in the sum of $324.70 as reasonable rental and damages for the use of said property and withholding the same from the plaintiffs. •Wherefore plaintiffs ask for judgment against the said L. M. Dover, Ober Rowe, D. O. Dover and Dr. C. A. Campbell in the sum of $324.70 as rental and $100 damages for the use of the property herein described for the period set out and for the further sum $15 which was the cost of printing of plaintiffs ’ briefs in the Supreme Court in this cause.”
The material portions of the supersedeas bond, copy of which was made a part of this motion as Exhibit “A”, are as follows: . . . “Now, L. M. Dover, as principal, and Ober Rowe, D. O. Dover and Dr. C. A. Campbell, as’ sureties, hereby covenant with the said appellees that the said appellant will pay to the appel-lees all costs and damages that may be adjudged against the appellant on the appeal, . . . and shall perform the .judgment of the court appealed from . . . and all damages to property during the pendency of the appeal of which the appellees are kept out of possession by reason of the appeal. ’ ’
Appellants in their joint response to this motion allege as follows: “They deny that said bond bound the respondents to pay all rents and damages.to said.plaintiff s during the pendency of the appeal; they state that, in the complaint filed in this action, the plaintiffs ask judgment against the defendant, L. M. Dover, for rent upon the property involved herein, the sum prayed for being cumulative as such rents might accrue;.that.when judgment was rendered in this cause against the said defendant on April 23, 1937, the court specifically found that the plaintiffs were not entitled to rent upon said property, as is shown by the court’s findings of fact and! of law, a copy of which is attached hereto, marked Exhibit “A”, that upon said findings of facts and law the judgment of the court was entered upon the record, said .judgment being specifically referred to herein, and in said judgment the plaintiffs were not awarded judgment for rents. That upon the rendition of said judgment the said defendant appealed from the portion thereof which was against him, but the plaintiffs did not appeal nor cross-appeal from the findings and judgment upon the question of rents; that the time for such appeal or cross-appeal has now expired, and that the said judgment of this court has now in all things been affirmed by the Supreme Court of Arkansas, as alleged in plaintiffs ’ motion. That in the answer to the original complaint of the plaintiffs, the said defendant denied that he owed the plaintiffs for any rents; that the issue thus joined was material to this cause as first presented, and that the question of rents, therefore, has been fully adjudicated and determined against the plaintiffs, and is now res adjudieata. That because no judgment for rents was entered against the said defendant, the supersedeas bond upon which judgment is now asked by the plaintiffs did not include rents or any damage except physical damage to the property, and that, therefore, the respondents are not liable to the plaintiffs for rents or any other damage except physical damage to the property. That the said bond is not in the statutory form, and does not, therefore, authorize or permit judgment against sureties, thereon. The respondents plead ¿11 of the above matters- and things as a complete bar to plaintiffs ’ motion,- and allege that all the issues raised in said motion are res ad judicata.”
Omitting immaterial parts, the trial court at the close of all the testimony, entered judgment as follows: “Whereupon the cause is submitted upon the motion for judgment on supersedeas bond, the response and plea of abatement interposed thereto on the part of the respondents and oh the evidence taken on the part of both plaintiffs and respondents. The court béiiíg well and sufficiently- advised as -to all mattefsiof fact and law arising-herein doth find.' That "the damages sustained by plaintiffs by reason of the wrongful withholding of said possession from the date of judgment of this' court until the date when the possession of the property was restored to plaintiffs amounted to $324.70, said damages being in the nature of rentals based on the usual customary rent-' al on said-''property and other property of similar character rented in like manner in that community. That under the terms and conditions of said supersedeas bond' the -respondents, and' each of them are liable to the plaintiffs* in damages in said sum of $324.70,” and ordered that appellees recover of appellants and each of them in the sum of $324.70.
On this state of the record appellants earnestly contend, first, 'that since there was no judgment for money réildered in- the original 'case the court did not have authority to grant ’ summary judgment upon the bond. It is ff'ruU'that the only judgment rendered by the court in the origiiial suit was for possession of the lots in question'and no money judgment was awarded, and this court on appeal from that judgment could award none, however, the judgment that we are now considering on this appeal is a judgment growing out of the liability of appellants incurred on the supersedeas bond which hinds appellants to pay to appellees “all damages to the property during the pendency of the appeal of which appel-lees are kept out of possession by reason of the appeal.” Obviously no judgment could have been rendered by the circuit court for rents at the time of the trial on the bond .for none had accrued within the terms of the superse-deas bond at that time. The provision of the statute, Pope’s Digest, § 2785, with reference to judgment against sureties is as follows: “Upon an affirmance of any judgment, order or decree by the Supreme Court, which has been wholly or in part superseded, judgment shall be rendered and entered up against the securities on the supersedeas bond, and the court shall award execution' thereon.” It is clear, therefore, that when'the'judgment of the trial court was affirmed the liability of the principal, and sureties on the supersedeas bond became fixed, however, the-extent of their liability and'the-amount of appellees’ recovery against appellants""for rents or damages must be tested by an action at law on the bond as was held in Bolling v. Fitzhugh, 82 Ark. 206, 101 S. W. 173.
We have set out at length the motion for summary judgment and the response thereto filed by the parties in the court below. We hold that the effect of these pleadings and the trial thereon amounted to a suit at law on the bond in question. It makes no'difference whether they be called a motion and response or a complaint and answer, their effect and the judgment rendered must be the same. Section 1232 of Pope’s Digest provides : “The forms of all actions and suits heretofore existing are abolished.” Climer v. Aylor, 123 Ark. 510, 185 S. W. 1097. The case' was tried and fully developed on the issue as to the amount of rents to which appellees were entitled during the pendency of the appeal. No rights were denied’ appellants. The trial court found this amount to be $324.70. To hold that this procedure was not in effect an action at law on the supersedeas bond in question would be to put form above substance.
Appellants next contend that the bond was not in statutory form and did not cover rents. The superse-deas bond upon which the judgment in this case is based is a statutory one and not a common law bond. In all cases appealed to this court when the appellant executed a supersedeas bond, § 2765 of Pope’s Digest sets out specifically the provisions and conditions that such supersedeas bond shall contain. Among other things this section provides as follows: ‘ ‘ Will satisfy and perform the judgment or order appealed from in case it should be affirmed, and any judgment or -order which the Supreme Court may render, or order to be rendered by the inferior court, not exceeding in amount or value the original judgment or order, and all rents or damages to property during the pendency of the appeal of which appellees are kept out of possession by reason of the appeal. ’ ’
The bond, in the instant case, contains this provision of the statute except that the word “rents” is omitted, so that the only variance between- the statutory bond and the bond which was actually filed in the instant case and upon which the judgment was predicated, was the omission of the one word “rents.” We hold that the word “damages” as used in the bond filed in the instant case was broad enough to include rents, and that it was the intention of the parties that rents were included. This being a statutory bond the provisions of the statute must be considered as written into it.
In New Amsterdam Casualty Co. v. Detroit Fidelity & Surety Co., 187 Ark. 97, 58 S. W. 2d 418, this court said: “The bond sued on is a statutory bond, and such bonds, executed in the form prescribed by the statute, are to be construed, as respects the rights of both principal and surety, as though the law requiring and regulating them were written in them. Crawford v. Ozark Ins. Co., 97 Ark. 549, 134 S. W. 951; Detroit Fidelity & Surety Co. v. Yaffee Iron & Metal Co., Inc., 184 Ark. 1095, 44 S. W.2d 1085; Zellars v. National Surety Co., 210 Mo. 86, 108 S. W. 548; 9 C. J. 34. In construing this bond the court must construe it as if the law were written into it. ’ ’ See also Jones v. Hadfield, 192 Ark. 224, 96 S. W. 2d 959, 109 A. L. R. 488.
Again in United States Fidelity & Guaranty Co. v. Fultz, 76 Ark. 410, 89 S. W. 93, this court said: ‘ ‘ The bond was executed pursuant to the instructions of the statute and the obligators are presumed to have known the terms of the statute and to have bound themselves with reference thereto.”
In Wilson v. King, 59 Ark. 32, 26 S. W. 18, 23 L. R. A. 802, this court points out the functions of a supersedeas bond in the following language: “In order to stay the proceedings on a judgment or.decree, during an appeal therefrom to this court, the statute requires the appellant to file a bond, executed by one or more sufficient sureties, to the effect, among other things, that the appellant shall pay ‘all rents or damages to property during the pendency of the appeal, of which the appellee is kept out of possession by reason of the, appeal. ’ The effect of the bond is to secure the payment of the value of the use of the property for the time appel-lee was deprived of the possession, and the damages to it during the same time, in the event the judgment or decree is affirmed. The object is to protect the appellee. . . . When filed, it relates back, and covers all rents and damages which accrued before and after it was filed, and during the pendency of the appeal. Dugger v. Wright, 51 Ark. 232, 11 S. W. 213, 14 Am. St. Rep. 48; Bentley v. Harris, Admr., 2 Grat. 357.”
We hold, therefore, that no error was committed in this regard.
Appellants finally contend that the question of rents was res ad judicata. We think there is no merit to this contention for the reason that whatever rents, if any, may or may not have been due up to the time of the original trial in the circuit court below, could have no bearing on such rents as might accrue during the pendency of the appeal, and the decision of the trial court holding against appellees on the question of rents due up to the time of' the judgment of the trial court in-the original suit cannot affect the court’s judgment for rents from the date of the judgment in the original suit during the time of the appeal from that judgment.
On the whole case we hold that there were no errors, and the judgment of the trial court should be affirmed, and it is so ordered. | [
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John A. Fogleman, Justice.
This appeal comes from a judgment awarding appellees $8,500 as just compensation for the taking of 19.54 acres out of a 59-aere tract of land. Two grounds for reversal are asserted. The first is an allegation of error in the denial of appellant’s motion for a change of venue. The second is the contention that the verdict is not based on substantial evidence and that it is excessive. These points will be discussed in the order mentioned.
Before the date the case was set for trial, appellant filed a motion for a change of venue. The allegation that appellant could not obtain a fair and impartial trial in Conway County, Arkansas was based upon a list of 15 cases in which juries in that county had awarded compensation to owners of lands taken by appellant under 1 he power of eminent domain in amounts substantially in excess of the amounts stated to be just compensation by witnesses called by appellant. The motion was verified on behalf of appellant by its attorney. No affidavit in support of the motion for change of venue was filed. In support of its motion, appellant offered only the record of the testimony of another one of its attorneys. This was presented when the case was called for trial. He stated that he had personal knowledge of some of the awards and had knowledge of the value testimony adduced by the parties on the issue of just compensation. His investigation covered the period from June 19, 1967, through July 20, 1968. He investigated the transcripts and files prepared by attorneys for appellant who tried cases in that county during that period. His testimony simply confirmed the allegations of the motion for a change of venue enumerating the amounts of the jury awards and the amounts indicated as just compensation by expert witnesses for both parties in each case.
Our statute requires not only that a motion or petition for change of venue be verified, but, in addition, that it be supported by the affidavit of at least two credible persons that they believe the statements of the petition are true. Ark. Stat. Ann. § 27-701 (Repl. 1962). The motion may be resisted and the judge of the trial court may make an order for the change of venue if in his judgment it be necessary, for a fair and impartial trial. Ark. Stat. Ann. § 27-703 (Repl. 1962). Venue of a civil action shall not be changed unless the court or judge finds that the same is necessary to obtain a fair and impartial trial of the cause. Ark. Stat. Ann. § 27-704 (Repl. 1962). The granting or denial of a change of venue lies largely in the discretion of the trial judge. Louisiana, & Northwest Rd. Co. v. Smith, 74 Ark. 172, 85 S.W. 242; Desha v. Independence County Bridge Dist. No. 1, 176 Ark. 253, 3 S.W. 2d 969. This court will not reverse the trial court’s denial of a change of venue unless there has been an abuse of its discretion. Van Camp v. State, 125 Ark. 532, 189 S.W. 173; Adams v. State, 179 Ark. 1047, 20 S.W. 2d 130; Meyer v. State, 218 Ark. 440, 236 S.W. 2d 996: Walker v. State, 241 Ark. 300, 408 S.W. 2d 905. We cannot say that there has been an abuse of discretion on the part of the trial court when there has not been compliance with the statute governing change of venue. Even if we should agree with appellant that the testimony of its attorney was proper and sufficient to constitute a supporting affidavit as required by § 27-701, this would not be compliance. No matter how credible one affiant may be, a petition for change of venue supported by the affidavit of only one person is properly overruled for non compliance with a statute requiring the affidavit of two credible persons. Clayton v. State, 191 Ark. 1070, 89 S.W. 2d 732; Davis v. State, 170 Ark. 602, 280 S.W. 636; Hopson v. State, 121 Ark. 87, 180 S.W. 485. There is no error in the denial of a motion for a change of venue which is uot in compliance with the governing statute. Hale v. State, 146 Ark. 579, 226 S.W. 527; Crow v. State, 190 Ark. 222, 79 S.W. 2d 75.
Appellant contends that the testimony of Mr. Charles Owens, an expert value witness called by appellees, did not constitute substantial evidence because he never did give the values of comparable sales used by him in arriving at his value testimony in dollars and cents, although he admitted that some of the sales upon which he based his valuations were of more valuable property than the property of appellees. Appellant admits that this witness qualified as an expert on real estate values in the area. He also showed his familiarity with the property in question. Under these circumstances he was not required to state the facts or reasons forming the basis for his opinion in order to render his opinion as to value admissible. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W. 2d 436; Arkansas State Highway Commission v. Dixon, 246 Ark. 756, 439 S.W. 2d 912. It was incumbent upon appellant to show that Owens had no reasonable basis for his opinion before it could be said that his testimony was not substantial. Arkansas State Highway Commission v. Johns, supra; Arkansas State Highway Commission v. Dixon, supra. Thus, the burden fell upon appellant to show that the dollar value of the sales upon which Owens relied lent no support to his opinions. Since appellant’s attorneys did not inquire as to these values, they are in no position to contend that the witness’s failure to give them rendered his testimony insubstantial.
Appellant also argues that Owens based his value testimony upon an incorrect premise, i.e., the market value of five- and ton-acre plots sold from the subject land. We think that the jury might properly have otherwise construed his testimony. Upon request of appellees’ attorney to state some of the comparable sales considered in arriving at his values, Owens stated that there had been several along Highway 64 which had highway frontage and would be more valuable than the property in question and consequently sold for a higher price. He then stated that the bases of his values were these sales and the amounts for which the property could be resold in five- and ten-acre plots for homesites. No objection was made to this testimony, except the objection that the sales were not comparable, which was overruled. On cross-examination, krr. Owens stated that he was aware that appellees’ land was not subdivided or platted, but he considered the development of it would be in five- to ten-acre plots rather than for sale of the property as a whole in determining the value per acre. On redirect examination, these questions were asked and answers given:
“Q. In considering your value and placing your ■ value, you understand it is what Air. Duff could have sold that whole tract to one buyer or combine?
A. Yes.
Q. Before and after?
A. Yes, sir.
Q. Not what he could have sold it for in five or ten acre tracts, but all in one tract at one time?
A. That’s right.
Q. You are talking about what the "Duffs could have done v7ith the water available?
A. Yes, sir.
Q. "Which would make it desirable?
A. Yes, sir.
Upon recross-examination, Owens answered affirmatively to tlie following question:
“Q. You described this property and the drain being through it, is it your testimony — It is my understanding you think there would be a market — would have been a market for this whole 59 acres before the taking that somebody would have been willing to pay $23,600.00 for this property you described?”
In determining whether a verdict is supported by substantial evidence, we must review the testimony in the light most favorable to the appellee and indulge all reasonable inferences in favor of the judgment. Arkansas Skate Highway Commission v. Carder, 228 Ark. 8, 305 S.W. 2d 330; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381; Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S.W. 2d 478. We cannot say that the testimony of Owens, viewed in that light, included values based only on the total of separate sales of lots from the property in question. There was no testimony as to the number of lots that could be sold from the property and Owens clearly stated, both on redirect and recross-examination, that his total values were market values for a sale of the entire tract. Furthermore, the opinion of an expert is not rendered without reasonable basis merely because he bases value figures partially on what lots are selling for in the area. Arkansas State Highway Commission v. Sargent, supra. We also said in the Sargent case that in considering testimony based on comparable sales, it must be remembered that no two tracts of real estate are identical and that reasonable latitude must be allowed in evaluating sales and adjusting and compensating for differences in similar lands. Here, as there, it would not. be reasonable to suppose that one making a study of values of the tract would give no consideration whatever to tlie sale of lots in the immediate vicinity of the tract of land being appraised.
While appellant admits that Mr. Joe Duff, one of the appellees, was competent to testify, it makes virtually the same arguments about the substantiality of his testimony. Appellant admits that this witness based his testimony as to just compensation on his general knowledge of land values in the area as well as on comparable sales. Mr. Duff did display his familiarity with the laud, its relationship to roads and highways, its location with-reference to the city limits of Plumerville' and the streets of that city, the existing easements across the property, the availability of utilities to the property, the uses to which the property had previously been "put, drainage conditions, and the location of houses bordering the property. It has been generally recognized by this court that the opinion testimony of the owner of property is competent and admissible on the question of value, regardless of his knowledge of property values. This is based upon the intimate acquaintance with the propertv arising from his relationship as owner. Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S.W. 2d 1; Arkansas State Highway Commission v. Drenven. 241 Ark. 94, 406 S.W. 2d 327; Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201. This does not mean that the testimony of any and every eondemnee constitutes substantial evidence. His testimony must be examined to determine whether a satisfactory explanation is given for the conclusion reached. Arkansas State Highway Commission v. Dorr, 246 Ark. 204, 437 S.W. 2d 463. In that case, the owner did not' reside, upon tlio laud, had no knowledge of market values, and testified about the “worth” of the land, relying principally upon sentimental bases and the desires of her deceased husband. In this case, Duff had lived in Plumerville for most of his life until about two years before the trial when he moved to Morrilton, a few miles away in the same, county. The city limits of Plumerville hounded the Duff property on two sides. In view of the demonstrated familiarity of this landowner with the property, we cannot say that his testimony is not substantial. See Arkansas State Highway Commission v. Maus, supra.
The judgment is affirmed.
Byrd, J., concurs. | [
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Mehaffy, J.
This'action was instituted by appellees against the appellant, Everton Silica Sand Company, Incorporated, in the Boone circuit court to recover damages for personal injury to Harold Hicks, who was seventeen years old at the time.
V. A. Hicks, the father of Harold Hicks, sued as next friend of Harold Hicks, and also in his own behalf.. The appellant, Everton Silica Sand Company, Inc., is a corporation under the laws of Arkansas engaged in the silica sand business at Everton, Arkansas. It is alleged that on July 23,1937, Harold Hicks was working as an employee of the appellant at Everton when he sustained serious and permanent injury, caused by the negligence of the appellant. Harold Hicks was working'in the second story of said plant approximately twelve feet above the floor of the second story, where there were two cog wheels operating on separate shafts, the cogs fitting into and between each other; he had worked at the plant only a short time; he was ordered by his foreman to go up where. the cog wheels were located and oil them by pouring crude oil upon the cogs; no instructions were given him as to rules and methods of safety; the only method he had ever seen employed in oiling the wheels was to take a small can, dip it into crude oil, and pour the oil, from the can onto the cogs while .the machinery was in operation; while the wheels were turning, the only way he could get near the cog wheels was to climb upon a plank about two inches thick, ten inches wide, and twenty feet long, extending from two walls or platforms about ten feet above the second floor; there were no supports for said plank other than the pillars at the ends thereof, leaving some 18 or 20 feet 'between the ends unsupported and permitting said plank to sag in the middle; that the plank extended within two or three feet of the cog wheels, and to oil them it was necessary for’ appellee to stand upon the plank and reach over the end of an intervening beam, a distance of two or three feet, to pour the oil while in a stooping position; the weight of appellee caused the plank to sag and this caused appellee’s foot to slip while he was in the act of pouring oil on the wheel, and he was caused to fall forward; his right hand caught in the cog wheels, crushing and mangling his hand so that his right arm had to be amputated. The negligence consisted in failure to instruct as to the proper and safe manner of oiling the wheels, and failure to warn him of danger, and failure to furnish him reasonably safe instrumentalities and appliances, and to provide him a reasonably safe place on which to stand.
Harold Hicks sought to recover for his injury, and V. A. Hicks for loss of services of his son and moneys expended for doctor’s bills and other expenses incident to the injuries.
The appellant answered denying the material allegations of the complaint, pleading assumption of risk and contributory negligence.
There was a verdict and judgment for Harold Hicks in the sum of $3,150 and for V. A. Hicks in the sum of $350. The case is here on appeal.
Harold Hicks, a boy seventeen years old, began work for appellant on June 1, 1937, and was injured on July 23rd, thereafter. The building where he worked was two stories, and he had to work' in both stories. His job was to keep the screen clean, and oil up the machinery in the morning before it started, if it needed oiling. The cogwheels which he was oiling at the time he was injured did not have to be oiled every morning, but only once or twice a week; he was instructed to oil them when they needed it. In order to oil the cog wheels, he had to' climb up strips nailed on the wall to a height of ten or twelve feet. There was a plank ten or twelve feet above the floor of the second story which was. about two inches thick, twelve inches wide, and about twelve feet long. He had to stand on this plank and stoop over to pour the oil on the cogs; there was no support under the plank except at each end, and it sagged. While he was stooping over oiling the cogwheels, his foot slipped and his hand was caught in the cogwheels; his hand and arm were crushed, so that his right arm had to be amputated; he had received no instructions whatever from anyone; he had simply been 'told by the foreman to oil the cogs when they needed it; his foreman had told him not to stop the machinery to oil the cogs unless it had to be stopped; his arm was crushed up to near his shoulder; he knew about the. cogwheels, and, of course, knew they were dangerous.
Two or three witnesses for appellant testified that shortly after his injury he stated to them that he did not know how it happened. These witnesses also stated that he did not seem to be suffering much at the time. One witness testified that she told appellee that he had made a mistake and that he said: “Yes, that is true.” At the same time, she inquired how.the accident happened, and he said he guessed he was where he had no business, but he thought he could get away with it. This conversation was after they brought him to the hospital, but before they amputated his arm. There was also some evidence introduced by the appellant to the effect that the plank did not sag.
The evidence shows that V. A. Hicks, father of the boy, owed a doctor’s bill of $259 and another bill of $10, and expenses for dressing of $3, and that what he had spent because of the injury, together with the doctor’s bill, amounted to something over. $300.
All of- the evidence shows that the boy was strong and healthy and was earning $50 per month.
It is first contended by appellant that the evidence is not sufficient to sustain the judgment, and that appellant was entitled to a directed verdict. It is argued that the danger, if any existed, was open and patent; that there were no hidden or latent dangers about the place of employment.
An adult servant, when he enters employment, assumes all the risks and hazards incident to the employment. He does not, however, assume any risk that results from the negligence of the master or any other servants, unless he knows of such risks. But this is not true where the servant is a. seventeen-year-old boy. In order to assume the risk he not only must know of the danger, but must appreciate it, comprehend it; and everyone knows that a seventeen-year-old boy does not possess the judg ment of a grown person. The authorities are practically unanimous in holding that such a person must be warned and instructed if he is to be exposed to dangerous machinery.
The general rule is stated as follows:
“(1) That the master owes a duty towards an employee who is directed to perform a hazardous and dangerous work, or to perform his work in a dangerous place, when the employee, from want of age, experience, or general capacity, does not comprehend the dangers, to point out to him the dangers incident to the employment, and •thus enable him to comprehend, and so avoid them, and that neglect to discharge such duty is gross negligence on the part of the employer; (2) that such an employee does not assume the risk of the dangers incident to such hazardous employment, because he does not comprehend thém, and the law will not, therefore, presume that he contracted to assume them. ’ ’ Labatt’s Master & Servant, Yol. 3, p. 3067.
Appellant cites and relies on a number of authorities, but in each of the cases wliere the servant was held to assume the risk, the servant' was either an adult, or if a minor, had been given instructions and warnings. In the case of Arkadelphia Lbr. Co. v. Henderson, 84 Ark. 382, 105 S. W. 882, a seventeen-yfear-old boy was injured. The court discussed the rule as to assumption of risk by servants, and said: .
“If the danger of the émployment is patent, and the servant, by reason of his youth and inexperience, does not know or appreciate the danger incident to the service he is employed- to do, it would be the duty of the master to warn him of it and instruct him to avoid it, so far as it can be, before exposing him to it. (Citing authorities.) In all cases where there is a duty to warn a servant, it would be a breach of such duty to expose him to such dangers without giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding and prudence, be sufficient to enable him to appreciate the dangers and the necessity for the exercise of due care and precaution, and to do the work safely, so far as it can be done with the proper care on his part. For a breach of this duty the master is liable for the damages resulting therefrom.”
Appellant calls attention to the ease of Furlow v. United Oil Mills, 104 Ark. 489, 149 S. W. 69, 45 L. R. A., N. S., 372. In that case the court said:
“If, however, the servant, by reason of his youth and inexperience, is not aware of or does not appreciate the danger incident to the work he is employed to do or to the place he is engaged to occupy, he does not assume the risks of his employment until the master apprises him of 'the dangers.”
It is contended that the court erred in giving instruction A, which reads as follows:
“The jury is instructed that it is the duty of every company employing young and inexperienced employees in Arkansas to instruct such employees as to the proper manner to do the work they are employed to do; and if you find from a preponderance of the evidence that Harold Hicks was young and inexperienced in the work he was employed to do for the defendant company, then it was the company’s duty to so instruct him.”
The specific objection urged to this instruction is that it broadens the duty of the defendant beyond the requirements of the law. "We do not think so, and appellant does not point out wherein it broadens the duty. Another objection urged to it is because appellant says there is no evidence in the record that the plaintiff was inexperienced, nor that there was a failure to warn him, or that there were any dangers of which he was not fully advised.
The appellee testified that he did not receive any warning or instruction from anybody.
Appellant also urges that there was no evidence that the appellee was inexperienced. The law is that warning and instruction must be given if the employee is inexperienced or a minor. In this case there is no dispute about the fact that the appellee was only seventeen' years of age. The appellee did not state that he appreciated the dangers, and it is matter of common knowledge that a boy seventeen years of age does not possess discretion and judgment and appreciate dangers as an older person would. He knew the cogs were there and knew it was dangerous, but there is no evidence that he appreciated the danger.
It is urged that instruction B was wrong because the court told the jury that it was the duty of a corporation employing men to use care, etc. Of course, it is the duty of a master generally, whether it is a corporation or individual, and no prejudice could have resulted from the use of the word “corporation.”
The objection urged to instruction No. 1 is, first, that no ordinary jury could understand it, and that it is confusing and misleading. The instruction is very long, but we do not think it is misleading or confusing, or that it imposes a higher duty on appellant than is required by law.
It would serve no useful purpose to discuss in detail all the instructions, -but we have carefully considered all of them and have reached the conclusion that the instructions, considered as a whole, correctly stated the law to the jury.
The law is well settled in this jurisdiction that the master is liable for injury to a minor by dangerous machinery unless the minor has been given proper warning and instructions.
The judgment is affirmed. | [
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George Rose Smith, Justice.
In 1965 Curtis Boy Donahue was killed and Preston Brown injured when the sides of a deep narrow trench in which they were laying sewer pipe caved in, burying both men until rescuers dug them out. These actions for wrongful death and personal injuries were brought against the appellee, Cam L. Cowdrey, whose equipment was being used to excavate the trench. The cases were consolidated for trial. This appeal is from a verdict and judgment for the defendant. The principal arguments for reversal center upon the court’s instructions to the jury.
At the trial the principal issue of fact, as developed by the proof offered by the plaintiffs and by the defendant, involved the application of the borrowed-servant doctrine. Donahue and Brown were both employed by Olint Reynolds Plumbing Company. Reynolds had agreed to install for Thibault Milling Company a sewer line running from the Thibault mill to a city sewer main 400 feet’ away. .The line was to slope gradually from the mill to a maximum depth of nine feet at its far end.
Reynolds was not equipped to dig such a deep trench. As in earlier similar situations Reynolds arranged for Cowdrey to furnish a backhoe, with an operator, to make the excavation. The operator, Edward Vance, was a regular employee of Cowdrey. On the day of the accident the entire work crow, including Vance, Donahue, Brown, Clint Reynolds, and others, began the trench at its deepest point and worked toward the Thibault mill. The trench was only two feet wide, that being the width of the backhoe \s dredging bucket. The trench collapsed after the work had progressed for almost 100 feet.
The plaintiffs charged that Cowdrey and the backhoe operator were negligent in not bracing the excavation with timbers, in driving the backhoe too close to the trench, and in other respects that need not be detailed. Cowdrey’s principal defense, as far as this appeal goes, lay in the borrowed-servant doctrine, under which Cowdrey asserted that at the time of the accident Vance was working exclusively for Reynolds (whose liability to the plaintiffs was covered by the workmen’s compensation law). That defense presented a question of fact for the jury.
Upon the broad issue of the employer-employee relationship the court gave AMI 701, defining ‘employee,’ AMI 702, defining ‘scope of employment,’ and AMI 703, permitting the jury to consider Cowdrey’s ownership of the backhoe and his regular employment of Vance as facts bearing upon the Cowdrey-Vanee relationship at the time of the accident.
AMI contains no instruction on the borrowed-servant rule. Over the plaintiffs’ objections the court gave the following instructions upon that aspect of the case:
Instruction No. 15
One who is in the general employment and pay of another may be loaned or hired by his general or original employer to a third party for the performance of some particular services for such third party. If the original or general employer, and not the third party, retains the right to control and direct the conduct of the employee in the performance of such services then the original or general employer will be treated as his employer, with respect to such services. On the other hand, if the third party to whom the employee is loaned or hired lias the right to direct and control the conduct of the employee in the performance of such services, then the third party' will be considered his employer.
Instruction No. 16
In order for the plaintiffs, Kathleen Bailey Donahue, Administratrix of the Estate of Curtis Roy' Donahue, Deceased, and Preston Brown, to recover against the defendant, Cam L. Cowdrey, cl/b/a Rosedale Plumbing Center, you must find from a preponderance of the evidence that Edward Vance was, at the time of the occurrence, the employee of the defendant and acting within the scope of his employment.
If the services of Edward Vance were loaned or hired by the defendant to a third party and Vance was required to proceed in the performance of his work entirely under the control and direction of such third party, then he was the employee of such third party and your verdict should be for the defendant.
In attacking instruction number 16 the appellants rely generally upon the contention that a binding instruction is fatally defective if it omits an essential element of liability' or defense and specifically upon our applica tioii of that principle in Phillips Coop. Gin Co. v. Toll, 228 Ark. 891, 311 S.W. 2d 171 (1958).
The Phillips case is not so similar to this one as to be a controlling precedent on its face. -There the borrowed-servant rule -was not involved at all. A binding instruction was held to be bad (a) because it listed only-two of the several elements to be considered in distinguishing.an employee from an independent contractor and (b) because it contained a comment on the weight of the evidence. In the case at bar neither instruction 15 nor instruction 16 contained such a comment; so the applicability of the Phillips case turns upon whether number 16, which alone was binding, violated the requirement that such an instruction be reasonably complete within itself.
We are not willing to say that number 16 was fatally defective. In that instruction the trial court did not attempt, as in the Phillips case, to enumerate the various specific facts that were pertinent to the jury’s determination of the question at issue. Here the problem was that of determining Vance’s status: regular employee or borrowed servant. Several of the facts pertinent to that inquiry are discussed in the Restatement of Agency (2d), § 227, Comment c (1958). By way of illustration we take from that discussion three such facts: Vance’s comparative skill as a specialist; whether the backhoe was of considerable value; and whether Cowdrey could have substituted, another operator for Vance at any time.
Obviously that method of approaching the problem— the enumeration of specific facts bearing on the issue- — • was not adopted in instruction 16. Instead, the instruction merely referred to the ultimate fact of control, leaving counsel free to argue the specific subordinate elements to the jury. As we read the record, several of the specific pertinent facts were favorable to the plaintiffs. That is, Cowdrey owned the backhoe; the backhoe was a valuable piece of equipment; Vance was a reg nlar employee of Cowdrey; Vance was a skilled operator ; Cowdrey coidd have substituted another operator for Vance; and Cowdrey was apparently in the business of supplying such equipment, together with an operator, to others. Under the court’s actual instructions counsel doubtless argued to the jury all those component parts of the ultimate factual question. If the plaintiffs wanted the added advantage of having the court enumerate such factors to the jury in an instruction, it was the plaint iffs ’ duty to draft and submit such an instruction. That duty could not be shifted to the court or to the defendant by the objection made by the plaintiffs to the instruction —that “it does not contain all the elements of master and servant relationship or principal and agent relationship under the law.” That objection was really more general than specific, since it did not assist the court in supplying whatever elements the plaintiffs thought to be missing from the instruction as tendered.
”Ve see nothing inherently wrong in instructions 15 and 16, when they are read together.. (That they may be so read, see Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S.W. 2d 259 [1951].) Number 15 explained that an employee may be lent to a third person or may be retained in the service of his regular employer, the test being the right of direction and control. Number 16 carried that explanation of the law to its natural conclusion by stating that if Vance’s services had been lent to a third person (Reynolds) so that Vance was required to proceed with his work “entirely” under that person’s control and direction, then Vance was. the employee of that person, and the verdict should be for the defendant.
The suggestion is made that number 16 should have followed the language of number 15 by referring to the “right to control and direct” rather than to “the control and direction” of the third party. Unquestionably, however, instruction 16 was a substantially correct statement of the law; so the criticism now made about its phraseology should have been put in the form of a specific objection to the language selected. St. Louis, I.M. & S. Ry. v. Stacks, 97 Ark. 405, 134 S.W. 315 (1911); St. Louis, I.M. & S. Ry. v. Garter, 93 Ark. 589, 126 S.W. 99 (1910). Had such an objection been made the court would no doubt have suitably modified the requested charge.
The appellants’ other contentions for reversal do not require extended discussion. During the trial an objection v/as made by the defendant’s attorney to the use of the word ‘employee’ in a question put to a witness. In ruling upon the objection the court explained to the jury that the case would turn upon whether “in your opinion, in your judgment,” Yance Avas working on the particular occasion under the supervision and control of his own .employer or of Reynolds. The plaintiffs’ attorney objected to the court’s remarks as a comment on the evidence and asked for a mistrial.
The request was properly overruled. The court expressed no opinion of its own, making it clear that the question would be for the jury’s determination, under the guidance of instructions to be given later on. The granting of a mistrial is an extreme measure, to be resorted to only when “it must be apparent that justice cannot be served by a continuation of the trial. ’ ’ Back v. Buncan, 246 Ark. 438 S.W. 2d 690 (1969). Here there was no possibility of such a miscarriage of justice.
A third complaint is that the court refused to alloAv the plaintiffs ’ attorney to ask Reynolds if he had shored up the sides of the trench in completing the job after the cave-in. It is argued that a negative answer would have Aveakened Reynolds’ credibility, because he had stated earlier that he would have braced the excavation in the first plane if he had thought it to be dangerous. There Avas, however, no offer of proof that Reynolds’ answer would have been in the negative. An affirmative ansAver would have been inadmissible, under the rule of public policy that excludes proof of precautions taken to prevent the recurrence of an accident assertedly caused by negligence. See Comment, 3 Ark. L. Rev. 431 (1949). Hence the required showing of prejudice has not been made. New Hampshire Fire Ins. Co. v. Blakely, 97 Ark. 564, 134 S.W. 926 (1911).
Lastly, it is insisted that the court should not have given AMI 206, which told the jury that Cowdrey, asserted negligence on the part of the plaintiffs as a defense and had the burden of proving that assertion." It is argued that the instruction had no support in the evidence, there being no proof of negligence on the part of Donahue or Brown. The jury, however, might have been justified in believing from their own common knowledge and experience that the two workmen were careless about their own safety in entering a trench that was nine feet deep and only two feet wide. The unexplained cave-in provided support for that view. Hence we are of the opinion that the court was right in giving the instruction.
No error being shown, the judgment must be affirmed. | [
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Humphreys, J.
This is a suit by appellee, who is and was a real estate agent or broker, against appellant, brought by him in the second division of the circuit court of Union county to recover a commission in the sum of $1,000 for selling certain undivided interests in minerals under a certain 110 acre tract of land in Union county, Arkansas, owned by appellant. Appellee alleged that under the contract he was to receive as compensation 10 per cent, of the sales price; that he made a sale of an undivided one-fourth interest in said minerals to George W. James for a consideration of $8,250 as a result of the transaction, and the sale of an undivided one-half interest in the minerals under ten acres of said land to J. H. Alphin for $1,500, entitling him to $150, and that he did certain curative work on titles, entitling- him to $25, and prayed judgment against appellant and the Exchange Bank & Trust Co., garnishee, in the total sum of $1,000, and by amendment to the complaint alleged that he was a real estate broker duly licensed by the Arkansas Real Estate Commission at the time of the transaction.
Appellant filed an answer denying generally all the allegations in appellee’s complaint and pleaded by way of defense that appellee’s services were to be gratuitous, and that he was precluded from recovering any amount as commissions for effecting the sales by reason of the further fact that at the time of the transactions he had not obtained a broker’s license from the Arkansas Real Estate Commission to conduct a real estate business in Arkansas under the provisions of act 148 of the Acts of 1929 and act 142 of the Acts of 1931 amending the former act (now Pope’s Digest, §§ 12476-1248'5).
The cause proceeded to a trial and at the conclusion of the testimony appellant requested the court to instruct a verdict for her, but the court denied the request over appellant’s objection and exception, and submitted the cause to the jury upon the testimony and instructions given by him, resulting in a verdict and consequent judgment against appellant, from which is this' appeal.
For the purposes of this appeal it is only necessary to make a short statement of the facts. Appellee had been a real estate broker or agent in El Dorado, Arkansas, for a number of years, engaged in selling royalties, leases and lands for his clients. He had formerly resided in Council Bluffs, Iowa, and appellant had resided in Omaha, Nebraska. They were old friends. In 1930 appellee made a trip to Omaha for the purpose of blocking up some mineral acreage in the Schuler area near El Dorado and appellant rendered Mm very material assistance in procuring leases from people living in and around Ornaba and in fact procured a lease from appellant on ber 110 acre tract of land in Union county without consideration. Oil was not discovered until in March, 1937, at which time there was another oil boom in the Schuler field and a number of persons were wiring to appellant trying to purchase royalties and leases from her on her 110 acre tract so she wrote to appellee, who was her friend, calling his attention to the fact that she had rendered him material services back in 1936 in procuring leases and asked his advice regarding the sale of her royalties. Appellee answered her letter on March 24, 1937, offering her any assistance he could give her in return for the help she had given him in Omaha and urged her to come to Arkansas. Several letters and telegrams passed between them and appellee testified that she called him on long distance telephone and asked him to handle her property and that.he replied to her that he would do so for 10 per cent, of whatever the property might be sold for and that she agreed to do this. She denied that she ever agreed to pay him 10 per cent, over the tele: phone for effecting sales of her royalties or leases and there is nothing in any of the telegrams or letters which passed between them before she came to Arkansas showing that she did enter into any such contract.
She decided to go to El Dorado and arrived there April 2,1937, and was met at the train by appellee. The evidence is conflicting as to just what part appellee took in the sales of her property, but a sale was effected on April 3 between appellant and George W. James covering a one-fourth royalty interest in her entire 110 acres for the total sum of $8,250 the contract of sale being evidenced by a written contract of sale and purchase which provided for an escrow of the deed and money, examination of the title, etc. A part of the purchase money was paid by George W. James to appellant and the balance was evidenced by a cashier’s check which was deposited together with appellant’s deed in the Exchange 'Bank &• Trust Co., El Dorado, subject to approval of title. The title required some curative work, but was finally approved on May 6, 1937.
While appellant was in El Dorado, a sale was effected through the assistance of appellee to an undivided one-half interest in the minerals under ten acres of said land to J. H. Alphin. Alphin deposited $1,500 in the First National Bank of El Dorado and appellant deposited her deed. The deposits were made under an escrow agreement subject to the approval of title on April 5, 1937, in the First National Bank of El Dorado, but the title was finally approved on June 7, 1937, and $750 was accepted by appellant instead of $1,500 on account of a disagreement relative to the amount of minerals she conveyed to him.
According to the undisputed testimony appellee was not a licensed broker under the statutes referred to at the time he claims to have made a contract with appellant for the sale of her property nor at the time the sales were made and the escrow agreements relative thereto were made. On April 18,1937, differences arose between appellant and appellee and she wrote him a letter to the effect that on account of the differences which had arisen she had decided to discharge him as her agent. On April 23, 1937, he wrote to her that the deal was practically closed and his work was all done and demanded 10 per cent, of the amounts for which the minerals had been sold as his fee, amounting to $975 plus $25 for doing certain curative work relative to the titles to the property.
On April 28,1937, after appellee had been discharged appellee applied to the Arkansas Real Estate Commission for a broker’s license and dated his application back to April 1, 1937, and on April 28, 1937, he obtained a broker’s license No. 422 for the year 1937. Although appellant has raised a number of questions on this appeal for a reversal of the judgment obtained against her, her main contention is that the judgment should be reversed and the cause dismissed beoa'use at the time the sales were made appellee had no license from the Arkansas Real Estate Commission to conduct a real estate business and that the subsequent acquisition of a state license did not entitle him to recover a commission. Section 12476 of Pope’s Digest provides as follows:
“It shall be unlawful for any person, firm, partnership, co-partnership, association or corporation to act as a real estate broker or real estate salesman without first having- complied with every provision of this act and having secured a regular, valid license issued by the Arkansas Eeal Estate Commission, authorizing the performance of such acts.”
The last clause of § 12477 of Pope’s Digest provides as follows:
“No recovery may be had by any broker or salesman in any court in this state on a suit to collect a commission due him unless he is licensed under the provisions of this act and unless such fact is stated in his complaint.”
This court ruled in the case of Birnback v. Kirspell, 188 Ark. 792, 67 S. W. 2d 730, that a broker not having-made an application for a license before effecting a sale of land -was not entitled to recover a commission for making same.
Appellee argues that although he had not applied for a license and did not have a license on April 3 and 5 when the escrow agreements were entered into for the sale of said property the sale was not made until the escrow agreements were completed. This position is not sound because the escrow agreements related in no way to the commission which appellant was to pay appellee for making the sale. The appellee was not a party to the escrow agreements nor was it provided in them that he should not receive his commissions until the escrow agreements were completed. The escrow agreements simply provided that when appellant perfected the titles to the property she was entitled to receive her money and the purchasers entitled to receive their deed.' It is true that the escrow agreements provided that in case she did not perfect her title to the property the certified checks should be returned to the purchasers and the deeds returned to her. -But the contract to pay appellee 10 per cent, for making the sale, if such a contract did exist, was not dependent upon the perfection of her title to the property. Appellant contracted in the' escrow agreements to com ply with the requirements of the attorneys for the purchasers, but it did not provide that the. broker or appellee should perfect the titles before he was entitled to his commissions. It is true that appellee had obtained a license at the time the titles were finally approved under the escrow agreements and that the money and deeds were delivered on May 26, in the case of the James sale and on June 7, in the case of the Alphin sale, but it is also true that he had no license on April 3 and April 5, 1937, when the sales had been effected and the escrow agreements had been entered into between appellant and the purchasers.
Whatever the contract may have been, whether for 10 per cent, of the purchase price or whether for gratuitous return for services appellant had rendered appellee in 1936, we think the parties themselves construed the contract when appellee admits that he was discharged from any further obligation and entitled to his commissions when appellee discharged him on April 18, 1937. It further appears that appellee claimed his commissions and threatened to bring a suit for them before he obtained a license. In the case of Poston v. Hall, 97 Ark. 23, 132 S. W. 1001, this court said:
“Where a real estate broker produces a purchaser who is ready, willing and able to purchase the property upon the terms under which, the agent is authorized to negotiate the sale, and the owner refuses to convey, the agent is entitled to his commission.”
It was said in the case of Reeder v. Epps, 112 Ark. 566, 166 S. W. 747, (quoting headnote No. 1 and headnote No. 3) :
“In the absence of a special contract providing otherwise, an agent employed to sell or find a purchaser for land, earns his commission and is entitled to recover the same when he procures a purchaser ready, willing and able to buy upon the terms named, and the principal enters into a binding contract with the produced purchaser, or having an opportunity to do so declines to accept the purchaser.”
“When A. employed B. to sell land for him, an obligation is implied on A.’s part not only to furnish a good title, but a marketable one, and if A. fails to do so upon the production by B. of a purchaser ready, willing and able to buy the land, B. earns his commission, notwithstanding a defect in the title which prevented the sale.”
This court said in the case of Lasker-Morris Bank & Trust Co. v. Jones, 131 Ark. 576, 199 S. W. 900, that:
“The broker, having presented a proposed purchaser who is capable of entering into a contract of purchase, and willing to do so, has earned his commission when the vendor accepts him and enters into a valid contract with him for the sale of the land, even though the sale is never in fact consummated by reason of the failure of the proposed purchaser to perform his part of the contract.”
This couid also said in the case of Emerson v. E. A. Strout, Farm Agency, 161 Ark. 378, 256 S. W. 61, that:
“The import of the contract (brokerage contract) was to the effect that there should be a completed sale or exchange of the lands in order for appellees to earn their commission, but, even so, under the law, it was only necessary for the agent to produce a purchaser, ready, willing and able to comply with the contract of sale and purchase.”
This court said in the case of Busey v. Felsenthal, 178 Ark. 42, 9 S. W. 2d 775, (quoting syllabus), that:
“Brokers with whom a royalty interest Avas listed for sale could recover the commission agreed upon Avhero they procured a purchaser ready, nulling* and able to buy, but the owner subsequently refused to carry out the contract of sale, and breached it by selling to another.”
We think under these opinions as well as under the opinion rendered in the case of Birnbach v. Kirspel, 188 Ark. 792, 67 S. W. 2d 730, that the date of the sale to George "W. James Avas on the date of April 3, 1937, and that the sale of J. H. Alphin was on Apnil 5, 1937, when he presented the purchasers or procured the purchasers, according to his testimony, ready, Avilling and able to comply with the contract of sale and purchase. All that appellant had to do under the escroAv contracts Avas to comply Aidth reasonable requirements for perfecting her title in order to specifically enforce the contract against the purchasers, and likeivise the purchasers had a right to specifically enforce the contract against her when the title was perfected which perfection of the title was incumbent upon appellant under the escrow contract.
It being undisputed in the record that appellee had no license at the time he procured these purchasers who entered into an enforceable contract with appellant, that fact alone (the failure to have a license) prevents him from recovering a commission in this case. If he had had a license at the time he procured these purchasers he could have then sued and recovered his fee without reference to the escrow contracts which did not concern him.
The court should have instructed a verdict-under the undisputed facts in the case for appellant when requested to do so, and on acount of his failure to do so the judgment is reversed, and the cause is dismissed. | [
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Carleton Harris, Chief Justice.
On June 27, 1967, appellant, Plarold Kimble, was tried by the Circuit Court of Pulaski County (First Division) sitting as a jury, convicted of the crime of assault with intent to kill, and sentenced to five years in the penitentiary. Pie remained in the penitentiary until May 16, 1968, when the conviction was set aside by the court after a hearing under a Criminal Procedure Rule 1 petition. The court found that, at the original trial, no witnesses were called on appellant’s behalf, though Kimble had furnished his then attorney with the names of four or five persons, who appellant stated would testify to the effect that he was acting in self-defense. Appellant was again tried on June 12, 1968, by a jury, again found guilty, and the verdict fixed his punishment at nine years’ imprison ment in tlie penitentiary. From tlie judgment entered in accord with this verdict, Kimble brings this appeal. For reversal, five points are urged, as follows:
I. The Arkansas jury selection system and its application by the Commissioners in this instance deprived the defendant of a fair cross-section of the community to pass judgment on his life and liberty.
II. Appellant’s confession ivas taken in violation of his constitutional rights and should not have been admitted in evidence.
III. Admissible evidence on cm important issue was wrongfully excluded by the Court.
IV. The Trial Judge wrongfully expressed his opinion of defendant’s guilt in the presence of the jury.
Y. Appellant’s period of confinement should be reduced by the period of confinement under the former void conviction.
AVe proceed to a discussion of these contentions in tlie order listed.
I.
It is forcefully argued that the composition of the jury panel precluded Kimble from being tried by a jury of his peers. The argmnent is directed, not particularly to the fact that there was discrimination against members of the Negro race, but a discrimination occasioned by the selection of a particular group of persons, rather than a cross-section of the entire community. There were six Negroes on the jury panel, and actually four of these were selected as members of the twelve-person jury which convicted Kimble. As expressed by appellant, the jury commissioners picked the “blue ribbon” class of jurors, i.e., businessmen, school principles, teachers, etc., and completely ignored day laborers, me chanies, and other wage earners. In other words, it is the contention of appellant that he was deprived of a jury composed of his economic and social peers.
Appellant’s attack is made upon the system of selection óf jury panels, and he says that it is only natural that jury commissioners will select persons for jury-service composed- of their neighbors, friends, acquaintances, i.e., persons that they know, and the selection of businessmen for jury commissioners, necessarily means that-the same members of that classification only will be selected for jury service. It is pointed out that the three jury commissioners were respectively the owner of- an exclusive men’s store, an owner and operator of several florist shops in Little Bock, and the assistant controller of a dairy. Five of the six Negro personnel selected for jury service were school (high school or college) personnel, and the other was a self-employed sign painter. Appellant states:
“* * * The :Qollim.iggioners cannot really be blamed when the panel is unconstitutionally constituted, for it is inherent in the system that they will choose-their-neighbors, friends, ■ acquaintances, or persons who have reputations as substantial citizens in the community.”
The attack is actually on the Arkansas statutes providing for the selection of jurors, which appellant says violates his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The case of Thiel v. Southern Pacific Company, 328 U.S. 217, is cited by appellant, but we do not agree that this case affords support to appellant’s position. There, the. court pointed out that the American tradition of trial by jury necessarily contemplates an impartial jury, drawn from a cross-section of the community. The court, however, stated:- •
“ * * * This does not mean, of course, that every jury must contain representatives of.all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.”
The court reversed the judgment because wage earners were systematically and ordinarily excluded, but, in Thiel, the court made this pertinent finding:
“The undisputed evidence in this case demonstrates a failure to abide by the proper rules and principles of jury selection. Both the clerk of the court and the jury commissioner testified that they deliberately and intentionally excluded from the jury lists all persons who work for a daily wage.”
In the case before us, all jury commissioners testified ; it is true that one testified that he partly took into consideration whether the selection of certain jurors would cause a hardship, but the panel was picked by all three commissioners, and there is no evidence that the other two considered possible inconvenience to any particular group. It certainly cannot be said that the jury was made up of owners or heads of businesses for the record reflects that employees heavily predominated the composition of the panel; nor was there any evidence that prior jury panels had been limited to any particular class of persons. There is no showing, nor it is argued, that there was any systematic exclusion of any group, racial, economic, social or religious.
As far as the statutory method of selecting'jurors is concerned, this is the responsibility of the General Assembly, and not of this court. . The United States Supreme Court has never declared this method of selection to be violative of any constitutional requirement, and until that is done, it is our view that any change can only properly be consummated by legislative act.
II.
AVe do not agree that appellant’s confession was taken in violation of his constitutional rights. It is first mentioned that the Little Rock Municipal Court was in session in the same building in which Kimble was questioned by two Little Rock detectives on February 17, and it is argued that appellant should have been taken to the chambers of the Municipal Judge so that the prisoner’s rights could be properly protected. The fact that the court was in session at the time does not, in our view, strengthen appellant’s case, for certainly a judge, with a set docket of cases to be heard, would not have been expected to adjourn court, and proceed to chambers with the officers and Kimble. AVe have made it clear, on numerous occasions, that the failure to take an arrested person before a Magistrate does not vitiate his confession. In Paschal v. State, 243 Ark. 329 (1967), 420 S.W. 2d 73, we said:
“Counsel for the appellant, citing McNabb v. United States, 318 U.S. 332 (1943), insist that the confession was inadmissible because Paschal had not been taken before a magistrate for commitment, as the statute requires. Ark. Stat. Ann. § 43-601. The McNabb case, however, involved the interpretation of federal statutes that do not apply to the states. State v. Browning, 206 Ark. 791, 178 S.W. 2d 77 (1944). Under our statute the failure to take an arrested person before a magistrate does not vitiate a confession, because the statute is construed to be directory only. State v. Browning, supra; Moore v. State, 229 Ark. 335, 315 S.W. 2d 907 (1958).
The important consideration is whether Kimble was advised of his constitutional rights, and whether the procedure followed was in line with the United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436. Before this statement was introduced, the court went into chambers with counsel for the purpose of holding a hearing on the question of whether the statement was voluntarily made. Detective Bob Moore of the Little Rock Police Department testified that he first talked with Kimble about 8:30 A.M. on the morning after appellant’s arrest. 'The detective stated that he and officer Pete Evans advised Kimble that he liad the right to remain silent; the right to talk with an attorney before giving a statement; the right to have an attorney present when answering any questions; that any statement that he gave would be used in a court of law, and that, if he waived these rights, he had the right to stop the interrogation at any time. He then gave Kimble a waiver to read and sign, and testified that he did not make any promises or threats to induce appellant to make a statement. Kimble signed the waiver, and the officer said that appellant was very cooperative in telling about the shooting. Moore stated that he wrote the statement as Kimble related the facts. Appellant said that he started giving the statement when first brought to the jail, then went to sleep, and finished giving it the next morning. He said that he gave the statement, stopping at times to give Moore an opportunity to wnite what was said. He added that he initialed it in places at the request of the officer, but he really did not know whether the • officer wrote everything, word for word, that he said. He never did answer the question as to whether he read it over before signing it. The court held that the statement was voluntarily made, and the weight of the evidence appears to be to that effect. The officer testified emphatically that the Miranda warnings were given, that Kimble waived his right to an attorney at that time, and voluntarily made the statement. Appellant answered, “No,” to his attorney’s question relative to whether he had had an opportunity to confer with a lawyer, but, though represented at the second trial by able and competent counsel, he never did state that he was not offered an attorney, nor did he deny that he was told he had the right -to remain silent. He only said that he was confused and upset. There is no contention of threats, force, or duress. Actually, the statement does not conflict with appellant’s defense at the trial, since Kimble pleaded self-defense, and the court instructed the jury on self-defense. In his statement, Kimble said that he was accosted by Columbus Collins (victim of the shooting), who was quite belligerent, and that he shot Collins after the latter started toward him with his hand in his pocket. Kimble’s testimony at the trial, with reference to the shooting, reiterated that the shooting was in self-defense; that Collins came toward appellant with his hand in his pocket, and Kimble pulled out his pistol and shot Collins. In describing the shooting, the only difference was that on trial, Kimble stated that he fired the first shot in the air, and fired the second shot at Collins. Appellant said that he only fired twice. In his statement, he did not mention firing the first shot in the air, and said, “I think I shot three times.” .We hold that the statement was voluntarily made, after Kimble had been advised of his constitutional rights, heretofore enumerated.
III.
Collins was only struck by one bullet. Appellant says that the most important issue in the case was whether he had the intent to kill when pulling the trigger. He was asked the question by his attorney, “If you had wanted to, would you have had any difficulty in shooting him more than once?” The state objected to the question on the basis that it called for a conclusion on the part of the witness, and this objection was sustained.
Of course, the question did call for a conclusion, in-as much as Kimble was saying that any shots fired would have struck Collins, and this would seem problematical, since according to Kimble’s own testimony, Collins turned and fled down an alley after the second shot. However, we agree that appellant had the right to testify as to his intention when he shot Collins, but we find no prejudicial error in the court’s ruling. It appears that the point that he was trying to get over to the jury was that lie had bullets left in his pistol, and could have fired them had he wanted to. He had already testified that he did not aim the first shot at Collins, and had already testified that he did not want to kill his victim. From the record:
“I fired directly in the air to get him to stop running his hand in his pocket. I didn’t want to hurt him, and I didn’t want him to hurt me. ’ ’
Also, when asked if he had the gun in his pocket when the incident arose in the shine parlor, and if he “pulled” the gun, appellant answered:
“No, I didn’t. I didn’t want any trouble. I could have shot him then, but I tried to get away from him. I tried to withdraw from him so there wouldn’t be any trouble, and then he followed me outside. After he came up to the front, I could have, shot him then if I had wanted to. J could have shot him then when we came from the hack to the front but I withdrew from him again and tried to avoid all that, but he kept pressing and kept pressing, and then he ran his hand in his pocket, and I warned him not to put his hand in his pocket, and he kept on, and that is when I shot him, and Andrew Carey hollered to him that I had a gun, and told him to run * * V’
He said that “when he ran down the alley, I put my gun back in my pocket, and there was no more shots fired, just those two shots.”
After the court ruled the question improper, Kimble testified in chambers that he had four more bullets in his pistol, but ho didn’t fire them, because he “was just trying to stop him from doing something to me, and that is just why I shot him one time. ’ ’ After Kimble returned to the witness stand, the record reveals the following:
“Q. (Mr. Carroll, continuing) You testified you fired two shots, and the first one did not strike Mr. Collins, but the second one did. After you fired those two shots, did you fire any additional shots?
A. No, sir, not after I fired those two shots. After I fired those two shots, I put my gun back in my pocket.
Q. Did you have any more bullets left in your revolver after those two shots?
A. Yes, sir, I had four.
Q. And you did not fire them?
A. No, sir.”
It is difficult to see, from these quoted portions of the transcript, how appellant could have conveyed more clearly to the jury that he had no desire to kill Collins ; that he was only trying to scare his adversary from making an attack on him (appellant), and that he had plenty of ammunition in his pistol to continue firing if he desired to do so.
IV.
During the closing argument to the jury, counsel for appellant asked the jury to take into consideration the fact that Kimble had already served four hundred and seventy-nine days in jail, and in the penitentiary. The court instructed the jury that it could not take this into consideration, stating:
“The man was tried in this Court and this Court thought he was guilty and sentenced him to the Penitentiary. He later was brought in under Rule I, a new rule of the Supreme Court, because of the fact that certain witnesses weren’t called in his behalf and, for that reason, I set the judgment aside so he could have the opportunity to get these witnesses in that he wanted to testify, and, also, to try it before a jury if he liked.”
Appellant argues that the court’s statement that it “thought he was guilty” (at the first trial) was a prejudicial comment made in the presence of the jury, and calls for a reversal. We do not discuss this asserted error for the reason that no motion for a mistrial was made; nor, for that matter, was any objection made or exception saved. See Randall v. State, 239 Ark. 312, 389 S.W. 2d 229.
Y.
The record reflects that Kimble was in jail one hundred and twenty-five days before the first trial. After the first conviction was set aside, he was returned from the penitentiary, and placed in the county jail until making bond twenty-six days later. He also apparently served a total of three hundred and thirty days in the penitentiary between the time of the first conviction and the order setting the same aside.
Appellant argues that he should have been given credit on the present sentence for this amount of time. As to the days served in jail, we do not agree, for we have no statute permitting this to be done. It is not shown why appellant did not make bond before the first trial; certainly, the alleged offense was bailable, and, as mentioned, bond was made subsequent to the prisoner’s being returned to the jail after the judgment was vacated. As to the time served in the penitentiary, wre thiuk appellant is due to have deducted the number of days served after the first conviction. Ark. Stat. Ann. §§ 43-2726 through 43-2728 (Repl. 1964) deals with the confinement of a prisoner in the penitentiary where an appeal is taken, and the judgment reversed by the Supreme Court. The first two sections set out that upon a reversal, if a new'' trial is ordered, the defendant shall be removed from the penitentiary back to the county jail. Ark. Stat. Ann. § 43-2728 provides that, if a defendant, upon a new trial, “is again convicted, the period of his former confinement in the penitentiary shall be deducted by the court from the period of confinement fixed in the last verdict of conviction.”
The state argues that these statutes have no application to a situation where the trial court itself sets aside the first conviction, and appellant is, accordingly, not entitled to this relief. The state is technically correct in that the statutes refer to a reversal by the Supreme Court, but we do not think the General Assembly particularly intended a distinction between convictions reversed by the Supreme Court, and convictions vacated by the Circuit Court. Bather, the only logical conclusion is that the General Assembly intended for a convicted person who obtained a new trial, and was again convicted, to receive credit for the amount of time already served for the same offense.
The record reveals that Kimble received a fair trial, and was found guilty by the jury. We find no reversible error, and the cause is remanded to the Pulaski County Circuit Court, First Division, with instructions to amend the judgment, crediting the second sentence of appellant witli the amount of time served for this offense in the state penitentiary between the first and second convictions.
It is so ordered.
Brown and Fogleman, JJ., dissent.
John A. Fogleman, Justice.
I agree with the majority opinion in every particular except one. That has to do with appellant’s Point III. I do not agree that excluding the testimony of appellant with reference to his intention on the occasion of the alleged offense was not prejudicial. In order that the matter be put in proper perspective, I deem it necessary to refer to a portion of the record not mentioned in the majority opinion.
After the court’s ruling on the original question propounded by appellant’s attorney, he asked to be permitted to make a record on his proffer of proof in chambers. Thereupon, the judge, the defendant, and counsel for the state and defendant’s attorney retired to chambers, whore the following occurred:
Q. (by Mr. Carroll) Mr. Kimball, if you had wanted lo shoot Columbus Collins more than once, was there anything that would have prevented you from doing so?
A. No, sir, there wasn’t.
Q. Why didn’t you shoot him more than once?
MB. ROBINSON:
Objection. That calls for a conclusion.
the court:
You can move to strike it after he is through testifying.
A. I didn’t shoot no more than just the one time, because, in the first place, I didn’t want to have any quarrel with him. I didn’t want to shoot him. In the first place, I didn’t want to shoot him, and I was just trying to stop him from doing something to me, and that is just why I shot him one time.
Q. Now, after you shot this first shot, that did not strike him, and did he keep coming'?
A. I fired the first shot in the air. I shot a warning shot, and he made a couple more steps, and. I hollered at him not to open up on me, and then I shot him.
Q. Did he have his hands in his pocket?
A. He had his hand in his pocket at that time.
Q. Did you have any more bullets in your gun after you shot him?
A. Yes, sir, four more.
ME. CARROLL:
Your Honor, I want to offer that evidence to the jury.
MR. ROBINSON:
It is repetitive and conelusionary. It is not proper redirect anyway. This has nothing to do with what I went into on cross examination. I don’t think it is proper.
the court:
I don’t think it is. The other witness testified four or five shots were fired, and this man said he shot some in the air.
MR. CARROLL:
One, Your Honor.
the court:
One shot in the air, and the other witness said he heard three or four while running away from him. It is up to the jury to decide whether or not he wanted to kill him. The jury has to conclude that from the evidence before them, not by what he says he had in mind at the time.
MR. CARROLL:
He knows better than anybody else.
the court:
That’s right, but it is up to the jury to decide from the evidence.
MR. CARROLL:
Note my exceptions to the ruling of the Court. Now, specifically, I want to ask him back on the stand if there were any bullets left in his gun.
the court:
You may do that. That is admissible and you may do that.
(THEREUPON, the Court, the defendant and counsel for the State and the defendant returned to the courtroom and the following proceedings occurred:)
The point that appellant was trying to get over to the jury was not that he had bullets left in his pistol; rather, it was that he had no intention to kill Collins, the critical point in the trial. Thus by refusing the appellant’s offer of proof, he was deprived of his right to state categorically why he did not shoot more than once. It can well be imagined that an aggressive and alert prosecuting attorney might make a vigorous argu meut that the jury should draw the inference from the testimony that appellant did intend to kill Collins because, even though appellant elected to take the witness stand, he never stated his own intentions or state of mind.
I think that prejudice is clearly demonstrated and is not removed by reason of the fact that the appellant may have stated that he did not want to hurt Collins when he fired the shot into the air. Nor is it sufficient that he stated that lie could have shot Collins, if he had wanted to, after Collins came up to the front or when he and Collins came from the back to the front. Nor is it sufficient that appellant testified that he put his gun back in his pocket and fired no more shots when Collins ran down the alley. The proffered testimony had to do with direct statements of his intentions at the time that he fired the shot which struck Collins and thereafter. This was the real issue in the ease.
I think that the proper rule to be applied by us is that it is prejudicial error to exclude direct testimony of an accused as to his intent, motive, reason or beliefs whenever that intention, motive, reason or belief is an essential element of the crime or is an issue in the case —particularly when the only other .evidence on that element relates to acts from which the intention of the accused can only be inferred. See Cummins v. United States, 232 F. 844 (8th Cir. 1916); 22A C.J.S. Criminal Law § 647; 29 Am. Jur. 2d 413, Evidence 364; Miller v. State, 230 Ark. 352, 322 S.W. 2d 685.
While the authorities cited above have not been determined on the basis of prejudice, or lack thereof, there is a clear inference in Cummins v. United States, supra, that the exclusion of a question calling for a direct statement of intent by the defendant is prejudicial unless questions of substantially the same character and of the same full import had been answered. It seems to me that the great weight of authority would support that position.
In People v. Levan, 295 N.Y. 26, 64 N.E. 2d 341 (1945), tlie state took the position that there was harmless error in excluding a direct statement by a defendant in a murder case.as to his intention because the jury might have inferred from evidence already in the ease that the defendant’s intent was not to commit a robbery, in the course of which the victim was killed. There the court held that when a defendant would otherwise have to depend upon inferences from the evidence to establish his lack of the essential intention, it was not harmless error to exclude his direct denial of the requisite intent.
In Cain v. State, 112 Ga. App. 646, 145 S.E. 2d 773 (1965), the appellant was charged with larceny of an automobile. The evideuce showed that the defendant had taken the vehicle, driven it from Carrollton to Atlanta and back. Even though he had testified that he was returning the car to the place from which he had stolen it when the police apprehended him, refusal to permit him to state whether it had been his intention not to return it and to state what lie would have done with the car if he had not been apprehended was held reversible error. The court held the error prejudicial in spite of the fact that it stated that the evidence strongly indicated that he intended, to return the automobile to the place from which it had been taken and that there was no intent permanently to deprive the owner of it.
In Smith v. State, 38 Okla. Cr. 416, 262 P. 507 (1928), it was said:
“It is well established that a defendant charged with a crime which has as one of its ingredients an unlawful intent may explain his intent and mental purpose, and may deny the specific intent required to constitute the offense. Wigmore § 581, says, with the exception of Alabama, the rule is absolute in the United States. See Snow v. State, 3 Okl. Cr. 291, 105 P. 572 [575]; Cosby v. State, [30 Okl. Cr. 294,] 236 P. 51; 8 R.C.L. § 174, p. 181, authorities cited. ’’
In Haigler v. United States, 172 P. 2d 986 (10th Cir. 1949), reversible error was found in the sustaining of objections to testimony by one charged with violation of the income tax laws concerning his understanding of the law applicable to his income tax liability on the grounds that his intent would be judged by his acts and not by what he understood to he their consequences. This result was reached in spite of the-fact that the appellant was permitted, indirectly, to adduce the theory of his defense by stating what he had told the investigators in explanation of his acts.
I would reverse and remand this case for a new trial.
Brown, J., joins in this dissent.
Ark. Stat. Ann. § 39-201, § 39-205, § 39-208, and 5 39-215 (Repl. 1962).
Collins testified in an unusual manner for a prosecuting witness, in that he admitted having his hand in his pocket: “I have my hand in my pocket all the time. I’ve got in trouble in the Army about that. I walk down the road with my hands in my pocket, or with one hand in my pocket. I do that all the time, and I have got in trouble about that. * * * I have change in my pocket and I just play with it, just running the change through my fingers. * * * When I went outside I had one hand in my pocket. I always keep one hand in my pocket, I always keep it that way.”
All italicized statements in this paragraph denote our emphasis. | [
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Smith, J.
Ernest Wallace, Denver Herrington, and appellant, DeWitt Morris, were charged .jointly with the crime of grand larceny, alleged to have been committed by stealing two heifers, the property of Bill Mann. All were convicted, Morris has appealed.
For the reversal of the judgment it is insisted that there was no testimony connecting appellant with the commission of the crime except that of Ernest Wallace, an admitted accomplice, and a confession which had been improperly extorted from appellant himself and which was inadmissible for that reason.
The defendants are all young men, in their early twenties, and it is undisputed that, together, they loaded into appellant’s truck the heifers belonging to Mann. That the heifers were being stolen appears certain. Appellant’s defense was that the heifers were loaded into his truck under an agreement with his co-defendants to purchase them, and that he did not suspect they were being stolen. Appellant was examined and cross-examined at great length upon this feature of the case, and his stpry was one which evidently carried no conviction or raised any reasonable doubt as to its truth. The heifers were placed in a barn one night and loaded into the truck the next night. Appellant testified that he agreed to pay 3% cents per pound for the heifers, and an estimate of their weight made the purchase price from $10 to $10.50. Appellant testified that he paid no part of the purchase money. His associates testified that he paid $5 the night the heifers were placed in the truck, and $3 the next day. The heifers were to be carried to Springfield, Missouri, for sale. As the truck was being driven from the barn, one of the heifers escaped after the rope with which it had been tied broke. It was later found with the rope around its horns. The other heifer was unloaded and tied to a tree. Appellant testified that he released this heifer the next day. It has never been seen since.
Barnett, the sheriff of the county, testified that defendant, Wallace, confessed the crime, and told the part each defendant played in its commission, and that appellant, Morris, voluntarily made a statement, in which he admitted having made a payment of $5 and $3, as stated by Wallace. ■
Appellant admitted making statements in the office of the sheriff of Boone county after his arrest, and later in the same place to the prosecuting attorney, the effect of which was to admit his guilt; but he testified that he made these statements after being whipped in the sheriff’s office by Bill Murphy, a man known to him. The sheriff of Boone county denied that appellant had been whipped in his office, or at any other place, while a prisoner in that county. ■ Aside from the positive testimony of the sheriff as to whether appellant had been whipped, and thus induced to confess, the extended cross-examination of appellant upon this question makes it very doubtful whether he had been whipped.
The court gave over appellant’s objection and exception an instruction numbered 4 reading as follows: “You are further instructed that the alleged confessions of the defendants in order to be competent must have been freely and voluntarily made, without duress or promise of leniency; and the jury Should consider all the circumstances surrounding the defendants at the time the alleged confessions were made and give to said confessions such weight as you think proper under the circumstances. ’ ’
The court, also, gave at the request of appellant instructions numbered 2 and 3 on the subject of the alleged confession reading as follows:
“No. 2. You are instructed that before you can consider a confession of a defendant against him in the trial of the cases wherein he is being tried, you must find that the confession was made without fear, threats, intimidation, or promise of reward or leniency, and that the statements made in such confession were true. If you find that any confession relied upon by the state was not true, or that it was obtained by threats, fear, intimidation, of hope of leniency or reward, then you will he authorized to wholly disregard such confession and not consider it in arriving at your verdict; or if you have a reasonable doubt of the truth of such confession, or that it was not made freely and voluntarily, you should give the defendant the benefit of such doubt in the consideration thereof.
“No. 3. I instruct you that in this case you can only consider under any circumstances, any confession that might have been made after the crime, if any, was committed, and made in the absence of other defendants, only against the particular defendant whom you may find that made such voluntary confession, and that you cannot consider such confession against any other defendant in the case who was not present.when the same was made.”
These instructions correctly and fully declared the law as to the conditions under which alleged confessions are admissible and as to the manner in which they should be weighed and considered.
Appellant’s own confession, if voluntarily made, was ample corroboration of the testimony of his alleged accomplice, and the jury was fully and properly instructed as to the corroboration of the testimony of an accomplice necessary and sufficient to sustain a conviction.
There appears to be no error in the record, and the corroboration of the alleged accomplice meets the requirements of the law.
The judgment must, therefore, he affirmed, and it is so ordered. | [
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John A. Fogleman, Justice.
Hartford Accident & Indemnity Company appeals from a judgment in favor of Fred H. Warren under the uninsured motorists clause of a policy issued to him by Hartford. The principal point urged by appellant for reversal is its contention that a judgment against the uninsured motorist was a condition precedent to this action.
The policy in question contained clauses identical with those in the policy involved in MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W. 2d 252. In that case we held that when consent of the company to an action against the uninsured motorist was required to make a judgment therein conclusive on the company, the insured had the option to sue either his insurance company or the uninsured motorist or both. We deem this decision to be controlling here. This does not in any way prevent the insurance company from cross complaining against the uninsured motorist in an action brought against it, nor does it prevent a separate action by the insurance company against the uninsured motorist after a judgment in favor of its insured has been paid by it.
Appellant urges that the policy in this case does not contain the “consent” clause which influenced our decision in the Bradshaw case. In this respect, appellant is in error as the policy exhibited does contain this clause. The fact that reliance was placed on the lack of consent in the Bradshaw case but not in this case makes no difference in the application of the principle involved.
Appellant also contends that the judgment for $12,-000 is excessive and reflects the passion and prejudice of the jury.
There was evidence showing that appellee was earning $90 per week at the time of his injury. Warren’s testimony was in substance:
During the rush season he was also paid for overtime. Although he had an arthritic condition, it had never caused him to miss any work prior to the collision in which he was injured. After the automobile he was driving was struck from the rear by the uninsured motorist, Warren went to the emergency room of the hospital in West Memphis with soreness in the stomach area. The next morning he returned for a more thorough examination by Dr. Peeples. At that time his neck was beginning to get sore and his back stiff. He was hurt from the back of his neck down through his legs. He missed one or two days of work at this time. Because of his condition, his foreman got others to do some of the work he was normally expected to do. The foreman actually did some of it himself. Warren was given light work and was assigned the duty of instructing newly employed persons. About two months after the collision Dr. Peeples prescribed traction and placed Warren in the hospital for ten days. During this stay in the hospital, Warren only remained in traction about three hours. He was removed from traction by the doctor because of the severe pain it was causing. He lias obtained no relief from his condition and cannot lie flat on his back even long enough for the taking of x-rays without severe pain because of these injuries. lie cannot lift his right arm above his head because “it couldn’t be any worse if one of these doctors was tearing it off.” He complained of a catch in this arm at any time he at tempted to reach behind him. He also said that his left arm was involved.
Although Warren is now totally disabled because of tuberculosis, he claims to have lost approximately three weeks from work during the five months following the collision because of his injuries.
Hr. A. H. Crenshaw, an orthopedic surgeon of Memphis, Tennessee, first saw Warren on a reference by Warren’s West Memphis physician. This was about seven weeks after his injury. Dr. Crenshaw’s diagnosis was sprain of the neck and low back superimposed upon preexisting osteoarthritis. He prescribed mild analgesics, application of wet hot packs, continuation of regular work, and staying in touch with Dr. Peeples. He next saw Warren about one year later when he found that the patient had reached maximum improvement. He exjDressed the opinion that appellant had a permanent partial disability to the body as a whole of about 20 percent, with one-half resulting from the preexisting condition and the other half from the collision. An examination about ten months later revealed no changes. Dr. Crenshaw expressed the opinion that Warren would not have suffered any disability from the collision in the absence of the preexisting arthritic condition and that this condition was aggravated by the collision sufficiently to cause the onset of his discomfort. While Dr. Crenshaw admitted that his evaluation of the disability resulting from the collision was based almost entirely on the subjective symptoms, he also said that it was based in part on his experience in treatment of numerous cases of this type. He expressed the opinion that appellant was not a malingerer.
In addition there was testimony that Warren discontinued his hunting and fishing and other outdoor activities after his injury. His wife testified that he had often come in from work and gone to bed without eating because of the pain he was suffering. She said that he avoided driving the automobile because of his inability to turn his head. After the collision he became very irritable with members of his family.
It was stipulated that appellee had an average future lifetime expectancy of 19 years.
We have no means for accurate measurement of pain and suffering. Nor do we have any means of determining the exact impact of a 10 percent disability upon the future earnings or earning capacity of one whose livelihood is earned through physical activities. In view of the evidences of pain exhibited by Warren, his hospitalization and his disability, we are unable to say that the judgment for $12,000 evidences passion or prejudice on the part of the jury or that it shocks the conscience of the court. Consequently, we cannot reverse the judgment on this basis.
The judgment is affirmed. | [
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Holt, J.
Appellees, Letha Mae Williams and J. J. Williams, her husband, brought this action in the Nevada chancery court against Verna 0. Bussell and Arthur, Ozell, Dorothy and Herbert Btissell, as the widow and heirs at law of Elmore W. Bussell, deceased. Elmore W. Bussell was the brother of appellee, Letha Mae Williams.
The complaint alleged “That plaintiffs on or about April 1, 1934, entered' into an oral partnership contract with E. W. Bussell, deceased, by the terms of which plaintiffs agreed to move from Chicago to Nevada county and agreed to take charge of the mercantile business owned by the said Bussell at Falcon, Arkansas, run the store, keep the books, look after the details connected with the cotton ginning business of the said E. W. Bussell, and also the details and accounts of the farms owned and operated by the said Bussell, so as to permit the said Bussell to devote his time to the buying, selling and dealing in real estate, timber and mineral rights in southwest Arkansas, and the plaintiffs under said contract were to receive one-half of the profits and bear one-half of the losses accruing from said store and arising from trading and speculating in real estate, timber and mineral rights; but were to receive no interest in the profits of running the gin or the proceeds of the farms at that time owned and operated by the said Bussell. ’ ’
That appellees moved to Falcon on April 1, 1934, and proceeded to comply with the partnership agreement; that the title to all real estate, timber and mineral interests acquired by Elmore Bussell for the benefit of the firm was taken in his name; that as the result of said understanding and contract plaintiffs and the said E. W. Bussell carried out their joint enterprise of running the store, buying and selling real estate, timber and mineral interests and dividing the profits, during the remaining part of 1934 and all of 1935 and 1936 and until the 19th day'of August, 1937, when the said E. W. Russell was injured in an automobile accident- from which he died on September 7, 1937; that all of the debts of said partnership have been paid. That said partnership acquired lands and mineral interests specifically described in the' complaint, but referred to in the briefs as the Fletcher and Warren lands, the Nabors lease and the Peasley place. Interest in these properties formed the basis of plaintiffs’ (appellees’) suit. Plaintiffs sought to recover one-half interest in these properties in accordance with the partnership agreement.
The defendants (appellants here) denied every material allegation in the complaint, specifically denied the partnership agreement and further alleged that if the partnership agreement existed it was oral and within the statute of frauds.
The material facts in this case are substantially as follows: Appellee, Letha Mae Williams, is the sister of Elmore Russell, who died September 7, 1937. In 1933 Letha Mae Williams was living in Chicago, Illinois, with her husband, J. J. Williams. At that time she was employed in a bank and her husband was working in a garage. Her brother, Elmore Russell, induced her and her husband to move to Falcon, Arkansas.
Mrs. -Sherron testified that Elmore Russell told her of the partnership they had formed; that he had helped Mr. Williams get work on the highway and that his sister, with the help of his son’s wife, was taking care of the store and that let him out where he could trade, -buy timber or oil leases or anything he wanted to and that they had a fund that.this all went through, what he made from the store and what he made from his trades being put into this fund.
J. W. Russell testified that Elmore told him at the time he (J. W. Russell) was writing to appellees that if they would come down to Falcon he would share the profits he made from his trading with them, that Elmore told him to tell them this in his letter to them.
Mrs. C. Gr. Moody testified: “Well, he (Elmore) made mention every time he would bring it np about their partnership and what the future held for them and how much better they were doing due to the fact that they did have the partnership business and he kept apologizing for taking them away from ns. He said everything including Mr. Williams’ outside earnings went into the business.”
J. L. Bussell testified that Elmore told him that he had a partnership with appellees in which they shared equally.
Mrs. Catherine Williams testified: “Iassisted Mrs. Williams (appellee) to open a set of books. She set np an account on the first page of the cash journal purporting to cover the first ten months of the business and this statement was signed by Elmore Bussell and Jas. J. Williams.” That Mrs. Williams and Elmore Bussell told her about the partnership as a basis to work from. “Q. Do you know' of your own knowledge that what Jim Williams made on the outside went into the joint account? A. Yes, sir. Q. What did Elmore Bussell tell yon he was going to do ? A. He was trading on the outside. Q. What was to go with any profits, any money or lands or minerals that he acquired? A. It went into the partnership. It was a partnership business.” That the car was used by Elmore Bussell on the outside, and the partnership account was paying for it. Williams and wife put into the business something over $400.
Appellant, Arthur Bussell, son of E. W. Bussell, deceased, and administrator of his estate, testified: “Q. Did he ever say anything to you about his relationship with them? A. Well, the store and the Warren royalty. Q. Well, what about the store, A. I understood they had a half interest in it. Q. What did he say about their interest, if any, in any real estate that he owned? A. I never did know anything about that. Q. Did you ever hear your father say that he intended to give them any interest in any royalties or any lands or interests that he owned? A. Yes, the Warren royalty and that place that was traded for that. Q. The Fletcher place ? A. Yes, sir, the Fletcher place. Q. What did he say? A. He just said he meant to give them a cut on that. That is what he told me. Q. Did you ever bear liim say anything about giving them an interest in the Peasley place, or in the Peasley lease? A. I beard him say he was going to give them a cut in the lease.”
Letha Mae Williams testified: “Before leaving Chicago to come to Falcon my husband and I each had steady employment. My brother, Elmore Russell, was very optimistic over the possibilities at Falcon. His letter was very much in detail about the possibilities down there. My husband and I finally decided to go to Falcon rather than to San Antonio because living expenses would be cheaper, and then the enthusiasm and belief that Elmore had in the oil possibilities and the tests that had been made, and the faith he had in it convinced us there was perhaps quicker success there than in San Antonio. After Jim and I came to Falcon and got started, Elmore wasn’t around the store any to speak of. He began to trade on the outside, as he had hoped to do. “Q. Now, was Elmore pleased with that relation down there, Mrs. Williams? A. He told me he was. . . . Q. Mrs. Williams, to what extent was Elmore familiar with every item on this joint account? A. He turned every item over to me, either gave the charge or the deposits he made or gave me the checks to go and deposit. Q. Was he thoroughly familiar with every item in this joint account? A. Every one of them. Q. As a matter of fact, did you not get practically all the information that went into the joint account from him? A. "It was his outside information and earning together. The $600 debit for the Peasley land was run through the joint account because it was paid through the joint account. This $600 was half of the $1,200 balance due on the purchase money after the timber was sold. It was necessary for Elmore Russell and Mr. Speer to have a settlement after the lease was sold to the Texas Company for $1,980 because the partnership was entitled to one-lialf of the profit. I am familiar with the Fletcher and Warren transaction. The profits from the Fletcher trade went into the joint account.”
Mrs. E. W. Russell, widow of E. W. Russell, testified: ‘ ‘ Q. Mrs. Russell, I want you to tell the court what you know about any partnership agreement that your husband bad with. Mr. and Mrs. Williams. A. Well, I don’t know of any only the store. Q. Yon do know they went into the store on a fifty-fifty basis? A . Yes, sir. Q. Did Mr. Russell ever tell you that they had a partnership interest in any lands that he acquired? A. No. Q. Did Mr. Russell at any time indicate that he intended to give them an interest in certain pieces of royalty? A. Yes, sir. Q. What did he say about that? A. He said he was going to give them an interest in the Warren royalty and in the Fletcher royalty and an interest in the Peasley lease.”
In addition to all this, on the second page of the joint account book appears the following entries: June 24, E.W.R. % Peasley land, $600; June 24, E.W.R. % Peasley oil lease, $990; June 24, E.W.R. % Exp. and taxes due J.E.'S. (meaning J. E. Speer) $25.58. The record reflects that the Peasley land cost $4,000. According to the testimony of Mrs. Williams, the timber cut off the land paid all of the purchase price but $1,200. The land was bought by J. E. Speer and E. W. Russell, each to have a one-half interest, and the $600, one-half of the balance, $1,200, due by E. W. Russell was paid by the partnership and was the $600 entry above referred to. Then a lease was sold for $1,980 and the $990 entry above was one-half of. this lease money. The other entry, $25.58, “expense and taxes,” was for one-half the taxes and expenses, the other half being paid by J. E. Speer.
On this state of the record, the trial court found that the plaintiffs (appellees here) about April 1, 1934, entered into a partnership contract with Elmore Russell, deceased; that all debts of the partnership had been paid and as a result of the joint efforts of plaintiffs and El-more Russell, said partnership acquired as profits of the partnership the property in question here. From this decree comes this appeal.
Appellants earnestly insist, (1) that even if the oral contract of partnership was made as alleged, it was within the statute of fraud (§ 6059, Pope’s Digest) and void in so far as it related to an undivided interest in the land and mineral rights sued for; and (2) that there is no written evidence and no 'competent oral testimony that the alleged partnership was ever formed. We can not agree with appellants on either of these contentions. We think that the findings of the chancellor that an oral partnership agreement was made and entered into, as alleged, is not against the preponderance of the evidence. We think this oral evidence in connection with the book account entries, signed by the parties, as this record reflects, amply support appellees ’ contention that a partnership agreement was entered into.
We are also of the opinion that the statute of frauds does not apply in this case. We think the preponderance of the testimony is to the effect that a partnership was formed by the parties'for the purpose of buying and selling land, leases and royalties before any of the properly in question was purchased, and that they were buying for speculation only and were not buying lands or leases to keep but for the purpose of selling them at a profit.
This court in Cain v. Mitchell, 179 Ark. 556, 17 S. W. 2d 282, said: “Real estate purchased for partnership purposes, paid for with partnership funds, and held and used as partnership property, will be treated as personalty for the purpose of the partnership, and as partnership property, regardless of the manner or by what agency it is bought and in whose name the title is held. The holder of the legal title will be considered a trustee for the partnership.”
The rule of law governing cases of this character is well stated in Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 553, wherein the court said: “Most of the conflict in the authorities has arisen in controversies about the title to the real estate after the dissolution of the partnership or the death of one of the partners. 'But suppose two persons, by parol agreement, enter into a partnership to speculate in lands, how do they come in conflict with the statute of frauds? No estate or interest in land has been granted, assigned or declared. When the agreement is made no lands are owned by the firm, and neither party attempts to convey or assign any to the other. The contract is a valid one, and in pursuance of this agreement they go on and buy, improve and sell lands.. While they are doing this, do they not act as partners and bear a partnership relation to each other?
“Within the meaning of the statute in such case neither conveys or assigns any land to the other, and hence there is no conflict with the statute. The statute is not so broad as to prevent proof by parol of an interest in lands; it is simply aimed at the creation or conveyance of an estate in lands without a writing. If there was a parol agreement in this case before the written one, it was just like the one embodied in the writing, io-wit, a partnership to purchase, lease and take refusals of land and then sell, lease or work them for the joint benefit of the parties. This is not a controversy about the title to any of the lands taken or owned by the partners, but it simply relates to the conduct of the defendants while they were acting as partners; and in such a case the statute of frauds certainly can present no obstacle to relief.”
Again in Thompson v. McKee, 43 Okla. 243, 142 Pac. 755 L. R. A. 1915A, 521, we find in the syllabus: “An oral partnership agreement to share in the profits and losses arising from the purchase and sale of real estate is not within the statute of frauds; and the existence of such partnership, and the interest of the members of the firm therein, may be established by parol evidence.’ ’ This court in Beebe v. Olentine, 97 Ark. 390, 134 S. W. 936, (quoting syllabus) held:- “A verbal agreement between two persons whereby they agree to buy certain lands jointly and to divide the profits from a resale thereof is not within the statute of frauds. ’ ’
We have carefully examined the case of O’Bryan v. Zuber, 168 Ark. 613, 271 S. W. 347, cited and relied upon by appellants; however, we are of the opinion that it does not control here.
On the whole case we conclude that the decree of the chancellor was correct, and accordingly it is affirmed. | [
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John A. Fogleman, Justice.
This is the third appeal involving these parties to reach this court in litigation ensuing after the fracture of a 21-year marriage. See 243 Ark. 113, 419 S.W. 2d 311 and 244 Ark. 483, 426 S.W. 2d 789. This appeal and cross-appeal come from a decree of the chancery court entered July 25, 1968, after a hearing on motions of the respective parties relating to alimony and child support.
I)r. Riegler, the appellant, first filed a petition for a reduction of child support and alimony. He also sought relief from the payment of child support during visitation periods when he would have custody of the children of the marriage. Mrs. Riegler, the appellee, filed a motion alleging that appellant was in arrears in the payment of alimony and child support pursuant to the court’s earlier decree. She asked that appellant he punished for contempt of court. Appellant then filed an amendment to his petition alleging that appellee’s circumstances had so materially changed that the court should abolish the alimony allowed her. The original decree of divorce affirmed by this court provided that Mrs. Riegler be paid $250 per month as alimony and $550 per month as maintenance for the three minor children whose custody had been awarded her. This decree specifically provided for automatic increases of $100 in both alimony and child support “when the jointly owned residence ... is sold and possession thereof surrendered by plaintiff.” The decree provided that until this property was sold, Mrs. Riegler should have exclusive possession of the house and furnishings. Upon consummation of the sale the net proceeds were to be divided equally between the parties. This decree also provided for a commissioner’s sale of the property in the event it was not sold at a price mutually acceptable to the parties by January 1, 1967. Dr. Riegler was inquired to pay the monthly payments on the indebtedness against the property.
The chancellor decreed, after hearing the respective motions, that appellee have judgment against appellant for $600 in arrearages in alimony and $150 for attorney’s fees. He also ordered that appellant pay $450 per month for child support of the two children who were still minor and $350 per month as alimony.
Appellant contends that there was error in this decree in the court’s refusal to reduce the alimony and child support and in the increase of alimony and child support. He also asserts that the chancellor abused his discretion in awarding attorney’s fees.
Mrs. Riegler asserts that she was entitled to judgment for $1,484.88 for arrearages and that the allowance of child support and attorney’s fees were both inadequate.
Rebecca Riegler, one of the three minor daughters, reached her majority on January 23, 1968. The other two are 13 and 11 years of age. Rebecca had lived with her father for about a year at the time of the hearing and is now living with him and his present wife, whom lie married October 18, 1967. Appellee did not object to this daughter living with her father and has paid none of this daughter’s living expenses. In spite of this, Dr. Riegler continued to pay what he considered to be the full amount of child support.
Three of appellant’s present wife’s children, the oldest of whom is 22, are living with him and he claims to be supporting them. He professes not to know the extent of his present wife’s property or whether her children have any separate property. Dr. Riegler purchased the home in which he is now living on March 1, 1968.
Appellant claims that appellee has inherited a substantial amount of money. The value of this inheritance from an aunt who died August 8, 1963, is no more accurately shown than in the original appeal in this case. Appellant contends that it amounted to $113,220.68. Appellee denies that the total amounted to as much as $100,000. She states that the total consisted of $61,-524.83 plus certain stocks, the value of which she professed not to know.
The parties reached an agreement under which appellant paid appellee $37,000 in settlement of all of her claims under previous decrees of the court, exclusive of alimony and child support. As a part of this settlement appellee conveyed her equity in the residence by deed dated January 11, 1968. She testified that she vacated the premises on January 30, 1968, and moved to an apartment for which she paid $230 a month rent. Dr. Riegler testified that he had been unable to sell this house and will have to pay monthly payments of $257 on the. mortgage indebtedness thereon, insurance, taxes, and utilities bills until he can sell it. The property is vacant, and he receives no income from it.
Appellee has purchased a .home for which she paid $28,000, $13,000 of which was in cash. The balance is payable in monthly installments of $143.80. She also bought draperies, furniture, and appliances for this residence. Dr. Riegler paid her $800 a month beginning February 8 until June 8 when he paid $689.45. He paid her $616.67 on July 8. Based on the assumption that the payments should have been $1,000 per month beginning February 8, the arrearage amounted to $1,-484.88.'
She also testified, in substance, as follows: Her cost of living has increased tremendously. Her cost for utilities for herself and two children is the same and for food practically the same as it would be if she had three children. She paid her attorneys in the divorce case $5,500 in excess of the amount allowed by the courts. She sold stock from her inheritance to pay attorney s’ fees in litigation she had with her sister over their aunt’s estate. She has not attempted to obtain employment, having figured that, on the basis of the minimum wage scale, her expenses would be such that she couldn’t be profitably employed. She is a member of Riverclale Country Club. She has done without a maid for about three months but planned on rehiring one last fall. She paid appellant approximately $2,600 as a result of the judgment affirmed by this court in 244 Ark. 483, 426 S.W. 2d 789. She owns an automobile, a lot she acquired in 1965 for $7,900, and has a savings account of $6,900. She paid $790 as a down payment on the lot and is paying the balance at the rate of $79 per month.
It was shown that Federal Reserve Bulletins showed a rise of 9.1 percent in the Cousumcr Price Index from April 1966 to April 1968.
"We are unable to say that the finding of the chancellor relative to the amount of alimony and child support to be paid after rendition of the decree was erroneous. The burden was on the appellant to show such a change in circumstances as would justify a reduction in these amounts. See O’Kane v. Lyle, 123 Ark. 242, 185 S.W. 281. While appellant has assumed the support of his current wife and her children, he has not shown that this burden renders him unable to make the payments originally decreed by the court or to make those he is now directed to pay. A husband’s remarriage is a matter that may be considered in weighing the equities of the situation, but this fact alone is ordinarily not a ground for reducing the amount of child support or alimony. McCutcheon v. McCutcheon, 226 Ark. 276, 289 S.W. 2d 521. There is no evidence whatever as to (lie present income of appellant. Neither the obligation nor the necessity for his supporting his current wife’s children can be said to have been established. Nor can we determine the extent of this wife’s property even though the inference that she has assets of her own is clear, rkctually there is nothing to indicate the difference in Dr. Riegler’s cost of living before and after the second marriage. The allowance for child support was not reduced pro rata because of Rebecca’s obtaining her majority, but the court’s action can be justified by reference to the increase in the cost of living and the inescapable conclusion that the cost of food and shelter is not in direct proportion to the number of people involved.
One of appellant’s contentions with reference to the amounts he is required to pay by the court’s latest decree is that the residence has not been sold as contemplated by the first decree. On this point we agree with the chancellor, who found that the alimony payments should have been $350 per month and the child support $650 per month beginning on the first payment date after the vacation of the residence by appellee. While the terms of the agreement under which the deed to appellant was executed are not shown in detail, it seems obvious that it was the intention of the court in the original decree that the lesser amounts be paid to appellee so long as she was permitted to occupy the house. When we consider that the agreement between the parties concluded all rights of the appellee under the original decree except for alimony and child support, this conclusion seems even more obvious. As soon as Mrs. Riegler vacated this house, her cost of living was increased by $230 per month for rent. Although Dr. Riegler will be required to continue the monthly house payments until he has sold the property, he will not be required to account to appellee for any of the proceeds of the sale.
One of the bases for determination of alimony and child support is the manner and style of living to which the wife and children have been accustomed. Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998. The present manner and style of their living is not shown to be materially different from that enjoyed by them before the dissolution of the marriage.
We cannot sajr that there was any abuse of discretion in the allowance of attorney’s fees in the lower court. It was appropriate for the trial court to consider the financial abilities of both parties and to weigh the allowance in the light of other factors concluded by the decree. Wo are quite sure that no greater fee was allowed because of Mrs. Riegler’s financial ability.
We cannot say that there was error in denying appellant’s plea for remission of child support during summer vacation visits of the children with him. The trial court may well have taken this into consideration in fixing the amount of the monthly payments.
There is one respect in which we find error in the decree. The chancellor stated that the equities of the case were such that appellant should not be required to pay any part of arrearages in excess of $600. He arrived at the latter amount by saying that the alimony paid should have been $100 more for each month after appellee vacated the house. Apparently the chancellor thought that the fact that the 18-year-old daughter had lived witli lier father for a year warranted his relief from the remaining arrearages of $884.88. This view was considered and rejected in Sage v. Sage, 219 Ark. 853, 245 S.W. 2d 398. Under the rule announced in that ease and followed in Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940, the chancery court had no power to remit accumulated payments which became vested in appellee as they became due under the circumstances of this case. A modifying decree can relate to the future only.
In view of Mrs. Riegler’s ap^iarent ability to pay, we deem an allowance of $250 for attorney’s fees on this appeal to be adequate.
The. decree is affirmed as to the allowance of alimony, child support, and attorney’s fees for services in the lower court and modified as to the judgment for arrearages by an increase from $600 to $1,484.88.
Byrd, J., not participating.
Mrs. Riegler was plaintiff in the action. | [
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Smith, J.
The court below dismissed as being without equity the suit of appellant, a citizen and taxpayer of the city of Magnolia, in which he sought to enjoin the officials of that city from proceeding, under Ordinance 244 of that city, which ordinance, if valid, authorized an election upon the question of the construction of a municipal hospital.
. This appeal is from that decree, and appellant, the plaintiff below, questions first the action of this court in advancing the cause for submission. The cause affects the public interest, and it has always been the policy of this court to advance such causes for submission.
The second point made is that the ordinance was passed August 23, 1938, and the election which it provided for, to determine whether the city should issue bonds, pursuant to the provisions of the Amendment No. 13 to the Constitution, to erect a hospital, was held September 26, 1938, thus defeating the right to have' the ordinance itself referred to the electorate of the city for approval or rejection.
The ordinance does not authorize the issuance of bonds. It provides that an election shall be held, at which time the electors shall vote upon that question, and requires the affirmative vote of the electors to confer that authority.
The authority to issue bonds for certain designated purposes, and, among others, the erection and equipment of hospitals, conferred by Amendment No. 13, is conditioned upon the submission of that question to the electors of the city, and an affirmative vote upon the subject. The question must be referred to and be approved by the electors before the power may be exercised, so that the election is, itself, a referendum. Campbell v. City of Eugene, 116 Ore. 264, 240 Pac. 418. But it is not essential to the decision of this case to hold that there was no right to have the ordinance authorizing the election to be referred, and we may treat that question as being reserved without changing the conclusion which must be reached.
Amendment No. 7, commonly referred to as the I. & B. Amendment, provides that ‘ ‘ Municipalities may provide for the exercise of the Initiative and Referendum as to their local legislation.” Pursuant to this power there ivas passed, in 1927, an Ordinance No. 167, by the city of Magnolia, which limits the time for filing a referendum petition to thirty days after the passage of any ordinance, and no attempt was made to exercise this power within thirty days after the passage of the ordinance, or at any other time. In view of the fact that only ninety days is allowed after the adjournment of the General Assembly in which to file petitions for referendum on a law statewide in its operation, we cannot say that thirty days is too short a time in which to petition for a referendum on a city ordinance.
The testimony shows very clearly that when Ordinance No. 244 was passed it contained the emergency clause declaring that the ordinance should be in force and effect from and after the date of its passage. It is true the emergency clause did not defeat the right to have a referendum on the ordinance, hut the emergency clause did have the effect of making the ordinance effective from and alter its passage, subject, of course, to the right of the electors of the city to reject it, had they exercised their right of referendum within the time and manner allowed by Ordinance 167 for that purpose, which was not done. Ordinance No. 244, therefore, authorized the holding of the election on the day on which' it was held. Wait v. Hall, 196 Ark. 508, 118 S. W. 2d 853.
It is insisted that the election was not held at the usual voting places, as the ordinance required. There are three wards in the city of Magnolia, and two voting places in Ward No. 1. The elections do not appear to have always been held at the same place in one of the precincts in Ward No. 1. There were three such places where elections had 'been held at one time or another, but all were within a block of each other. ' The last preceding-election in one of the precincts of Ward No. 1 had been held at an office across the street from the Western Union Telegraph Company’s office, but the election here in question was held in the Telegraph Company’s office, and the witness by whom the showing was made that the place of the election had been changed admitted that he had no difficulty in locating the place where the election was in progress. In Ward No. 2 the usual place of holding the elections was in the main court room in the courthouse. The election in question was held in another room on the. same floor of the courthouse, only twelve feet away.
The election in Ward No. 3 was usually held in the rear of the Farmers ’ Bank & Trust Company building. A notice was posted on the door of the room where the elections -were usually held in that ward advising that the election was being held in the City Hall, a block away, and the witness who testified as to this change of place admitted that he had no trouble in finding the place where the election was in progress. There appears to have been no attempt to deceive or prevent any voter from exercising his right of suffrage by misleading or confusing him as to the place of the election. The changes in the places were unimportant.
The case of- Rural-Dale Consolidated School District No. 64 v. Carden, 178 Ark. 257, 10 S. W. 2d 253, involved the validity of a school election which had been held at a place other than that designated by the school directors in the notice of election. In holding that this circumstance did not invalidate the election we quoted from the case of Bordwell v. State, 77 Ark. 161, 91 S. W. 555, as follows: “ ‘Election was not void because, instead of being held at the place lawfully fixed for that purpose, it was held at another place near at hand, if persons attending the latter place could be seen from the former place, and it did not appear that any one was misled.’ ”
It is insisted that the election was ineffective as it was held for the purpose only of determining whether a hospital should be erected, and the ordinance made no reference to its equipment. We think, however, that authority to erect a hospital would imply authority to equip it. A naked building would not be a hospital. It would require the essential equipment to make it such, and authorization to erect a hospital would import authority to equip it. •
It is insisted that the election was ineffective because no definite millage of taxation was voted. But the Amendment No. 13 imposes a limitation upon the tax which may be levied (except for waterworks and light plants) not exceeding five mills. The affirmative vote in this case does not, of course, authorize a levy of not exceeding five mills to erect a hospital and five mills additional to equip it. The building and equipping of a hospital is a single enterprise, and the levy to pay for both cannot exceed five mills. Watkins v. Duke, 190 Ark. 975, 82 S. W. 2d 248. The amendment does not require that the ordinance shall state the millage to be levied, but it does limit the amount which may be voted, and there is no showing of any attempt to exceed this limit.
The title of Ordinance No. 244 reads as follows: “An ordinance submitting to the voters of the city of Magr nolia the question whether it will issue bonds not exceeding $33,000 for the purpose of building a city hospital.” It is argued that the city now proposes to issue bonds in the sum of $39,000 to erect the hospital, and that there is no autliority for this action. The ■ ordinance provides, however, that the election is “for the purpose of determining whether the city of Magnolia will issue $33,000 in negotiable bonds, bearing interest at the rate of six per cent, per annum, hut convertible to a lower rate of interest on such terms as the city shall pay and receive substantially the same amount of money as upon the six per cent, bond sold at not less than par.”
The testimony shows that under the contract for the sale of the bonds the city will receive $39,000 for $39,000 in four per cent, bonds, and that to mature those bonds the city will be required to pay only the sum of $56,980, as against the sum of $58,160 which it would be required to pay on a $33,000 issue of six per cent, bonds, thus effecting a saving to the city of $1,180. This action, not only does not violate the provisions of the ordinance, but is expressly authorized.
It is finally insisted that notice of the election was not given by the mayor by advertisement weekly for at least four weeks in some newspaper published in said municipality, as required by Amendment No. 13. In answer to this objection, it may be said that appellant raised no such objection in the complaint filed by him, nor was any testimony offered upon that subject. That question cannot be raised here for the first time without allegation or testimony to sustain it. We must presume that had the objection been raised that no notice of the election was given, the testimony would have shown to the contrary. At any rate, we cannot enjoin the city from proceeding with the erection of the hospital upon a ground neither alleged nor proved.
Certain other questions are discussed in the briefs which we think are not of sufficient importance to require discussion. We conclude, therefore, that the objections urged to the ordinance are not sustained, and that the court below did not err in dismissing the complaint as being without equity. The decree so ordering is, therefore, affirmed. | [
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George Rose Smith, Justice..
The appellants, Jones Morrison and his two sons, and the appellees, Larone Lowe and his wife Floy, were neighbors in a rural area, living about a quarter of a mile apart. The Lowes had bought their property from another member of the Morrison family, with an access right-of-way across the Jones Morrison land. At first the relationship between the neighbors was good. Eventually, however, the two families became enemies and finally had a shotgun and rifle shoot-out near the Lowes’ house. The Morrisons’ gunfire seriously injured Larone Lowe’s hands.
The Lowes brought this suit for the personal injuries, Mrs. Lowe’s loss of consortium, and punitive damages. This . appeal is from a verdict and judgment in their favor. A new trial must be ordered, because of erroneous rulings allowing the plaintiffs to introduce inadmissible and prejudicial testimony.
The principal errors arose from violations of the hearsay rule, which apparently was not clearly understood in the trial court. Rule 801 of the Uniform Rules of Evidence (Ark. Stat. Ann. § 28-1001 [Repl. 1979]) defines hearsay, but the definition does not make any substantial change in the traditional idea about what constitutes hearsay. It is still not permissible for a witness to relate information he obtained from someone else rather than by his own observation. Counsel cannot avoid the rule, as was attempted repeatedly in the court below, by asking a witness for the substance of an out-of-court statement by someone else rather than for an exact quotation. Robinson v. State, 255 Ark. 485, 500 S.W. 2d 929 (1973). As we said there: “The prohibition against hearsay, would cease to exist if it could be so easily circumvented.”
The plaintiffs , at the beginning of their proof, sought to show how the relations between the two families had deteriorated, but the court allowed that proof to include much hearsay. It would have been permissible, for example, for the plaintiffs to testify that they had been told of threats made against their lives by the defendants. See Lee v. State, 72 Ark. 436, 81 S.W. 385 (1904); McCormick, Evidence, § 249 (2d ed., 1972). Such testimony, although hearsay if offered to prove that the threats had in truth been made by the Morrisons, would nevertheless be admissible, with a proper limiting instruction to the jury, to show that thé plaintiffs had reason to be afraid of the defendants and acted in self-defense in the shoot-out that took place.
The plaintiffs, however, were allowed by the trial coiirt to expand the permissible purpose of such preliminary proof to include out-and-out hearsay. We mention three instances of this kind.
First: Mrs. Lowe was allowed to testify that when the telephone company refused to run a line to the Lowes’ house, she checked with the company and found that Jones Morrison had protested because he wanted to improve the road before the line was laid. In response to the defendants’ objection counsel for the plaintiffs stated: “Judge, she did not testify to a conversation. She testified from looking into the matter at the phone company and reports that she received.” The court overruled the objection. That ruling was wrong. The witness’s entire statement was outright hearsay, no danger to the Lowes being involved. We do not imply that a telephone employee could not have testified that Jones Morrison objected; we merely hold that Mrs. Lowe could not testify that such an employee told her that Morrison objected.
Second: Mrs. Lowe was allowed to testify that the Lowes’ hired hand, Robert Huckaby, told her that he (not the Lowes) had been threatened by the Morrisons. One of the plaintiffs’ lawyers argued, in replying to opposing counsel’s objection: “But that’s not hearsay, Judge. That is not a conversation. It is the report of an event.” The witness’s testimony was undoubtedly hearsay, merely summarizing what Huckaby had told her. (We are aware that this particular error may have become harmless in view of Huckaby’s later testimony to the same effect, but the incident still typifies the errors that occurred.)
Third: Mrs. Lowe was allowed to testify about what Officer Gavin, deceased, had told her as information he had gained by interrogation. When an objection was made, plaintiffs’ counsel restated his argument: “He reported it back to her. That makes it an investigation.” Again the testimony, merely a narrative of facts reported by the officer, was unquestionably inadmissible under the hearsay rule. We need not enumerate other instances. The record is replete with hearsay testimony that was erroneously admitted, over objection. .
A somewhat different error occurred when Jones Morrison was required to admit, on cross examination, that he had been charged with a crime as a result of the shooting. Counsel for the Lowes readily concede in their brief that such cross examination is ordinarily not allowed. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974). It is argued, however, that the inquiry was permissible as showing a possible motive for a supposedly fraudulent conveyance made by Morrison, to avoid the claims of creditors. In the first place, Morrison’s motive would have been to avoid civil liability, not to escape punishment for a crime. And second, the connection between the conveyance (which may have been in good faith) and Morrison’s possible civil liability had such a remote bearing upon the witness’s credibility that the court should have disallowed cross examination about the specific act, in the exercise of its discretion under Rules 403 and 608 (b) of the Uniform Rules. The error was presumably prejudicial, suggesting to the petit jury that a grand jury or prosecutor'thought Morrison to be criminally responsible for the shooting.
The Morrisons also argue that the court erred in submitting to the jury a form of verdict allowing a finding only against all three defendants, not against one or more of them. The plaintiffs alleged that the father and sons were on a common mission in going to the Lowes’ premises, each armed with a gun, and the evidence was all to that effect. In fact, each appellant separately testified that they went together and carried guns not only to use in their search for some hogs that had strayed but also to protect themselves against threats made by the Lowes. On the evidence presented we perceive no sound basis for the jury to differentiate among the Morrisons as to possible liability. Of course a contrary ruling may be called for if the proof is materially different upon a retrial.
Reversed.
Harris, C.J., & Byrd, J., not participating. | [
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George Rose Smith, Justice.
This is a taxpayer’s suit attacking the validity of a $3,000,000 municipal bond issue that was sold primarily to pay existing obligations of Magic Springs Theme Park, a privately owned amusement park in or near the City of Hot Springs. Creviston’s complaint for a declaratory judgment and injunctive relief was filed in 1984 against the four appellants: the City of Hot Springs, its Advertising & Tourist Promotion Commission, and two Hot Springs banks. After an extensive trial the chancellor held that the bonds are invalid, for three reasons: The bonds were not issued for the “establishment” of the theme park; they were not issued for a public purpose; and they were not authorized by an election. We need consider only the matter of a public purpose and the need for an election, those issues being decisive.
Magic Springs was created in 1978 as a privately owned amusement park, with the hope that it would be profitable. The promoters contributed some funds to the project, but the bulk of the initial cost was borne by a $4,000,000 Garland County bond issue, secured at least in part by revenues to be derived from the operation of the park.
Apparently the venture lost money from the beginning. By 1982 the county bonds were in default, and there were substantial debts to the banks for money lent. At that time Paul Burge, an officer of First National Bank, was made president of the park company to try to work out its financial problems. The chosen solution was for the creditors to persuade the City to issue the $3,000,000 of bonds now in question. The bonds are secured by a pledge of the gross receipts tax levied by the City upon hotels and restaurants in the City. See Ark. Stat. Ann. §§ 19-4613 et seq. (Repl. 1980 and Supp. 1985). In the bond indenture the City agrees not to repeal that tax until the bonds have been paid. (The General Assembly, in Act 976 of 1985, declared “that the hotel and restaurant tax is not a ‘tax’ as ‘taxes’ are ordinarily understood,” but in the statutes authorizing the levy the legislature correctly called it a gross receipts tax. Its character cannot be changed by a legislative declaration.)
Arkansas Bank & Trust bought $2,000,000 of the bonds; First National bought the other $ 1,000,000. Those proceeds were immediately disbursed, with a total of $2,577,875.09 going back to the banks. After all other disbursements the sum of $260,282.46 was left for the park company to use in its effort to escape from its financial plight. That effort evidently failed, for at the trial there was a reference to the park’s being offered for sale to the highest bidder.
The issue of public purpose may be disposed of quickly. Had the bonds been issued at the outset to create Magic Springs as a tourist attraction, the appellants would be in a better position to argue public purpose than they now are, in view of what has happened. By 1982 it was known that Magic Springs had consistently lost money during its brief life. The county bond money had been spent, and the bonds were in default. Obligations to the banks were delinquent. Most of the proceeds from the sale of the city bonds were used to pay loans held by the banks and to pay the original promoters on some theory not made entirely clear. The chancellor was right in finding that the City’s attempt to use tax money to bail out the creditors of a privately owned venture was not designed to accomplish a purpose primarily public in nature.
Whether an election was required for the issuance of the bonds is not an equally simple question. We reject at once the bank’s argument that the case should be governed by Purvis I, Purvis v. Hubbell, 273 Ark. 330, 620 S.W.2d 282 (1981). In that case we closed our opinion by giving unmistakable notice that our interpretation of the Constitution with regard to the necessity for popular approval of bonds would be reconsidered at the next opportunity. That case was decided on July 13,1981. The bonds now in question were not issued until about a year later; so no one could assume that the position taken by the court in Purvis I would be adhered to.
Ever since the adoption of our Constitution in 1874, it has positively prohibited the issuance of bonds by a city or county without an election. In its original form, Section 1 of Article 16 stated that no county or city should lend its credit, “nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness,” except to pay debts then existing. Exceptions to the broad prohibition were created by Amendments 13, 17, 25, and 49, to permit the issuance of bonds for various purposes, but every one of the Amendments retained the requirement that the bond issue first be approved at an election. All four of those Amendments have now been incorporated in Amendment 62, adopted in 1984, but it too requires the consent of a majority of the electors.
Despite the constitutional ban against the issuance of municipal bonds without popular approval, this court created an exception more than 50 years ago. Snodgrass v. City of Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934). There the city, pursuant to a 1933 statute, adopted an ordinance authorizing the issuance of bonds without an election, to finance improvements to the municipally owned water works. This court approved the proposal, giving its reasons in two sentences that have been often quoted to justify the creation of additional exceptions to the constitutional prohibition:
It was manifestly the intention of the framers of Amendment 13 to prohibit cities and towns from issuing interest-bearing evidence of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements so made alone to the payment of the indebtedness.
The Snodgrass opinion did not explain why it was manifest that the framers of Amendment 13 did not really mean what they said. In truth, the framers had anticipated the very problem that confronted the City of Pocahontas by providing in the Amendment that although only a five-mill tax could be levied for the twenty-odd improvements listed in the Amendment, an additional five mills was authorized to secure bonds issued for the acquisition or improvement of light plants or water works. Thus the framers did intend for the people to be taxed to pay for the very type of improvement that Pocahontas contemplated.
The successive cases by which the breach in the constitutional prohibition has been gradually widened were reviewed in three of the opinions in Purvis II and need not be reexamined. Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936, 669 S.W.2d 900 (1984). That case might have been “the next opportunity” anticipated in Purvis I, but the great diversity of individual views in Purvis II, producing six separate opinions, resulted in there being no majority opinion.
The banks’ reliance on Purvis I puts the issue squarely before us again. We believe that the only proper and permanent course is for us simply to give effect to the plain language of the Constitution. It states that no city or county shall ever issue interest-bearing evidences of indebtedness without the consent of the electors. That mandate is binding. It includes, of course, transparent evasions by which a token commission or other body is created to sign the bonds while disclaiming any responsibility on the part of its creator. There having been no election in the case at bar, the bonds are invalid for that reason also. (We recognize that if any bonds have been issued in reliance on Point 1 of our supplemental opinion on rehearing in Purvis II, those bonds would not be affected by today’s decision.)
The City also appeals from the trial court’s allowance of a $30,000 fee to the appellee’s attorney, to be paid by the City. It has consistently been the rule in Arkansas that attorney’s fees are not chargeable as costs in litigation unless specifically permitted by statute. The legislature authorized the payment of such fees in cases in which the court orders a county or city to refund money to the taxpayers. Ark. Stat. Ann. § .84-4601 (Repl. 1980). Here, however, no such refund was ordered. In that situation the statute does not apply. Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980).
It is also argued that, on the authority of Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631, 679 S.W.2d 795 (1984), and Black v. Thompson, 237 Ark. 304, 372 S.W.2d 593 (1963), the fee should be allowed on a theory of unjust enrichment, in that the City would have continued to waste the taxpayers’ money if this suit had not been brought. Neither case supports the argument. In Williford the fee was allowed because the taxpayer’s suit had created a common fund in court, for the benefit of the taxpayers. Here there has been no similar recovery. In Black the fee was allowed in an administration proceeding on the authority of a provision in the Probate Code, Ark. Stat. Ann. § 62-2208 (Repl. 1971), with unjust enrichment being discussed as a second basis for the allowance. There, however, the heirs had directly benefited from the attorney’s services in defending a fraudulent claim. The situations are not comparable. The allowance of the attorney’s fee in the present case must be set aside.
As so modified the decree is affirmed.
Purtle, J., not participating.
Dudley, J., concurs. Hays, J., concurs and dissents. | [
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Per Curiam.
In this case the appellant’s brief was originally due on June 8,1985. His attorney, William A. Lafferty, filed four motions for extensions of time, the last one extending the time for filing to August 1.
The brief was not filed on August 1. In fact, there was no activity at all in the case until the month of February, 1986, when the Attorney General filed a motion to dismiss the appeal fof failure to file a brief. That motion was not served on opposing counsel, as it should have been. In connection with that motion the Clerk requested that the record be returned by Mr. Lafferty, who had checked it out. The record was promptly returned. On March 14 the present motion to file a belated brief was filed, the motion stating that due to illness and severe emotional and financial difficulties the appellant’s attorney had been unable to complete his brief.
The explanation for a delay of more than six months does not appear to be adequate. The motion is granted, because this is a criminal case; but the matter is referred to the Committee on Professional Conduct for whatever investigation and possible action it may deem proper.
Purtle, J., not participating. | [
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Steele Hays, Justice.
This appeal questions the legality of Ark. Stat. Ann. § 41-2604 (Repl. 1977), which permits the state to prove perjury by introducing conflicting statements without having to prove which statement is false.
Appellants, Sherman Dwight Brown and Leon Larry Smith, were first convicted on pleas of guilty to five charges of aggravated robbery and theft by receiving. They later filed motions to withdraw their guilty pleas pursuant to A.R.Cr.P. Rule 26, alleging they were innocent, that their pleas were coerced by threats of life sentences if they went to trial, and that they were denied effective assistance of counsel.
At a hearing on the Rule 26 motions appellants testified that they had lied at the hearing on their guilty pleas when they testified they had committed the crimes, their pleas were voluntary, and they were satisfied with their attorneys. The motions were denied and the denials were affirmed on appeal.
On October 24,1984, appellants were charged with the violation of Ark. Stat. Ann. § 41-2602 (Repl. 1977), which provides that a person commits perjury if in any official proceeding he makes a false statement under oath, knowing it to be false. The charges were based on the conflicting testimony given by appellants at the guilty plea hearing and at the Rule 26 hearing. The jury returned a verdict of guilty and, as habitual offenders, appellants were given sentences of twenty-three years each, to run concurrently with the sentences already being served. They have appealed. We affirm the judgment.
Five points of error are presented: the trial court should not have overruled a motion to dismiss the information because it charged perjury in the disjunctive; should not have denied a motion for a directed verdict because of retractions by the appellants during the same official proceeding; should not have admitted testimony concerning the guilty pleas because of privilege, should not have denied the jury access to exhibits during deliberations and should not have given an improper instruction to the jury. We will deal with the arguments in the order raised.
I
Appellants submit that by keeping them in prison the state impliedly affirms the truth of the statements given at the guilty plea hearing and that the state should be estopped from charging perjury in the disjunctive where the jury is not required to find which statement is false. The argument has a veneer of logic, but in reality the only position the state assumes when it imprisons individuals under pleas of guilty is that they have made an informed and voluntary plea to the charges, after a full explanation of the consequences of their act. To enforce the sentences imposed upon a guilty plea does not give rise to estoppel when a defendant subsequently claims he lied at the guilty plea hearing. We have held the defense of estoppel is not readily available against the state and that four essential elements must be present: 1) the party to be estopped must know the facts; 2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel had a right to believe it is so intended; 3) the latter must be ignorant of the facts; and 4) he must rely on the former’s conduct to his injury. See Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980) and AP&L v. Arkansas Public Service Commission, 275 Ark. 164, 628 S.W.2d 555 (1982). Some of those elements are plainly lacking here: the state has taken no position on which the appellants have relied to their detriment, nor can it be said the appellants are ignorant of the facts.
To adopt appellant’s argument would effectively nullify Ark. Stat. Ann. § 41-2604 (Repl. 1977), which expressly permits the state to proceed as it did in this case. The statute provides that proof of the inconsistency of the statements shall be evidence that one such statement is false. It relieves the state of the necessity of proving which statement is false, since obviously both cannot be true. Given the presumption of constitutionality, we find nothing remiss in the statute. Gibbs v. State, 255 Ark. 957, 504 S.W.2d 719 (1974).
II
Ark. Stat. Ann. § 41-2606 includes a provision that if an accused has retracted a false statement during “the course of the same official proceeding,” it is a defense to a prosecution for perjury. Appellants urge that the hearing on their guilty pleas and the hearing on their motions to withdraw their guilty pleas were the “same official proceeding” and, thus, they retracted their false statements when they told the truth at the Rule 26 hearing. We reject the argument. Ark. Stat. Ann. § 41-2606(l)(b), (c) requires retraction in the same proceeding and “before the subject matter of the official proceeding was submitted to the ultimate trier of fact.” When the circuit judge accepted the guilty pleas and entered judgment, it was then too late to retract. While § 41-2606(2) provides that separate stages of the same case shall be deemed to have been made in the course of the same proceeding, we do not consider the hearing on plea withdrawal to be part of the same proceeding when the previous phase ended with the acceptance of the guilty pleas. To hold otherwise would be inconsistent with the purpose of the perjury statute. See generally Commentary to § 41-2602 and see also, § 41-2606(3).
Ill
Nor do we find merit in the argument that Uniform Evidence Rule 410 and A.R.Cr.P. 25.4 render the appellants’ guilty pleas privileged. Rule 410 reads:
Evidence of a plea later withdrawn, of guilty, or admission of the charge, or nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.
The simple answer is that an attempt to withdraw a plea of guilty does not operate as a withdrawal, which only the court can grant, and hence, the rule does not come into play. This provision is intended to protect an accused who has been permitted to withdraw a plea of guilty in accordance with A.R.Cr.P. 25 from having his guilty plea used against him as an admission against interest when he is tried on those same charges. It has no relevance to this case. As appellants tacitly concede, if their proposition were to prevail, there could be no perjury charges dependent on testimony at a guilty plea hearing. That was not the intent of Rule 410.
IV
Appellants next contend the trial court erred when the jury sent a note from the jury room asking, “[D]uring what time period was Mr. Smith on the medication, Triavil?” The defense asked that the exhibits be sent to the jury because the answer could have been found in one of the exhibits. The trial judge declined to do so and told the jury it would have to rely on the evidence previously presented. Appellants concede that this issue falls within the trial judge’s discretion, but they believe his denial was an abuse of discretion. We disagree that his action was beyond the bounds of discretion.
V
The remaining point concerns a jury instruction which appellants say should not have been given. The instruction told the jury in effect that conflicting statements made in the same proceeding, if found to have occurred, constituted evidence of perjury. We need not answer the assertion that the instruction amounted to a comment on the evidence, as the record reflects that no such instruction was given.
The judgment on the sentences is affirmed.
Purtle, J., not participating.
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George Rose Smith, Justice.
The appellant was charged with incest, in that he had sexual intercourse with his daughter, then 19 years old. The appellant’s defense, voluntary intoxication, was submitted to the jury in AMCI 4005.1. The jury found the defendant guilty and imposed a five-year prison sentence. The case was transferred to us as presenting an issue of statutory construction. Rule 29(l)(c). The five points for reversal relate to the voir dire of the jury and to the admissibility and sufficiency of evidence. We do not find any basis for disturbing the conviction.
The prosecutrix testified that she had a baby when she was twelve and living with her family. Shortly after that her father began fondling her and eventually had sex with her. That continued until she was seventeen, when she married and moved to an apartment with her husband. She and her husband separated, but she kept the apartment.
About a week before the offense the defendant let his daughter know that he wanted to have sex with her again. She testified that she did not intend to permit it and enlisted the aid of a friend, who called the police. The officer said that the police do not act unless a complaint is made. The prosecutrix testified that when her father telephoned her that he was coming to the apartment, she again called her friend. He testified that he drove over there and watched the defendant arrive in his car. The prosecutrix testified that her father entered the apartment, began fondling her, and eventually laid her on a pallet and accomplished his purpose. She said that in the past he had threatened to kill her if she told anyone. She said he was not intoxicated that morning.
The appellant testified that he had been an alcoholic for many years. He professed to remember nothing about the earlier incidents and did not see how they could have happened. He said that on the morning of the alleged offense he had drunk beer and whisky. His daughter, according to his version, called him and asked him to come to her apartment. He drove over there. She explained that she was worried about some bills her husband had incurred. After some conversation she asked to borrow his car that night, but he refused because he had no insurance on it and she did not have a driver’s license. “And that’s all that I can remember.”
The appellant first complains that the trial judge unduly restricted his voir dire of the jurors. Counsel sought to ask a number of hypothetical questions about situations that could not arise during the trial. For example, his first question to one juror was: “Mr. Patterson, if you were asked to cast your vote at this minute, of guilt or innocence of James Johnson, how would you vote?” Other impermissible questions were so long and involved that we do not set them out. When the prosecutor objected to the method of examination, the trial judge noted that the questions were confusing to the jurors. The judge also explained in a general way what questions would be allowed. The hypothetical questions counsel sought to ask were much too detailed and might easily have confused the jury. We find no unnecessary limitation of counsel’s right to examine the veniremen.
Second, it is argued that the court should not have permitted the prosecutrix to testify about her father’s earlier incestuous relations with her. Uniform Evidence Rule 404(b) excludes proof of a defendant’s other crimes to prove his character in order to show that he acted in conformity with that character. The Rule then gives examples of permissible purposes in proving other crimes, such as proof of motive, opportunity, intent, and soon. We have long held that proof of prior incestuous acts with the same person is admissible. Adams v. State, 78 Ark. 16, 92 S.W. 1123 (1912). Our reasoning was explained in a carnal abuse case involving proof of prior similar acts between the parties, Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912):
The testimony in question was not introduced for the purpose of proving a substantive crime, but to show the relation and familiarity of the parties, their disposition and antecedent conduct towards each other, and as corroborative of the testimony of the prosecuting witness touching the crime charged in the indictment. It showed the intimacy of the parties, and was admissible as characterizing the previous acts and conduct of the parties in regard to the particular offense charged.
Another incest case so holding is Carmen v. State, 120 Ark. 172, 179 S.W. 183 (1915). The appellant cites Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), where we put an end to a developing practice of saying loosely that proof of recent, similar crimes is admissible to show intent. See Gerlach v. State, 217 Ark. 102, 229 S.W.2d 37 (1950); Hummel v. State, 210 Ark. 472, 196 S.W.2d 594 (1946); Hearn v. State, 206 Ark. 206, 174 S.W.2d 452 (1943). In the Alford opinion, however, we adhered to the rule applicable to prior incestuous acts between the same parties, citing Adams, supra. The trial court correctly applied that rule in the present case.
The appellant’s third argument is that the trial judge should have directed a verdict for Johnson, because his daughter was an accomplice and her testimony was not corroborated. In the first place, there was no motion for a directed verdict, and the trial judge is not required to take that action on his own initiative. In the second place, the Criminal Code provides that the victim of a crime is not an accomplice. Ark. Stat. Ann. § 41-305 (Repl. 1977). It is argued that the prosecutrix was not a victim, because it is asserted she was trying to lay a trap for her father, to prove that he had abused her sexually in the past. That is an unrealistic interpretation of her testimony, for she said she tried to prevent her father’s impending visit and said positively that she had not intended to have sex with him. Thus whether she was a victim was at the very least a disputed issue of fact; so a directed verdict would have been wrong.
A fourth argument is that the defendant should have been allowed to testify, as part of the defense of intoxication, that after his arrest he had taken Antabuse for months and participated in counseling in an effort to correct his alcoholism. The trial court correctly refused to allow such testimony by the defendant.
Voluntary intoxication is not a statutory defense under the Criminal Code, but is recognized as a common-law defense when a crime, such as burglary, requires the formation of a specific intent. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). AMCI 4005.1, which was given, is based on that case. In the case at hand the instruction told the jury that voluntary intoxication is a defense only if as a result of it James Johnson lacked the capacity to form the purposeful mental state necessary to commit the offense. AMCI2403, which was also given, told the jury that the State must prove that James Johnson had sexual intercourse with a person he knew to be his descendant. Thus the only specific knowledge required is that Johnson knew that the prosecutrix was his daughter. There has never been even the slightest suggestion that he did not recognize her as his daughter. To the contrary, his own testimony showed that immediately before the commission of incest he drove to her house and-discussed her lack of a driver’s license. Johnson’s proffered testimony about his attempted rehabilitation after his arrest was not relevant to the issue of guilt or innocence. It must be kept in mind that even if the jury believed that he had no memory of the incident, that alone would not establish his innocence.
In the appellant’s brief counsel states that a doctor and a counselor were available to testify at the trial about the blackout problems common to alcoholics and would have given their opinions about the appellant’s alcoholism and his amnesia when intoxicated. Counsel concedes that his proffers “could have been more specific,” but actually there was no proffer of what the doctor or the counselor might have testified; they were not even mentioned. Their opinions were submitted to the trial judge at a sentencing hearing six weeks after the trial, and were considered, but with respect to their possible testimony there was no error at the trial.
Finally, appellant complains that the prosecutrix was permitted to testify that as a result of the earlier incidents with her father she had a slight nervous breakdown, was in the hospital, and saw a psychiatrist. The point was raised at a bench conference requested before the witness had answered the first question about these matters. Counsel objected, saying: “I think he’s getting into counseling she might have had afterwards.” If the objection was meant to refer to counseling after the offense on trial, there was no such testimony. If it referred to problems she had after the earlier occurrences, that testimony did have some probative value in tending to show that the prior incidents of incest had actually taken place. Whatever prejudicial effect the testimony might have had did not so clearly outweigh its probative value as to enable us to say that the trial judge abused his discretion in admitting the testimony into evidence.
Affirmed.
Purtle, J., not participating. | [
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Per Curiam.
In October, 1984, Clarence Gay was convicted of rape and sentenced to life imprisonment. He filed a timely pro se notice of appeal and the record was prepared for filing with this Court, but it was never lodged here. He now seeks a belated appeal, alleging that he was incompetent to proceed with the appeal pro se because of low intelligence and lack of education. Petitioner’s appointed attorney at trial was Joe Villines. In his affidavit in response to the motion, Mr. Villines, who has not been relieved as counsel by either the trial court or this Court, states that he discussed the possibility of an appeal with petitioner after trial and informed him that there was no basis for reversal of the conviction. He avers that he did not know that petitioner had filed a notice of appeal.
Criminal Procedure Rule 36.26 states that counsel, whether retained or appointed, shall continue to represent a convicted person throughout appeal unless permitted to withdraw by the trial court or this Court. A convicted defendant may waive his appeal right by failure to communicate to counsel his desire to appeal. Conley v. State, 286 Ark. 388, 691 S.W.2d 868 (1985); Henderson v. State, 278 Ark. 107, 643 S.W.2d 107 (1982). The timely notice of appeal filed by petitioner is proof that he desired an appeal. Even if he did not specifically notify counsel that he had filed the notice, counsel had not been relieved as petitioner’s attorney-of-record and was responsible for knowing what had been filed in regard to the case within the time set for filing a notice of appeal. Moreover, if counsel felt that the appeal had no merit, he was obligated to either obtain permission from the trial court to withdraw before the notice of appeal was filed, Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), or file a motion to withdraw in this Court after the notice of appeal was filed. Rules of the Supreme Court, Rule 11(h), Ark. Stat. Ann. Vol. 3A (Supp. 1985).
The failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal constitutes a denial of effective assistance of counsel and is good cause for granting a belated appeal. Blakely v. State, 279 Ark. 141, 649 S.W.2d 187 (1983);Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). As counsel for petitioner did not withdraw from the case in accordance with the rules of procedure and failed to comply with the obligations set forth by the rules and opinions of this Court, the belated appeal is granted. Counsel Villines is responsible for lodging the record with this Court within thirty days.
Motion granted.
Purtle, J., not participating. | [
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David Newbern, Justice.
This appeal comes to us on a pro se brief by the appellant. No abstract of the record was presented by the appellant, or by the Arkansas Attorney General on behalf of the appellee.
From the appellant’s statement of the facts, the appellee’s brief, and mostly from the record, we are able to glean that the appellant asked the Jefferson County Circuit Court to order A. L. Lockhart, Director of the Arkansas Department of Correction, to change prison records to show the appellant is serving a five-year, rather than ten-year, sentence. The appellant’s complaint seems to be that the Conway County Circuit Court entered judgments and commitment orders on some counts of possession of marijuana with intent to deliver after the case had been appealed to and affirmed by the Arkansas Court of Appeals. Apparently a jury verdict recommended sentences ranging from five to ten years on a number of counts but, through oversight, the judge only entered one commitment order for five years. The court of appeals, assuming incorrectly that the trial court had committed the appellant to a concurrent five-year sentence on each count, affirmed the judgment. Thereafter, the judge entered the other commitment orders, on the other counts of which the appellant had been found guilty by the jury. One of the orders was for a ten-year sentence. All of them were to run concurrently. The appellee argues the trial court was only correcting a clerical error. The appellant argues the trial judge was performing a judicial act in a case of which he lost jurisdiction when it went on appeal.
We hold pro se litigants to the abstracting requirement of Rule 9 of the Rules of the Arkansas Supreme Court and Court of Appeals. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). While we are more lenient toprose appellants, Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979), we will not entertain an appeal which completely ignores the requirement. This court consists of seven justices. There is only one record. We cannot continue to operate efficiently if each justice must look at the record to ascertain the facts. G. Smith, Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 359 (1977). We must, therefore, adhere to the abstracting requirement.
Affirmed.
Purtle, J., not participating. | [
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Darrell Hickman, Justice.
This appeal is dismissed because there was no final judgment or order entered.
Bonita Fowler sued Sky Tapp, who at one time represented her, claiming that Tapp wrongfully withheld money from a property settlement in her divorce case. She asked for the $1,000 in dispute and punitive damages. Tapp filed a motion to dismiss and a motion for summary judgment. The trial judge denied the motions on March 26,1985. Tapp did not file an answer or other pleading. In June Fowler asked for a default judgment, and it was granted for the $ 1,000. The claim for punitive damages was to be determined at a later proceeding.
Rule 2 of the Arkansas Rules of Appellate Procedure provides that an appeal may be taken from a final judgment or decree. To be final, a judgment must dismiss the parties from court, discharge them from the action, or conclude their rights to the subject matter in controversy. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982); McConnell v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970); Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943).
In Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984), a recent case in which the trial court dismissed a claim for punitive damages but deferred the claim for compensatory damages, we said:
If this appeal were allowed and we decided the issue on punitive damages and subsequent errors occurred during the trial on the remaining issues, the case could be appealed a second time, resulting in two appeals where one would suffice. This case illustrates simply the reason for the rule that an order must be final to be appealable.
That is exactly the situation presented here.
Appeal dismissed.
Purtle, J., not participating. | [
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Steele Hays, Justice.
The appellant was sentenced to fifty years imprisonment, with fifteen years suspended, upon a plea of guilty to a particularly brutal rape of his four year old stepdaugh ter. Two years later appellant petitioned for post conviction relief under A.R.Cr.P. Rule 37 based on a number of allegations. After a hearing the circuit court reduced the sentence to thirty-five years with no time suspended. The other requested relief was denied.
Appellant alleges five points for reversal: 1) the circuit judge should have recused or granted a new trial because of prejudice; 2) extrajudicial actions by the circuit judge warrant a new trial; 3) the circuit judge erred in the manner he modified the illegal sentence; 4) appellant should have been referred to the Arkansas State Hospital; 5) appellant was denied effective assistance of counsel. We affirm the order appealed from.
During the sentencing, in the course of commenting on the crime, the judge remarked, “If Mr. Campbell (the appellant) had done this to my child, I don’t know that we would be having a hearing here today.” A newspaper reporter covering the sentencing described the judge as emotional and visibly upset. Appellant insists that there can be only one reasonable interpretation, i.e. had the victim been the judge’s daughter he would have taken matters in his own hands.
We have examined the judge’s comments in their entirety. He spoke at some length about the crime and the fact that it exceeded anything he had seen while serving on the bench. We are satisified his words were intended in a figurative sense— an effort to verbalize the enormity of the crime. Nothing he said before or after the quoted comment suggests he intended his remarks to be taken literally. It was a poor choice of words, to be sure, but that can be attributed in part to the crime itself. (The child’s vagina, rectum and mouth were badly lacerated by the penetration, her entire body was bruised and patches of hair had been torn out.) And while appearance is important, it need not override reason when the reality is the judge’s overall handling of the case was not lacking in fairness. That he imposed a net sentence of thirty-five years when he could well have imposed a life sentence is a strong indication he had not lost his objectivity.
Appellant compares the case to Burrows v. Forest City, 260 Ark. 712, 543 S.W.2d 498 (1976), where the judge advised the defendant to bring his toothbrush to a revocation hearing. But the trial judge was functioning in a fact finding role in Burrows, and the remark gave the decided appearance that the issues had been predetermined.
Moreover, the judge’s comments were not derived from extra judicial sources, but were attributable only to what he had learned about the case at the sentencing hearing. An analogous situation occurred in United States v. Grinnell Corporation, 384 U.S. 586 (1966), where the Supreme Court found nothing improper when the trial judge expressed strong opinions concerning the proof.
Under Point 2 appellant notes that during a recess in the Rule 37 hearing the trial judge showed counsel for appellant a number of photographs of the victim which had been introduced at sentencing, showing the severe trauma to her entire body. We can attach no great significance to this incident. The photographs were part of the record and the judge may have intended nothing other than to show counsel, who did not represent appellant at sentencing, what he had considered in fixing the sentence as he did.
At the close of the Rule 37 hearing the judge made some observations about his deliberations prior to and at the time of sentencing, which the appellant now insists are objectionable under Unif. R. Evid. 605, which prohibits a presiding judge from testifying as a witness in the case. We reject the argument, as we do not interpret Rule 605 as prohibiting the judge at post conviction proceedings from commenting on why he imposed the sentence he did, particularly in light of the allegations that he was prejudiced.
Appellant also complains that the judge’s comments in a letter following the hearing reflect an ex parte investigation by the judge. At the hearing the public defender, who had represented the appellant at the time of sentencing, had been called as a witness for appellant but was unable to remember much about the case. The judge’s letter noted that the public defender had not been subpoenaed nor even told about the hearing, but counsel for appellant had simply encountered him by chance at the courthouse and had asked him to testify. Thus, he had no opportunity to review his file and was understandably handicapped in his recollection of the events of two years earlier. Whatever may be said of the argument, it is collateral to the issues concerning Rule 37 relief, which requires allegations of flaws so fundamental as to render the judgment void. Woodward v. State, 273 Ark. 235, 617 S.W.2d 861 (1981).
Appellant’s Point 3 concerns the original sentence of fifty years, with fifteen years suspended. He argues a sentence of fifty years is in excess of the time allowed by law. The argument is correct. Appellant pleaded guilty to a Class Y felony, which carries a sentence of ten to forty years, or life. Ark. Stat. Ann. §§ 41-1803,41-901. Thus, appellant could not properly be sentenced to fifty years. The trial judge was right to modify the sentence to thirty-five years and appellant now argues that he is entitled to the fifteen years suspended under the original sentence. We disagree with the argument. Where a sentence involves separate sentences, as with several counts for example, it is true the law generally prohibits the modification of the legal portion of the sentence. Loola v. State, 609 P.2d 35 (Ala. 1980); State v. North, 283 N.W.2d 457 (Wisc. 1979). However, when there is an error in one portion of an individual sentence, as here, the courts view the sentence as an indivisible totality and if modification is required, the court may on resentencing impose any sentence it could have lawfully imposed at the outset. People v. Wilson, 315 N.W.2d 423 (Misc. App. 1981); Herring v. State, 411 So.2d 966 (Fla. 1982); People v. Gillette, 304 N.Y.S.2d 296 (1969).
There is another reason why the modification was not erroneous — the suspension of a part of the Class Y felony sentence is prohibited under Ark. Stat. Ann. § 41-803(5):
If a defendant pleads or is found guilty of an offense other than capital murder, treason, a Class Y felony or murder in the second degree, the court may suspend imposition of sentence and place the defendant on probation.
The commentary reads:
[The statute was amended] so as to make clear that a sentence to imprisonment was the only penalty for conviction of a Class Y felony. Other sentencing alternatives, such as suspension, probation, and a fine, are no longer available in a Class Y felony.
Appellant’s Point 4 is the trial court clearly erred in finding that there was no basis in fact to justify an evaluation of the defendant at the Arkansas State Hospital under Ark. Stat. Ann. § 41 -605. Appellant cites the testimony at sentencing of Mr. Bruce Allen, a clinical psychologist on the staff of the Ozark Regional Mental Health Center. He testified that he had interviewed the appellant several times. He said appellant had intermittent explosive behavior which, he said was classified as a mental illness. But it is clear that the witness was not equating that reference to mental disease or defect as the sort sufficient to compel the court on its own to send appellant to the state hospital. Additionally, it was specifically stated by appellant’s counsel that this testimony was not offered for the purpose of raising insanity as an issue. Appellant’s own psychologist was not able to testify as to any probability that mental disease existed and there is no argument or demonstration that had the defendant undergone an evaluation he would have been able to negate that finding. Under those circumstances the court was not given “reason to believe” that mental disease or fitness to proceed were at issue.
Appellant’s Point 5 maintains he was denied effective assistance of counsel. The allegations are essentially conclusory, Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982), and we cannot say the trial court’s finding to the contrary was clearly erroneous. The issue is whether the guilty plea was entered intelligently and voluntarily, Campbell v. State, 283 Ark. 12, 670 S.W.2d 800 (1984), and there is no proof on that score.
The order is affirmed.
Purtle, J., not participating. | [
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George Rose Smith, Justice.
In this divorce suit both parties asked for a divorce, for indignities. The couple were married in 1967 and separated in 1983. They have two children, Robert, now 15, and Janessa, now 11. After hearing much testimony the chancellor entered decrees granting a divorce to the wife, awarding custody of the children to her for nine months of each year and to the husband for the summer months, leaving the matter of visitation to the parties, awarding Mrs. Lawyer monthly alimony of $300 and monthly child support of $700, dividing the property, finding that Lawyer’s termination benefits under his contract of employment are marital property, and dividing those benefits in a manner to be detailed later in this opinion.
Lawyer has appealed, arguing (1) that he should have been given custody of the children and therefore possession of the family residence, and (2) that his possible termination benefits do not constitute marital property. The case comes to us for construction of the marital property statute. Rule 29(l)(c).
On the first issue we do not find the chancellor’s decision to be clearly erroneous. Most of each spouse’s proof was offered to show the other’s misconduct. Neither has been a faithful partner in the marriage, but nothing would be accomplished by a recitation of the testimony in detail. The chancellor observed that both the father and the mother had been excellent parents. In deciding that an award of custody to the mother would be in the best interest of the children, the chancellor considered it important that she had been at home much of the time and thus had had a close relationship with the children. We note, too, that a number of neighbors testified from their own observation that Mrs. Lawyer had been a fine mother. In custody cases especially we attach great weight to the conclusions reached by the trial judge. Here we cannot say that he was clearly wrong.
The other issue is whether Lawyer’s possible termination pay is marital property subject to division. In 1973, six years after the marriage, Lawyer began working as a local agent for the State Farm insurance companies and was still so employed when the case was tried in 1984. His employment contract provides that if the contract is terminated by either party, he will be entitled to 60 monthly installments of termination pay, based upon a specified percentage of his earnings during his final year of employment. The trial court, relying on Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), and Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984), held that the payments will be marital property if received. By request, State Farm calculated that if Lawyer’s contract were terminated at the time of trial, he would be entitled to receive $1,288 a month for five years. The decree provides that if termination payments are made, Mrs. Lawyer, if still living, will receive half of each payment, not to exceed $644 (half of Lawyer’s $1,288).
Lawyer argues that the termination pay has not been acquired during the marriage and that its eventual receipt is too speculative for it to constitute marital property.
We must consider the payments in their proper setting. When an insurance agent sells a policy of automobile, fire, or life insurance, it is to be expected that the policy will remain in force indefinitely. For that reason it is a settled practice for the agent to receive a commission not only on the original premium but also on the renewals. Indeed, renewal commissions are so commonplace as to be discussed at length in treatises on insurance law. Appleman, Insurance Law & Practice, Ch.313 (1981);Couchon Insurance, §§ 26A:232 et seq. (2d ed., 1984). Hence when an insurance agent stays with the same company, as Lawyer has done, his renewal commissions increase as he writes more and more policies; they become a growing part of his regular earnings.
Lawyer’s printed contract with State Farm fixes initial and renewal commissions varying with the type of insurance sold. For automobile policies, for example, his commission is 55% of the first premium and 10% of renewals. He is required to solicit applications for insurance, collect initial premiums, countersign and deliver policies, assist policyholders, and cooperate with adjustors in handling claims. The contract recites that the renewal commissions are compensation for the agent’s required servicing of the policies he has written.
The contract may be terminated by either party at any time and will terminate if Lawyer dies. The five-year termination benefits, described earlier, begin at termination if the agent has been employed for two years or more. There is also a true retirement plan, entitled Extended Termination Payments. That plan takes effect if the contract is terminated after the agent reaches age 65 and has at least 20 years of service. The retirement benefits begin as in the five-year plan and then continue at the same monthly rate until the agent’s death. In any case of termination the agent must return all property and not solicit State Farm’s policyholders competitively for a year, but those restrictions are within the agent’s control and not relevant here.
We are unable to agree with the chancellor’s ruling that the five-year termination payments are vested marital property in this case. We are not concerned with State Farm’s true retirement plan, only with the 60-month stopgap that is evidently intended to compensate the agent for lost renewal commissions when the contract is terminated by the employer or by the agent himself. Lawyer was born in 1946 and will not reach 65 until the year 2011, twenty-five years in the future. When the suit was filed he had been with State Farm for ten years. His annual commissions had increased to about $80,000 (from which he must pay his staff and office expenses, not detailed in the testimony). There is no indication he is likely to terminate his association with State Farm. It would be next to impossible to put a present value on the possibility that Lawyer will receive termination payments before he reaches retirement age. Certainly no such estimate is in the record as abstracted. If, on the other hand, Lawyer retires after reaching 65, as presumably he will, the decree requires that up to $644 of his retirement benefits must be paid to his wife of 25 years earlier, though his earnings so long ago will have little to do with the amount of his retirement income. We are unwilling to extend our holdings in Day and Gentry to the facts of this case.
Before closing we should mention a case, not cited in the briefs, in which the California Supreme Court, on facts identical to those in the case at bar, held that five-year termination benefits under the same State Farm contract are divisible as community property, upon divorce. Skaden v. Skaden, 19 Cal. 3d 682, 139 Cal.Rptr. 615, 566 P.2d 249 (1977). The opinion, however, supplies no guidance; for the court made no suggestion about the division, declaring instead that in all such cases the proper division should be left to the sound discretion of the trial court, to which the case was remanded.
Affirmed in part, reversed in part.
Purtle, J., not participating.
Dudley and Hays, JJ., dissent. | [
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Jack Holt, Jr., Chief Justice.
The parties to this lawsuit are all members of the Sixth and Izard Church of Christ, Inc., a church incorporated under Arkansas law as a nonprofit corporation. Appellants are elders of the church and appellees are part of its general membership. Appellees instituted suit in Pulaski Chancery Court alleging that they have been denied financial data and other business information relating to the church and asserting that, as members of a nonprofit corporation, they are entitled to this knowledge as a matter of statutory right. Appellants filed a motion to dismiss for failure to state a claim and because the relief sought cannot be awarded without violation of the first and fourteenth amendments to the United States Constitution and art. 2, §§ 24 and 25 of the Arkansas Constitution. The trial court denied the motion to dismiss without conducting a hearing on the constitutional issues. Appellees filed discovery requests seeking the same financial and business information which was the object of the lawsuit. The appellants challenged the propriety of the discovery request, but the trial court ordered them to comply. It is from that interlocutory order that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(a) and (k).
We grant relief from the interlocutory order and find that an evidentiary hearing is necessary to determine the merits of appellants’ claim of constitutional protection against ordered disclosure of church information. Accordingly, we remand to the trial court.
The religious beliefs of all citizens are zealously protected from government interference under both the state and federal constitutions. The Arkansas Constitution provides that “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; ... No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience. . .” art. 2, § 24. In recognition of the fact that “[r]eligion, morality and knowledge [are] . . . essential to good government”, the General Assembly was instructed to enact suitable laws to protect every religious denomination. Art. 2, § 25.
We have strictly adhered to this absolute prohibition of any infringement upon religious beliefs. It necessarily follows that internal church disputes relating to the disclosure of church business should not be subject to the legal concern of this court. However, when the Sixth and Izard Church of Christ decided to incorporate, it submitted itself to certain corporate laws of this state, thus opening the door to examination of their present quarrel in a legal setting.
This appeal was taken from the court’s interlocutory order compelling discovery. Since the discovery sought the very records and financial information that were the object of the lawsuit, appellants refused to comply, arguing that to do so would be to decide the case on the merits.
It should first be noted that this appeal was properly taken since the interlocutory order in effect determines the action and prevents a judgment from which an appeal might be taken. Ark. Rules of App. P. Rule 2(a)(2). If appellants comply with the discovery order and the trial court concludes after the trial that appellees were not entitled to the information they sought, appellants could not be placed in their former condition. See Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967), rehearing denied. Therefore, since we find the discovery order is the equivalent of a decision on the merits, the appellants need not release the information that is the subject of this lawsuit until a final ruling is obtained.
As to the motion to dismiss, the chancellor held that by virtue of the church taking advantage of the state’s laws, certain duties apply that have nothing to do with the constitution. This is not entirely correct. Certain statutory duties do apply, unless they conflict with a constitutional prohibition. The Arkansas law referred to by the chancellor was the statutory chapter on nonprofit corporations. Ark. Stat. Ann. §§ 64-1901 — 64-1921 (Repl. 1980). The appellees’ lawsuit is based on Ark. Stat. Ann. § 64-1913 which provides in pertinent part:
Each corporation shall keep correct and complete books and records of account. ... All books and records of a corporation may be inspected by any member for any proper purpose at any reasonable time.
It is clear that under § 64-1913 the appellees are not entitled to inspect the church’s records as a matter of right. Instead, they are allowed to so inspect upon a demonstration of a proper purpose. Since the complaint filed in this case contained allegations of abuse of power by the elders and impropriety in the selection of the board of directors, this threshold requirement is met.
The question now arises: Does the enforcement of statutory law, and in particular § 64-1913, override the religious doctrine, polity, or practice of the church as protected by the federal and state constitutions? Whether this action can be maintained at all is a close question. The appellants mount a vigorous argument that the tenets of the Church of Christ religion place authority for church administration solely in the hands of the elders and, pursuant to the dictates of their religion, the elders cannot be compelled to share this information with members of the congregation. Appellees argue with equal vigor that the Church of Christ is and has always been a congregational church and that as members of a congregational church, they have a right to inspect the records.
To claim the protection of the freedom of religion clauses of the U.S. and Arkansas Constitutions, the appellants’ position must be rooted in religious belief. Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972). The determination of what is a “religious belief’ is a delicate matter and state courts can only become involved in church disputes when “neutral principles” of law can be applied to resolve the dispute. Synanon Foundation, Inc. v. California, 444 U.S. 1307 (1979).
Although courts have no power to decide religious questions, that does not mean that courts will not assume jurisdiction over religious institutions. “Religious organizations do have temporal rights and duties with respect to properties and contracts which courts will recognize and enforce. . . Only with respect to these temporalities should courts recognize legal rights and duties and enforcement as limited to nonreligious policies.” Mount Zion Baptist Church et al. v. Second Baptist Church, 432 P.2d 328 (Nev. 1967).
Louisiana courts have considered this question and found that lawsuits can be maintained against incorporated churches for enforcement of a voting member’s statutory right to examine the records of the corporation. Bourgeois v. Landrum, 396 So.2d 1275 (La. 1981); Wilkerson v. Battiste, 393 So.2d 195 (La. App. 1980), rehearing denied. In so holding, the Louisiana court in Bourgeois, relied on the fact that judicial enforcement of this right did not entangle civil courts in questions of religious doctrine, polity or practice. The court acknowledged that:
First Amendment values are plainly jeopardized when church property litigation. . . turn [s] on the resolution by civil courts of controversies over religious doctrine and practice. . . .The First Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine . . . This principle applies with equal force to church disputes over church polity and church administration.
Here, appellants assert the very entanglement in questions of religious doctrine that the court found absent in the Louisiana cases. Their claim of first amendment protection rests on the fact that under Church of Christ doctrine, the decision whether to disclose church financial information rests with the elders. Clearly this reliance on church doctrine is jeopardized by the corporate status of the church. Although the trial judge found that corporate law and not religious doctrine applied, he did so based on the pleadings and without conducting a full evidentiary hearing. Without the benefit of such a hearing, we are unable on appeal, even with a de novo review, to weigh the sensitive overlap between church and state that is presented by this case. In addition, the parties are entitled to a hearing with the submission of evidence and testimony to satisfy the constitutional requirements of due process of law. Mendel v. Garner, 283 Ark. 473, 678 S.W.2d 759 (1984). Accordingly, we remand this case with instructions to conduct a hearing on the claim of first amendment protection versus the disclosure requirements of corporations.
We will address the appellants’ final argument because it will arise at the next hearing. Appellants contend that one of the appellees, Bob Scott, should not be allowed to represent himself in this proceeding because he served as attorney for the church when it incorporated.
Appellants present two arguments, one procedural and one substantive, and they are correct under both theories. The chancellor entered an order on April 16, 1985 which held:
Even though the Court granted Defendants’ Motion to Disqualify BOB SCOTT as Counsel for JOE BROWN and TIP NELMS, DDS, that Motion was granted only for the purpose of avoiding even the appearance of impropriety. The Court finds that standard would not be applicable to BOB SCOTT acting as Counsel for himself.
On April 26,1985, the court entered an order reconfirming its order of April 16. The appellants filed their notice of appeal to this court on that same day. On May 29,198 5 the court signed the following order:
Defendants are entitled to such clarification, good cause having been shown. Because to permit Bob Scott to represent anyone, even himself, in this cause would necessarily raise the appearance of impropriety in violation of the Code of Professional Responsibility, he may not act as counsel for or representative of any party, including himself.
Appellants filed a motion on July 1, 1985, for extension of time for filing the record on appeal, citing the May 29 order as the reason for the delay. The judge granted the extension and Scott received a copy of that motion. The initial record was filed with this court on July 23, 1985. On September 9, 1985, after the record was lodged and appellants’ brief was filed with the supreme court, Scott filed a motion in chancery court to strike the May 29 order. The trial judge held a hearing and entered an order granting the motion on September 26, 1985.
During the pendency of an appeal, mistakes in orders may be corrected by the trial court before the appeal is docketed in the appellate court or thereafter with leave of the appellate court. Ark. R. Civ. P. Rule 60(a). Neither the appellees nor the trial court sought the permission of this court before the hearing was held and the order stricken. Accordingly, the issue is not properly before the court and the May 29 order prohibiting Scott from representing any party, including himself, must stand.
Because we anticipate that on remand the trial court will correct the obvious discrepancy between the two orders by striking the May 29 order as he attempted to do already, we will also reach the merits of this issue.
The problem concerns the fact that Bob Scott, acting as counsel for the church and the elders, advised the church to incorporate and assisted them in that endeavor. The petition for incorporation lists the elders individually as petitioners and gives Bob Scott’s name as their attorney. Appellants maintain that it involves at least the appearance of impropriety to allow Bob Scott to now represent himself and sue the elders based on the church’s corporate status. The trial court found in its April 16 and 26 orders that no evidence was presented as to any conflict of interest since Scott represented the church and not the individual elders. We disagree.
Since Scott represented the elders in their capacity as petitioners for incorporation that was sufficient representation to present a conflict, or in the least, an appearance of impropriety.
The American Bar Association’s Code of Professional Responsibility provides that a lawyer should preserve the confidences and secrets of a client, Canon 4. A lawyer should exercise independent professional judgment on behalf of a client, Canon 5. A lawyer should avoid even the appearance of professional impropriety, Canon 9. Courts will disqualify counsel in an adversary proceeding when:
(1) the moving party was previously represented by the attorney whose disqualification he now seeks; (2) the matters embraced within the pending suit are substantially related to the matters or the cause of action for which the attorney previously represented the moving party; and (3) the attorney is representing an adversary of the movant party in the pending suit.
Heathcoat v. Santa Fe Internat’l Corp., 532 F. Supp. 961 (E.D. Ark. 1982). If the two actions are found to be substantially related, a presumption arises that the former client’s confidences were disclosed to the former attorney, which confidences the attorney might use to the detriment of the movant in the current action. Id. The court will entertain this presumption and will not inquire into the nature and extent of the confidences. The confidential disclosures, whether actual or presumed, necessitate the disqualification of the attorney when he represents an adverse interest in a related matter. State of Ark. v. Dean Foods Products Co., Inc., 605 F.2d 380 (8th Cir. 1979).
Applying these rules to the case at bar, Scott previously represented the elders as petitioners for incorporation; the present lawsuit concerns the obligations of the church under the articles of incorporation — a substantially related matter; and Scott is representing himself as an adversary party to the church and the elders. We will presume that confidential disclosures were made to Scott by the elders and that these might be used to the elders’ detriment in the current action. Accordingly, Scott is disqualified from any participation in this lawsuit as an attorney, whether representing himself or others. A lawyer is not permitted to use information acquired through representation for his own purposes. EC-4-5. Although this court cannot restrict Scott’s constitutional right to be a party litigant, he is admonished not to make personal use of any information imparted to him as a result of his prior representation of the church.
Reversed and remanded for proceedings not inconsistent with this opinion.
Purtle, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
Appellant filed an Ark. R. Crim. P. Rule 37 motion to vacate his negotiated pleas of guilty to three counts of delivery of a controlled substance, one count of conspiracy to commit theft of property, and one count of driving while intoxicated. In his petition, appellant alleged that his guilty pleas were not knowingly, intelligently or voluntarily entered because he was denied effective assistance of counsel and was coerced by the trial court’s denial of his motion for continuance. In addition, he claims the court erred by not establishing a factual basis for his guilty pleas. The trial court, without a hearing, issued written findings of fact based on the files and record, denying postconviction relief. We find that the trial court’s decision was not clearly against the preponderance of the evidence and affirm. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(e).
Rule37.3(a) provides that “[i]f the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.”
Appellant contends his guilty plea was not entered intelligently and voluntarily and with the advice of competent counsel. He therefore has the burden of showing that the advice he received from his attorney was not within the range of competence demanded from attorneys in criminal cases. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982).
In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel. It provides: (1) “ [w] hen a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that the counsel’s representation fell below an objective standard of reasonableness” and (2) “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In Hill v. Lockhart, _ U.S _, 106 S. Ct. 366 (1985) the two-part Strickland v. Washington test was made applicable to challenges to guilty pleas based on ineffective assistance of counsel.
In the context of guilty pleas, the Supreme Court stated in Hill:
[I] n order to satisfy the “prejudice” requirement [part two of Strickland], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
This court stated in Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984), “A defendant whose conviction is based upon a plea of guilty normally will have difficulty proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.”
The prejudice requirement has not been met in this instance. We do not find it necessary to determine whether there may have been ineffective assistance on the part of counsel because the petitioner’s allegations are insufficient to satisfy the Strickland requirement of “prejudice”. See also, Welch v. State, 283 Ark. 281, 675 S.W.2d 641 (1984), rehearing denied. Likewise, the record and files do not support the proposition that under any circumstance the petitioner would have pled not guilty and insisted on going to trial, nor does petitioner allege any special consideration that might support this conclusion. Because the petitioner fails to allege the kind of “prejudice” necessary to satisfy the second half of the Strickland test, the trial court did not err in declining to hold a hearing on petitioner’s ineffective assistance of counsel claim.
The appellant also claims that his guilty pleas were not voluntarily entered because he was coerced by the trial court’s denial of his motion for continuance. The appellant does not challenge the merits of the denial of his motion for continuance. Rather, he argues it was a coercive factor in his decision to plead guilty. Appellant maintains that, because of the denial, he either had to go to trial with an unprepared attorney or plead guilty.
The denial of a motion for continuance rests in the sound discretion of the trial court and we do not reverse absent an abuse of that discretion. Clark v. State, 260 Ark. 479, 541 S.W.2d 683 (1976). Here the record demonstrates the appellant had eleven months to secure counsel and prepare for trial, and the trial court found that appellant had retained counsel until about a month before the trial date. At that time, appellant notified the court that his attorney was no longer representing him and that he would like time to hire a new attorney. The court contacted appellant to see if he had secured representation and told him that a public defender could be appointed for him. Subsequently a public defender was appointed.
We agree with the trial court that the record illustrates that any delay in obtaining counsel was caused by appellant. This fact, coupled with appellant’s election to plead guilty rather than go to trial, renders this argument meritless.
Appellant’s final contention is that the court erred in its failure to establish a factual basis for his guilty pleas.
Ark. R. Crim. P. Rule 24.6 provides: “The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.” This rule is mandatory. Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).
Appellant signed a written plea statement indicating that he understood the charges against him and the consequences of pleading guilty, that his plea had not been induced by any “promises or threats”, that he realized the trial judge would decide what his sentence would be if he pled guilty, and that he had discussed the plea agreement with his attorney and was satisfied with his attorney’s advice. The last four lines of the plea agreement, just above the petitioner’s signature, read: “I have read everything in this paper including my lawyer’s certificate below. I understand what is being told me, what my rights are, and the questions that have been asked. My answer is ‘yes’ to all questions. I know what I am doing and am voluntarily pleading guilty because I am guilty as charged.”
In reviewing this plea statement with the appellant and, in particular, the sentencing aspects, the following scenario occurred:
THE COURT: Now, is this in accordance with your understanding with Mr. Marquette as to what the State would recommend if you should enter your plea?
MR. JONES: Yes, sir.
THE COURT: Again, that’s the Court would sentence you to ten years and suspend four of that on each of the charges.
Has anyone promised you anything other than a ten year sentence before your suspended, if you should enter your plea?
MR. JONES: No, sir.
THE COURT: Certainly, you are aware of your right to have a trial by a Jury if you should so wish?
MR. JONES: Yes.
THE COURT: Has there been any threats or coercion or force of any kind to induce you to enter your plea before this Court?
MR. JONES: No, sir.
THE COURT: Is there a factual basis for the plea?
MR. JONES: Yes, sir, in each case.
THE COURT: Mr. Marquette, are you satisfied that there is a factual basis?
MR. MARQUETTE: Yes, sir.
Thereafter, the appellant interposed a plea of guilty to each case, by voicing his plea of guilty, the case number, the general nature of the charge in each case, and the date of the charge. After the appellant’s declarations, the court stated the sentence upon each charge and then asked appellant: “Now, is that in accordance with your understanding, Wendell, as to what the sentence the court would impose if you should enter your pleas?” Appellant replied, “Yes, sir.” The court then imposed the judgment and sentence.
Under these circumstances, we find that the trial court substantially complied with Rule 24.6. See Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977).
Although we find the trial court in substantial compliance with Rule 24.6, this court has observed a growing trend among trial judges to make casual and indirect inquiry as to the factual basis for pleas. Inasmuch as Rule 24.5 requires the trial court to address the defendant personally to determine whether or not any force or threats, or any promises apart from the plea agreement were used to induce the plea, the trial court could, and should, comply with Rule 24.6 by continuing a direct inquiry of the defendant as to the factual basis for his plea. This would, for all practical purposes, eliminate problems of compliance with this rule requiring inquiry as to the factual basis for a plea.
Nevertheless, the record conclusively shows that this peti tioner is not entitled to a hearing on any issue raised in his motion.
Affirmed.
Purtle, J., not participating. | [
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JIM HANNAH, Chief Justice.
This appeal involves a dispute over the ownership of church property located at 2311 Bailey Road, in Little Rock. Appellants Arkansas Annual Conference of the African Methodist Episcopal Church, Inc. (Arkansas AME) and African Methodist Episcopal Church, Inc. (National AME), collectively referred to as AME, appeal the judgment of the Pulaski County Circuit Court granting a petition to quiet title in appellee New Direction Praise and Worship Center (New Direction) and ordering the return of personal property, including a 1999 Dodge van. AME also appeals the circuit court’s denial of its motion for su-persedeas bond. We affirm the circuit court.
The real property that is the subject of this dispute is described as follows:
Starting at the existing NW corner of the NE 1/4 of the NW 1/4, Section 21, Township 1 South, Range 12 West, Pulaski County, Arkansas, and run thence East 158.7 feet to the point of beginning; from the point thus established run thence South 208.7 feet; thence East 158.7 feet; thence North 208.7 feet; thence West 158.7 feet to the point of beginning, containing 3/4 acres, more or less.
On December 27, 1969, Will Bailey, the owner of the real property, contracted to sell the real property to the Sand Hill AME Church (Sand Hill) for the price of $750, of which $500 was paid at the time of the contract of sale and $250 was payable in three years. On July 15, 1971, Geraldine Jones, as the administratrix of the Estate of Will Bailey, Deceased, conveyed by deed the real property to “George Bailey, Fred Jones, and Harris Bailey as Trustees of the Sand Hill AME Church, and to their successors in office.”
In 1971, the membership of Sand Hill consisted of members of the Bailey family. Will Bailey was the uncle of Geraldine Jones, the administratrix of his estate. Two of the trustees named as grantees in the administratrix deed, George Bailey and Harris Bailey, were nephews of Will Bailey and brothers of Geraldine Jones. The remaining trustee named as grantee in the administratrix deed, Fred Jones, was the husband of Geraldine Jones.
Between 1971 and 1981, the members of Sand Hill saved to build a meeting house on the real property. Through the volunteer labor of relatives of the Bailey family, a concrete block meeting house was constructed in 1981. Vivian Nooner and Brenda Kay Webb, who were members of the congregation between 1971 and 1981, both testified that they could not recall any financial assistance from the Arkansas AME or the National AME for the purchase of the real property or the construction of the meeting house. Revered Eugene Brannon, the presiding elder of the Little Rock District of the AME, testified that he recalled a rally of area congregations of AME churches to raise funds for the purchase of the real property at issue and a second rally for the construction of the meeting house. Reverend Brannon stated that he could not, however, recall the amount of funds raised for the benefit of Sand Hill.
In 1981, the membership of Sand Hill still consisted of members of the Bailey family. According to Nooner, of the trustees of Sand Hill shown on the cornerstone of the meeting house constructed in 1981, all were members of the Bailey family. Nooner stated that of the stewards listed on the cornerstone, all but one, the pastor’s wife, were members of the Bailey family.
No testimony or documents were introduced by any party regarding the formation of Sand Hill or its initial connection with the National AME. Nooner testified that, while Sand Hill accepted pastors from Arkansas AME, it did not associate exclusively or even primarily with other AME churches. She stated that many of the churches with which Sand Hill associated were Baptist churches.
Between 1971 and 1995, the membership of Sand Hill numbered approximately ten to twelve members. Beginning in 1995 and continuing until 2004, the presence of a new pastor, Reverend Bowers, significantly increased the membership, and the number of members eventually grew to between fifty and sixty. When Reverend Bowers left Sand Hill in 2004, the membership again decreased to approximately ten to twelve members.
By August 2005, Sand Hill was encountering financial difficulties. AME policy requires AME churches to pay assessments on a quarterly basis, with the amount of assessments based on the number of members. Although its membership had decreased following Reverend Bowers’s departure, the Arkansas AME did not reduce Sand Hill’s quarterly financial obligations. By August 31, 2005, Sand Hill had only $1.26 left in its bank account.
On October 9, 2005, ten members of Sand Hill met and voted unanimously to disassociate from the AME. Thereafter, the members continued to meet for worship service in the meeting house on the real property. The members also met again to organize a new church and voted unanimously to incorporate a new church. The trustees of the congregation incorporated New Direction Praise and Worship Center, Inc., on November 15, 2005. The members also voted unanimously to deed to New Direction title to the real property and to transfer title in a 1999 Dodge van to New Direction. A quitclaim deed was prepared by the trustees of New Direction on November 17, 2005, and the deed was filed of record on November 18, 2005. The members were unable to find the title to the Dodge van, so title was not then transferred to New Direction.
On November 26, 2005, the members of New Direction invited Reverend Brannon, the presiding elder of the Little Rock District of the AME, to meet with them at the property. They delivered a -written notice to Reverend Brannon, informing him that the members of the congregation formerly known as Sand Hill AME Church were no longer affiliated or associated with AME. Reverend Brannon asked for a key to the building, and one of the members gave him a key. Other members retained their keys, but when they later returned to the meeting house, they found that their keys no longer opened the door. Arkansas AME subsequently sent an AME minister in training to conduct services in the meeting house. New Direction then brought a civil action for ejectment, quiet title, and replevin. The circuit court found in New Direction’s favor, and AME now brings this appeal.
Subject-Matter Jurisdiction and the Neutral-Principles Approach
The first issue that must be decided is whether the circuit court had subject-matter jurisdiction to resolve this dispute over church property. AME claims that the circuit court was without subject-matter jurisdiction because this matter could not be decided by neutral principles of law without resort to interpretation of church religious beliefs, practices, customs, organization, and polity. AME contends that the circuit court’s decision is in violation of the Establishment Clause of the United States Constitution, as well as the similar guarantees of article 2, sections 24 and 25 of the Arkansas Constitution. New Direction asserts that the circuit court properly exercised jurisdiction over this dispute about church property because the dispute could be decided by applying neutral principles of law.
Where the existence of subject-matter jurisdiction is a question of constitutional interpretation, the standard of review is de novo. Viravonga v. Wat Buddha Samakitham, 372 Ark. 562, 279 S.W.3d 44 (2008); Weiss v. McLemore, 371 Ark. 538, 268 S.W.3d 897 (2007). In Viravonga, we stated:
Both the United States Constitution and the Arkansas Constitution prohibit the courts from becoming involved in disputes between members of a religious organization that are “essentially religious in nature,” because the resolution of such disputes “is more properly reserved to the church.” Gipson v. Brown, 295 Ark. 371, 374, 749 S.W.2d 297, 298 (1988).
Nonetheless, “[i]t is unquestionably the duty of the courts to decide legal questions involving the ownership and control of church property.” Holiman v. Dovers, 236 Ark. 211, 219, 366 S.W.2d 197, 204 (1963) (supplemental opinion denying rehearing). As the United States Supreme Court has noted, “[t]he State has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively.” Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). Yet, even when a property dispute is involved, courts must refrain from settling the dispute “on the basis of religious doctrine and practice” and instead apply only “neutral principles of law.” Id. at 602-03, 99 S.Ct. 3020; see also Ark. Presbytery of Cumberland Presbyterian Church v. Hudson, 344 Ark. 332, 339, 40 S.W.3d 301, 306 (2001) (expressly adopting the United States Supreme Court’s neutral-principles approach); Gipson, 295 Ark. at 377, 749 S.W.2d at 300 (applying the neutral-principles-of-law analysis to determine whether there was jurisdiction over an internal church dispute).
While “it is impermissible for the civil courts to substitute their own interpretation of the doctrine of a religious organization for the interpretation of the religious organization,” Belin, 315 Ark. at 67, 864 S.W.2d at 841, a court may nonetheless have to examine documents of a partially religious nature, such as church constitutions, in resolving a property dispute. Jones, 443 U.S. at 604, 99 S.Ct. 3020. For example, a court can look at “(1) the language of the deeds; (2) the terms of the local church charters; (3) the state statutes governing the holding of church property; and (4) the provisions in the constitution of the general church concerning the ownership and control of church property” in determining whether a local church or one of its governing bodies holds title to church property. Hudson, 344 Ark. at 338, 40 S.W.3d at 306 (citing Jones, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775)....
The United States Supreme Court has acknowledged that applying the neutral-principles approach to an examination of documents relating to a religious institution is not “wholly free of difficulty.” Jones, 443 U.S. at 604, 99 S.Ct. 3020. In performing its examination, the court must be careful to scrutinize such documents in “purely secular terms,” deferring to the religious institution itself for the resolution of doctrinal issues. Id.; see Hudson, 344 Ark. at 339, 40 S.W.3d at 306-07.
Viravonga, 372 Ark. at 568-71, 279 S.W.3d at 50 (footnotes omitted).
While it is clear that civil courts have subject-matter jurisdiction to hear cases involving church property disputes, courts must settle the dispute by applying neutral principles of law. We must now determine whether the circuit court did so in this case.
The first element of the neutral-principles approach is to review the language of the deed. When we are called upon to construe deeds and other writings, we are concerned primarily with ascertaining the intention of the parties, and such writings will be examined from their four corners for the purpose of ascertaining that intent from the language employed. Hudson, supra. In reviewing instruments, our first duty is to give effect to every word, sentence, and provision of a deed where possible to do so. Id. We -will not resort to rules of construction when a deed is clear and contains no ambiguities, but only when its language is ambiguous, uncertain, or doubtful. Id. Here, the language of the deed indicates that the local trustees of Sand Hill hold title to the property. As previously stated, on July 15, 1971, Geraldine Jones, as the administra-trix of the Estate of Will Bailey, Deceased, conveyed by deed the real property to “George Bailey, Fred Jones, and Harris Bailey as Trustees of the Sand Hill AME Church, and to their successors in office.” (Emphasis added.) Nothing in the language of the deed reflects that Sand Hill was held in trust for Arkansas AME or National AME.
As to the second element, the terms of local church charters, AME states that the 1968 edition of The Doctrine and Discipline of the African Methodist Episcopal Church (Book of Discipline) functions as both its charter and its general church constitution; therefore, our review of the second element will also serve as our review of the fourth element. Section 2 of the Book of Discipline, titled General Church Property, provides, in relevant part:
1. For the security of our meeting houses and the premises belonging thereunto, let the following plan of a deed of settlement be brought into effect in all possible cases wherever the law will permit it in a State.
2. If necessary, each Annual Conference may make such modifications in the deed as may be required by the laws of any State, so as to firmly secure the premises to the African Methodist Episcopal Church.
3. No personal or real property whatsoever of the A.M.E. Church in any foreign district or parts thereof shall be purchased, disposed of, sold, or otherwise encumbered except by the written consent of the presiding bishop and trustees elected by the Annual Conference in which the property is located.
4. The incorporation of all our churches, where the law will permit it, should be attended to as soon as possible. And in every corporation of the A.M.E. Church the pastor shall be president of the corporation and of the board of trustees, and the method of electing trustees shall be the same as prescribed in the Book of Discipline. Every pastor shall see that the provision is a part of the articles of incorporation.
Also included in Section 2 is a form for a trust deed for local church property that provided the property was to be held in trust for the use of the members of the National AME under the rules of the Book of Discipline. In addition, the form for a trust deed provided:
Whereas some of the states and territories (and countries) have special acts on their statue [sic] book governing religious bodies, therefore the meaning and intent of this chapter wherever it refers to the law of the State or Territory is to be subject to the said state law and not to any individual church corporation that is now or may be incorporated.
The record reveals that Sand Hill was not incorporated. National AME did not introduce any evidence that it was involved in the purchase of the property. Arkansas AME did not introduce any evidence that it approved Sand Hill’s purchase of the real property in 1969, at the time of the contract of sale, or in 1971, at the time of the delivery of the administratrix deed. In addition, the administratrix deed did not follow the form of the trust deed included in the Book of Discipline.
We next consider the third element, Arkansas statutes governing the holding of church property. Arkansas Code Annotated section 18-11-201 (Repl.2003) provides:
All lands and tenements, not exceeding forty (40) acres, that have been, or hereafter may be, conveyed by purchase to any person as trustee in trust for the use of any religious society within this state, either for a meeting house, burying ground, campground, or residence for their preacher, shall descend with the improvements and appurtenances in perpetual succession in trust to the trustee or trustees as shall, from time to time, be elected or appointed by any religious society, according to the rules and regulations of the society.
Likewise, Arkansas Code Annotated section 18-11-202 (Repl.2003) provides:
The trustee or trustees of any religious society shall have the same power to defend and prosecute suits at law or in equity and do all other acts for the protection, improvement, and preservation of trust property as individuals may do in relation to their individual property-
New Direction points to statutory law regarding trusts. Pursuant to Arkansas Code Annotated section 28-73-402(a) (Supp.2007), a trust is created only if:
(1) the settlor has capacity to create a trust;
(2) the settlor indicates an intention to create the trust;
(3) the trust has a definite beneficiary or is:
(A) a charitable trust;
(B) a trust for the care of an animal, as provided in § 28-73-408; or
(C) a trust for a noncharitable purpose, as provided in § 28-73-409;
(4) the trustee has duties to perform; and
(5) the same person is not the sole trustee and sole beneficiary.
The language of the 1971 deed indicates that Will Bailey intended to create a trust for Sand Hill AME Church, see Arkansas Code Annotated section 28-73-402(a), which he was authorized to do pursuant to Arkansas Code Annotated section 18 — 11— 201 (Repl.2003). Nothing in the language of the deed suggests that Will Bailey had the intention of creating a trust in favor of either the National AME or the Arkansas AME. Neither the National AME nor the Arkansas AME had an ownership interest in the property at the time of the conveyance, and neither was a party to the transaction.
Based upon the application of our neutral-principles approach and based upon our de novo review of the language of the 1971 deed, the provisions in the Book of Discipline, and Arkansas statutory law governing property and trusts, we hold that the circuit court did not err in quieting title in favor of New Direction, ordering AME’s ejectment, and concluding that New Direction was entitled to replevin of the personal property located on the real property and the 1999 Dodge van.
Validity of the 2005 Deed
AME next contends that, even assuming that the trustees of Sand Hill had the authority to convey the property to New Direction, the conveyance must fail because the deed was invalid. The circuit court concluded, and we agree, that AME had no right, title, or interest in the real property at issue. Accordingly, AME lacks standing to challenge the November 2005 conveyance of the property to New Direction. As such, we do not address AME’s arguments on this point.
Supersedeas Bond
AME contends that the circuit court erred in denying AME’s posttrial motion for setting of a supersedeas bond to stay proceeding pending appeal. Because we affirm the circuit court’s judgment in favor of New Direction, AME’s argument regarding the setting of a super-sedeas bond is moot.
Motions for Award of Costs and Attorneys’ Fees on Appeal
New Direction filed a Motion for Award of Costs and Attorneys’ Fees Incurred By Reason of Appellants’ Insufficient Abstract and Addendum. AME filed a response and, additionally, it filed a Motion for Award of Costs and Attorneys’ Fees Incurred by Reason of Appellee’s Insufficient Abstract and Addendum. Pursuant to Arkansas Supreme Court Rule 4-2(b)(l) (2008), “[w]hen the case is considered on its merits, the Court may upon motion impose or withhold costs, including attorney fees, to compensate either party for the other party’s noncompliance with this Rule.” After considering the merits of this case, we do not believe that either of the parties’ abstracts and adden-dums are insufficient to the extent that costs should be imposed by this court. Accordingly, we deny both motions.
Affirmed.
. The 1968 edition was in effect at the time of the 1971 conveyance to Sand Hill. According to the testimony of Reverend Brannon, National AME’s plan of title and governance of property of the local AME congregations was essentially carried forward without change in the editions of the Book of Discipline that were published every four years after 1968. At oral argument, counsel for AME stated that, while the 1968 edition of the Book of Discipline may have governed the original transaction, the Book of Discipline was later amended to include a provision stating that all local church property would be held in trust for the National AME. Counsel asserted that the members of Sand Hill "consented to the amendment” by their silence. Nevertheless, counsel conceded that AME did not make this argument before the circuit court. | [
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ELANA CUNNINGHAM WILLS, Justice.
Wesley and Tina Seth appeal from an order of the Sebastian County Circuit Court granting St. Edward Mercy Medical Center’s (St.Edward) motion for summary judgment on the basis of the charitable immunity doctrine. The Seths first argue that the trial court erred because St. Edward waived any claim of charitable immunity from suit or liability and that the principle of estoppel prevents application of the defense to St. Edward. Second, the Seths argue that the trial court erred in retroactively applying this court’s decision in Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), and by refusing to allow amendment of their complaint to name St. Edward’s pooled liability fund owner and/or its commercial liability insurer as proper party defendants.
On February 18, 2004, the Seths filed a medical negligence suit against St. Edward, Arkansas Heart Center, Emergency Medicine Associates, and two doctors. The complaint also named St. Edward’s unknown insurer in the event that St. Edward asserted a charitable immunity defense, and stated in paragraph seven of the complaint that St. Edward “may claim immunity from suit or tort liability as a charitable or non-profit entity,” and “in such case, John Doe Insurance Company would be the appropriate Defendant under the Arkansas direct action statute.” St. Edward filed an answer to the Seth’s complaint on March 16, 2004, averring that it was a nonprofit corporation, denying negligence or causation, and asserting certain affirmative defenses. However, St. Edward specifically responded to paragraph seven of the Seths’ complaint in its answer by stating, “No response from this defendant is required to paragraph 7 of the Complaint. To the extent any response is required, the allegations in paragraph 7 are denied.”
The Seths filed a motion for partial summary judgment on November 28, 2005, asserting that no factual issues remained to preclude determination of St. Edward’s negligence. St. Edward filed a response to the answer on December 30, 2005, contending that genuine issues of material fact remained, but once again did not raise the defense of charitable immunity. The trial court denied the Seths’ motion.
On January 24, 2007, St. Edward filed an amended answer to the Seths’ complaint, asserting for the first time that it was entitled to charitable immunity from liability and suit. On the same date, St. Edward also filed a motion for summary judgment,, requesting that the trial court dismiss the complaint against it because it was a charitable entity as a matter of law and, therefore, immune from tort liability. The Seths filed a response to St. Edward’s motion for summary judgment, arguing that Arkansas law at the time the action arose and the complaint was filed required St. Edward to be named as a defendant because it was not immune from suit. Further, the Seths contended that St. Edward never asserted the defense of immunity from suit in its original answer or the amended answer, thus waiving such defense under Ark. R. Civ. P. 8 and 12 and under the principle of estoppel. The Seths also argued that “[n]ew law,” presumably Low, supra, should not be applied retroactively to this case. Alternatively, the Seths argued that if St. Edward was dismissed from the complaint, the court should allow substitution of Sisters of Mercy, a Missouri corporation that managed a pooled liability fund for St. Edward, and/or St. Edward’s separate commercial liability insurer as proper party defendants under the direct-action statute. The Seths also argued that they should be allowed to amend their complaint to add the individual employees of St. Edward as defendants under Ark. R. Civ. P. 15. The Seths did not file a separate motion to strike St. Edward’s amended answer as provided by Rule 15(a).
The trial court issued an order on May 9, 2007, granting St. Edward’s motion for summary judgment “[p]ursuant to the case law as set forth in George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Low v. Insurance Co. of North America, et al., 364 Ark. 427, 220 S.W.3d 670 (2005) and Sawders v. St. Joseph’s Mercy Health Center, 368 Ark. 466, 247 S.W.3d 514 (2007) and the cases and authorities cited in the respective cases.” The Seths filed a timely notice of appeal after the trial court granted the Seths’ motion to voluntarily dismiss all remaining defendants.
This court’s standard of review for summary judgment has been often stated as follows:
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. On appeal, we determine if summary judgment was appropriate based on whether the eviden-tiary items presented by the moving party in support of its motion leave a material question of fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties.
Sykes v. Williams, 373 Ark. 236, 240, 283 S.W.3d 209, 213 (2008).
The Seths first argue that the trial court erred in granting St. Edward’s motion for summary judgment on the basis of charitable immunity because St. Edward waived any defense based on its charitable status. Specifically, the Seths’ complaint stated that St. Edward “may claim immunity from suit or tort liability as a charitable or non-profit entity,” and “in such case, John Doe Insurance Company would be the appropriate Defendant under the Arkansas direct action statute.” After asserting that it was a nonprofit corporation, St. Edward responded to this paragraph of the complaint by stating, “No response from this defendant is required to paragraph 7 of the Complaint. To the extent any response is required, the allegations in paragraph 7 are denied.” Accordingly, the Seths assert that St. Edward denied that it would claim immunity from either suit or liability as a charitable entity, thus waiving the charitable immunity defense it later raised in the amended answer.
Under Ark. R. Civ. P. 8(c), “an affirmative defense must be set forth in the defendant’s responsive pleading.” Poff v. Brown, 374 Ark. 453, 454, 288 S.W.3d 620, 622 (2008). Although Rule 8 lists a number of affirmative defenses, “the list is not exhaustive and includes ‘any matter constituting an avoidance or affirmative defense.’ ” Id. The “failure to plead an affirmative defense can result in the waiver and exclusion of the defense from the case.” Felton v. Rebsamen Med. Ctr., 373 Ark. 472, 284 S.W.3d 486 (2008). This court has clearly stated that “charitable immunity is an affirmative defense that must be specifically pled.” Neal v. Sparks Reg’l Med. Ctr., 375 Ark. 46, 289 S.W.3d 8 (2008) (citing Felton, supra).
St. Edward did not affirmatively plead charitable immunity in its original answer, but contends that it may amend its answer under Ark. R. Civ. P. 12 and 15, because Rule 15 allows a pleading to be amended at any time, and charitable immunity is not a defense that is waived if not asserted in an original responsive pleading under Rule 12(h)(1).
Neal, supra, involved a similar situation as that presented in this case. The appellants in Neal filed a medical negligence action against Sparks Regional Medical Center (Sparks) in 2005. Under Arkansas precedent at the time the suit was filed against Sparks, a charitable entity was immune from liability but not suit; therefore, the appellants were required to file suit against Sparks, rather than against Sparks and its liability carrier. See Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002); see also Scamardo v. daggers, 356 Ark. 236, 149 S.W.3d 311 (2004) (declining to overrule Clayborn). Sparks filed an answer on September 8, 2005, stating that it was a “not-for-profit Arkansas corporation,” but did not assert that it was a charitable entity or assert the defense of charitable immunity as to either liability or suit.
In December 2005, this court handed down its decision in Low, supra, holding that a qualified charitable entity was immune from suit as well as liability, and that the Arkansas direct-action statute, Ark.Code Ann. § 23-79-210, required an action to be filed against the charitable entity’s liability carrier. On January 26, 2007, Sparks filed an amended answer stating for the first time that it was entitled to charitable immunity. The appellants responded by filing a motion to strike Sparks’s amended answer as prejudicial, but the trial court denied the motion, concluding that the amended answer did not raise any additional defenses, and was not, therefore, prejudicial. Sparks then filed a motion for summary judgment, and the appellants responded by requesting that they be allowed to substitute Sparks’s liability carrier as the proper party defendant in an amended complaint. The trial court denied the request under Ark. R. Civ. P. 15(c) because the appellant had not proven that the liability carrier had knowledge of the suit within 120 days after it was filed, nor that it knew or should have known that the appellants would have brought the suit against it but for a mis take concerning the identity of the proper party.
On appeal, this court first held that the trial court erred in ruling that Sparks’s amended answer did not raise any new defenses, stating that “[mjerely asserting its status as a not-for-profit corporation is not equivalent to specifically raising the affirmative defense of charitable immunity, as not all not-for-profit organizations will be immune under the doctrine” Neal, 375 Ark. at 51, 289 S.W.3d at 11. We therefore held that charitable immunity had not been affirmatively pled in the original answer. This court further held that the trial court erred in allowing the amended answer because it resulted in prejudice to the appellants. At the time Sparks filed its original answer, “the appellants were still within the 120-day period for notifying [Sparks’s liability carrier] of the suit for relation-back purposes under Ark. R. Civ. P. 15(c).” Id. However, when Sparks filed its amended answer asserting charitable immunity for the first time, it was too late to substitute the liability carrier as the proper party.
The primary distinguishing factor between Neal and this case is that in Neal, the appellants filed a motion to strike Sparks’s amended answer because it was prejudicial. Under Ark. R. Civ. P. 15(a) (emphasis added), “[w]ith the exception of defenses mentioned in Ark. R. Civ. P. 12(h)(1), a party may amend his pleadings at any time without leave of the court,” unless, “upon motion of an opposing party, the court determines prejudice would result.” -If the court finds that prejudice results, it may strike the amended pleading. Thus, charitable immunity is an affirmative defense that must be specifically asserted in a responsive pleading under Ark. R. Civ. P. 8. Because it is not a defense listed in Rule 12(h)(1), however, it may be raised in an amended answer under Ark. R. Civ. P. 15, unless there is a motion to strike the pleading, and the court finds that prejudice results. Here, when St. Edward filed its amended answer and motion for summary judgment on the same day, asserting charitable immunity for the first time, the Seths only filed a response to the motion for summary judgment. They did not file a motion to strike the amended answer as prejudicial. Accordingly, waiver of the defense of charitable immunity does not result under our Rules of Civil Procedure.
In addition to waiver, the Seths argue in their first point for reversal that St. Edwards was estopped from asserting the charitable immunity defense based on the Seths’ reliance on St. Edward’s failure to assert charitable immunity in its original answer. However, this argument is not well developed. It consists of one sentence in the Seths’ brief and includes no citations to authority or discussion of specific application of the factors of estop-pel. This court has repeatedly held that “something more than a mere assertion of an argument in the pleadings is required to preserve an issue for appellate review,” Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 188, 60 S.W.3d 458, 461 (2001), and that we will not consider arguments without convincing argument or citations to authority, Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).
For their second point on appeal, the Seths argue that “the trial court erred when it determined it would apply Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005) retroactively.” However, this one sentence is the extent of the argument. For the same reasons cited above on the issue of estoppel, we will not consider this argument. The Seths also argue that the trial court erred by refusing to allow them to amend their complaint to name Sisters of Mercy and/or St. Edwards commercial excess liability insurer as proper party defendants. The trial court never ruled on this issue, raised in the Seths’ response to the motion for summary judgment, and this court “will not review an issue where the circuit court has not first decided it.” Sowders v. St. Joseph’s Mercy Health Ctr., 368 Ark. 466, 477, 247 S.W.3d 514, 522 (2007).
Affirmed.
. St. Edward also reserved the right to "file additional pleadings or amendments to its pleadings,” and to "assert additional defenses or claims.”
. This court issued the decision in Low, supra, on December 15, 2005, that held charitable entities are immune from suit and, therefore, the proper party defendant in a claim against a charitable entity is the entity’s liability insurer. A petition for rehearing was filed in Low on January 3, 2005, and the court issued its mandate on January 19, 2005.
.St. Edward claimed both immunity from suit and liability in its amended answer. In its motion for summary judgment and brief in support, St. Edward asserted that it is immune from liability rather than suit. However, St. Edward did cite Low, supra, in its brief in support and Low’s holding that a charitable entity is immune from liability and suit.
. The Seths, “for the purposes of this appeal,” do not challenge St. Edward's status as charitable entity.
. Ark. R. Civ. P 12(h)(l)(emphasis added) provides in pertinent part:
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading.
. Rule 15(c) provides that:
An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
. Ark. R. Civ. P. 15(a) provides that "a party may amend his pleadings at any time without leave of the court,” with the exception of the defenses listed in Ark. R. Civ. P. 12(h)(1). | [
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PER CURIAM.
The State of Arkansas appeals from the circuit court’s grant of Appellee John Brown’s Rule 37 petition. Because the State submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule 4-2(a)(8) (2008), we order rebriefing.
Rule 4-2(a)(8) provides, in pertinent part:
Following the signature and certificate of service, the appellant’s brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.
Ark. Sup.Ct. R. 4-2(a)(8). The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Arkansas Supreme Court Rule 4-2(b)(3):
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Ark. Sup.Ct. R. 4-2(b)(3).
Here, the State’s brief is deficient due to the fact that its addendum lacks relevant pleadings essential to an understanding of the case. The record reveals that at the conclusion of the hearing on Brown’s Rule 37 petition, the circuit court requested that the parties submit posthearing briefs in lieu of oral arguments. The posthearing briefs appear in the record but do not appear in the State’s addendum.
Because the State has failed to comply with our rules, we order it to file a substituted abstract, addendum, and brief within fifteen days from the date of entry of this order. If the State fails to do so within the prescribed time, the order appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, addendum, and brief, Brown shall have an opportunity to revise or supplement his brief in the time prescribed by the clerk.
Rebriefing ordered. | [
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PER CURIAM.
In a per curiam opinion, handed down on November 13, 2008, we ordered the appellant, Ledell Lee, to file a substituted brief because the brief he had filed did not comply with Ark. Sup.Ct. R. 4-2(a) (2008). Lee, through his attorneys, has filed a substituted brief; however, it still does not comply with our rules.
This case has a long procedural history before this court, which we detailed in the November 13, 2008 opinion. To restate, Lee was convicted of capital murder in 1993 and was sentenced to death. This court affirmed his conviction and sentence in Lee v. State, 327 Ark. 692, 942 S.W.2d 231, cert. denied, 522 U.S. 1002, 118 S.Ct. 572, 139 L.Ed.2d 412 (1997). Lee filed a petition for postconviction relief pursuant to Ark. R.Crim. P. 37, alleging that his trial attorneys rendered ineffective assistance of counsel, during both the guilt and penalty phases of his trial. After holding hearings, in January and March 1999, the circuit court denied Lee’s petition. This court affirmed in Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). In 2006, we granted a motion by Lee to recall the mandate in that case because the record indicated that he had received ineffective assistance of counsel during the first Rule 37 proceeding. Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006). We remanded the case for a new hearing on Lee’s Rule 37 petition.
The circuit court held another Rule 37 hearing on August 28, 2007, at which Lee was represented by newly appointed counsel. On November 21, 2007, the circuit judge entered findings of fact and conclusions of law, again denying Lee’s petition for postconviction relief. That order specifically relied on testimony from the August 28, 2007 hearing; stipulated testimony from the hearings held in January and March 1999; testimony introduced during the guilt and penalty phases of the trial; Lee’s pleadings; the record of the case; and the arguments of counsel. Lee appealed the November 21, 2007 findings of fact and conclusions of law to this court, and we ordered that Lee file a substituted brief in conformance with our rules. Lee v. State, 375 Ark. 124, 289 S.W.3d 61 (2008).
Our rules require an appellant to abstract all material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the court for decision. Ark. Sup.Ct. R. 4-2(a)(5) (2008). Furthermore, on a second or subsequent appeal, the abstract must include a condensation of all pertinent portions of the transcript filed on any prior appeal. Id. Our rules also require that the appellant include all relevant orders, pleadings, exhibits, and documents in the addendum portion of his brief. Id. R. 4-2(a)(8).
Lee’s substituted brief does not include a copy of the Rule 37 petition on which the circuit judge ruled in his November 21, 2007 order. Furthermore, the abstract in the substituted brief does not appear to include the relevant testimony from all of the postconviction hearings. While the substituted brief did include abstracted testimony from the guilt and penalty phases of the trial, Lee also abstracted various pleadings, exhibits, and orders from the underlying trial. Our rules make clear that “true and legible photocopies of the order ... from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal” must be included in the addendum, not in the abstract portion of the brief. Id. According to our rules:
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8).
Ark. R. Sup.Ct. 4-2(b)(3) (2008).
Accordingly, we again order Lee to file a substituted brief, curing the deficiencies in the abstract and addendum, within fifteen days from the date of entry of this order. To be clear, Lee’s brief must, at a minimum, abstract the following: All relevant testimony from the guilt and penalty phases of the trial, all relevant testimony from the January and March 1999 evidentiary hearings, and all relevant testimony from the January 28, 2007 Rule 37 hearing. Also, again at a minimum, Lee’s brief must include photocopies of the following documents in his addendum: The November 21, 2007 findings of fact and conclusions of law, the Rule 37 petition on which the Pulaski County Circuit Court ruled in its November 21, 2007 order, and Lee’s notice of appeal. The addendum must also contain photocopies of any other pleadings, exhibits, or documents relevant to this court’s understanding of the issues on appeal.
After service of the substituted brief, the appellee shall have an opportunity to file a responsive brief in the time prescribed by the Supreme Court Clerk, or to rely on the brief previously filed in this appeal.
Because this is the second time this court has been forced to order rebriefing in this case, we refer the defense attorneys to the Committee on Professional Conduct.
Rebriefing ordered.
. We specifically noted that Lee had failed to abstract all relevant portions of the guilt and penalty phases of his underlying criminal trial or the relevant testimony from the first Rule 37 proceeding. Lee's brief was deficient also because the addendum did not include a copy of his amended Rule 37 petition.
. Lee abstracted testimony from the “Rule 37 Hearing.” However, the brief does not indicate which Rule 37 hearing was abstracted. Lee must abstract all relevant testimony from the January and March 1999 hearings, as well as from the August 28, 2007 hearing. | [
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PER CURIAM.
Appellant Larry Neely appeals from the circuit court’s order granting summary judgment to appellees Lona McCastlain and the State of Arkansas. Because appellant has submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule 4-2(a)(8) (2008), we order rebriefing.
Rule 4-2(a)(8) provides that the appellant’s brief shall contain an addendum that includes a true legible photocopy of the order or judgment from which the appeal is taken, “along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.” Rule 4-2(b)(3) provides that, if the court finds the abstract or addendum to be deficient, such that the court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, then the court may notify the appellant of the deficiencies and allow appellant to file a substituted brief.
Here, appellant’s brief is deficient because his addendum lacks relevant pleadings essential to an understanding of the case. While appellant has included a copy of his complaint for declaratory judgment and writ of habeas corpus, he has failed to include the appellees’ answers to that complaint, the appellees’ joint motion for summary judgment, and his response to that motion. Also, as part of his argument, appellant discusses information in two affidavits, one affidavit of his own and one affidavit of the investigating officer in his underlying criminal action, but neither affidavit is included in the addendum.
Because appellant has failed to comply with our rules, we order him to file a substituted addendum and brief within fifteen days from the date of entry of this order. If appellant fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted brief, the appellees shall have an opportunity to revise or supplement their brief in the time prescribed by the clerk.
Rebriefing ordered. | [
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ELANA CUNNINGHAM WILLS, Justice.
This case requires the court to decide whether federal law preempts an order of the Arkansas State Highway Commission (Commission) forcing Burlington Northern Santa Fe Railway Company (BNSF) to reopen a private “at-grade” railroad crossing. We hold that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts the Commission’s jurisdiction in this instance; therefore, we vacate the Commission’s order.
The private railroad crossing at issue in this case is located between the cities of Hoxie and Walnut Ridge and has been in existence for over eighty years. In 1999, Roger and Ruth Anderson entered into an agreement to purchase the property accessed by the crossing and began using the property for their salvage yard business, Anderson Auto Salvage. BNSF and the Andersons later began negotiations to enter into an “Agreement for Private Crossing.” BNSF drafted an agreement that, among other provisions: (1) granted the Andersons a license “to construct, maintain, and use” the crossing; (2) required the Andersons to pay BNSF $10,000; (3) required the Andersons to indemnify BNSF; and (4) required the Andersons to procure and maintain liability insurance in connection with the crossing. The draft agreement also provided that either party could terminate the license by serving the other party thirty-days’ notice.
The Andersons refused to sign the agreement, and BNSF later posted notice that the crossing would be closed. After the Andersons contacted city officials in Walnut Ridge regarding the dispute, both the Walnut Ridge city attorney and the Andersons requested that the Commission hold a hearing on BNSF’s proposed closing of the crossing. The Commission’s counsel sent letters to BNSF asserting that an administrative hearing was required under Ark.Code Ann. § 23-12-304(b) before BNSF could close the crossing. BNSF responded by contending that the Commission’s authority to prevent it from closing a private crossing was preempted by federal law, and BNSF later barricaded the crossing.
The Commission held a hearing and ordered BNSF to reopen the crossing within ten days after it found that: the Commission’s action was not preempted by ICCTA and was authorized by Ark.Code Ann. § 23-12-304(b); BNSF merely held an easement in perpetuity for railway purposes over the Andersons’ property; there were no unsafe conditions that supported BNSF’s decision to close the crossing; and the crossing was the Andersons’ only access to their property. Further, the Commission ordered BNSF to draft an agreement with the Andersons, modeled on an earlier 1921 agreement regarding the crossing that was submitted into evidence, including a provision that stated that “Railway Company may seek to eliminate this crossing by requesting a hearing for that purpose, with notice to Licensee, before the Arkansas State Highway Commission.” The Commission’s order also prohibited BNSF from charging the Andersons a fee “because no fee was recited in the 1921 agreement,” and likewise prohibited BNSF from requiring the Andersons to procure and maintain “insurance of any kind.”
BNSF appealed the Commission’s decision to the Craighead County Circuit Court, repeating its arguments before the Commission and asserting several procedural errors underlying the Commission’s findings and order. Upon review, the circuit court vacated the Commission’s order, holding that ICCTA preempted the Commission’s authority over any matter in the ease, including the safety issues raised by BNSF as well as “the terms and conditions which a railroad may impose in connection with permissive use of such private crossing.” Additionally, the circuit court held that the Commission had essentially and unlawfully “prejudged” the issues underlying the dispute between BNSF and the Andersons and committed other procedural errors, as well as exceeded the Commission’s constitutional and statutory authority by mandating the terms of the private crossing agreement.
The Andersons bring this appeal, arguing that the circuit court erred in holding that the Commission’s authority was preempted by ICCTA. The Andersons also argue that the circuit court erred for the following reasons: their property right in the private crossing was not a revocable license; the Commission properly allocated the burden of proof according to the hearing procedures set out under Ark.Code Ann. § 23-12-304; substantial evidence supported the Commission’s findings; and that any procedural errors “did not justify [the circuit court] declaring the hearing officers findings and conclusion void.”
We review the Commission’s order under the Arkansas Administrative Procedure Act (APA), Ark.Code Ann. §§ 25-16-201 to -218 (Repl.2002 & Supp. 2007). Review of administrative agency decisions is limited in scope. Ark. Dep’t of Human Servs. v. Bixler, 364 Ark. 292, 219 S.W.3d 125 (2005). The appellate court’s review is directed not to the decision of the circuit court but to the decision of the administrative agency. Id. The APA provides that a reviewing court may reverse or modify the agency’s decision if the decision: (1) violates the constitution or a statute; (2) exceeds the agency’s statutory authority; (3) is affected by an error of law; (4) is procedurally unlawful; (5) is unsupported by substantial evidence in the record; or (6) is arbitrary, capricious, or is an abuse of discretion. Ark.Code Ann. § 25-15-212(h); Ark. Dep’t of Correction v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007).
The primary question presented by this case is whether 49 U.S.C. § 10501(b) of ICCTA preempts the Commission’s exercise of jurisdiction to order BNSF to reopen a private crossing under Ark.Code Ann. § 23-12-304. The Supremacy Clause of the United States Constitution provides that state laws that “interfere with, or are contrary to the laws of congress, made in pursuance of the constitution” are invalid. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824); U.S. Const, art. VI, cl. 2. Under the principle of federal law supremacy, there are three ways that federal law can preempt state law: (1) where Congress makes its intent to preempt state law explicit in statutory language; (2) where state law regulates conduct in a field that Congress intends for the federal government to occupy exclusively; or (3) where there is an actual conflict between state and federal law. English v. Gen. Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Where a federal statute contains an express preemption clause, the focus of statutory construction is “on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).
As the title of the legislation implies, ICCTA abolished the Interstate Commerce Commission, while simultaneously creating the Surface Transportation Board (STB) to replace it and to perform many of the same regulatory functions. See Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 442 (5th Cir.2001). ICCTA contains an express preemption clause, stating as follows:
(b) The jurisdiction of the Board over—
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.
49 U.S.C. § 10501(b) (2000).
This court has addressed issues of federal preemption and ICCTA in two cases— Ouachita R.R., Inc. v. Circuit Court of Union County, 361 Ark. 333, 206 S.W.3d 811 (2005) and 25 Residents of Sevier County v. Ark. Highway & Transp. Comm’n, 330 Ark. 396, 954 S.W.2d 242 (1997). In the former, Ouachita Railroad brought an ejectment action against a married couple, the Harbours, alleging that they had wrongfully taken possession of the railroad’s land and removed the company’s railroad tracks. The defendant Harbours answered the complaint and counterclaimed, contending that they acquired the land through adverse possession and that Ouachita Railroad had abandoned the tracks.
Ouachita Railroad filed a motion for summary judgment, arguing that “the STB had exclusive jurisdiction over the abandonment or discontinuation of use of the right-of-way, and that the STB’s authority to regulate the matter preempted all state law relating to it.” 361 Ark. at 338-39, 206 S.W.3d at 813. The chancery court issued a letter opinion, finding that the question of whether the property had been abandoned by the railroad could only be resolved by the STB, but the court retained jurisdiction to address state-law claims after the STB’s final determination. As directed by the chancery court, the Harbours filed a petition with the STB requesting a waiver of the filing fee, which was declined. Ouachita Railroad then filed a supplemental motion for summary judgment, arguing that, because the STB denied the Harbours’ request to waive the filing fee, “since the court had already determined that the STB had exclusive jurisdiction over the Harbours’ counterclaim, it was appropriate for the court now to grant its motion for summary judgment.” Id. at 339-40, 206 S.W.3d at 813. The chancery court denied the motion for summary judgment on the grounds that the Harbours’ equitable defenses were within its jurisdiction, regardless of the abandonment issue.
The railroad then petitioned this court for a writ of prohibition, asserting that ICCTA preempted the chancery court’s jurisdiction. Upon review, this court framed the question as “whether the Har-bours’ counterclaim against the railroad for abandonment and adverse possession of the railroad’s right-of-way is exclusively within the jurisdiction of the STB.” Id. at 343, 206 S.W.3d at 816. The court held that “Section 10501(b) clearly provides that the STB’s jurisdiction over the abandonment of tracks is exclusive and preempts any remedies available under state law.” Id. The court noted that it had previously acknowledged “the broad language of § 10501(b)” and “its preemptive effect” in a case involving the closing of a railroad agency station or depot closings, 25 Residents of Sevier County, supra. Id. The court also cited cases involving the STB’s predecessor, the Interstate Commerce Commission (ICC), such as Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319-23, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981), in which the Supreme Court held that Congress granted to the ICC exclusive and “plenary authority to regulate, in the interest of interstate commerce, rail carriers’ cessations of service on their lines.” Turning to the Harbours’ counterclaims involving adverse possession and other equitable defenses they asserted to establish a right to the land at issue, the Ouachita Railroad court held that these issues were also preempted under 49 U.S.C. § 10501, stating as follows:
As already noted, the ICC’s, and now STB’s, jurisdiction over the “construction, acquisition, operation, abandonment, or discontinuance of ... tracks” is exclusive. 49 U.S.C. § 10501(b)(2) (2000). Were the circuit court to quiet title over the land in favor of the Har-bours based on their counterclaim of adverse possession or to acknowledge any right to the land by the Harbours, this would necessarily result in the acquisition of the right-of-way by the Har-bours and in the discontinuation of the use of the same by the railroad. Such a determination clearly falls within the exclusive jurisdiction of the STB, as demonstrated by the clear language of the statute as well as the case law cited above....
Because any determination by the circuit court on the matter of title or any right to the land would interfere with STB’s jurisdiction as provided for in the statute, we hold that the circuit court is wholly without jurisdiction to determine the abandonment and adverse possession claims but also any equitable defenses asserted by the Harbours that seek to bestow upon them any right to the use of the land. It is the STB that has exclusive jurisdiction over such matters.
Ouachita R.R., Inc. v. Circuit Court of Union County, 361 Ark. at 345, 206 S.W.3d at 817.
In 25 Residents of Sevier County, supra, relied upon in Ouachita Railroad, a railroad filed an application with the Commission to close an agency station in Dierks, Arkansas, in order to consolidate operations with those in a nearby city. After the Commission filed notice of the proposed closing, which became effective ninety days later, twenty-five residents of Dierks filed a petition requesting that the Commission order the railroad to reopen the agency station. The Commission requested that the parties present briefs addressing the question of whether ICCTA preempted state jurisdiction of the discontinuation of railroad agency stations. Following a hearing, the Commission determined that it did not have jurisdiction over the matter, because the STB had held “exclusive jurisdiction over ‘transportation by rail carriers’ as part of the interstate rail network” and dismissed the residents’ petition. 330 Ark. at 398-99, 954 S.W.2d at 243 (quoting the Commission’s order). The Pulaski County Circuit Court affirmed the Commission.
On appeal, this court examined the language of 49 U.S.C. § 10501(b) and first determined that, “[c]learly, the act covers ‘transportation by rail carriers’ and the discontinuation of their carriers’ related facilities.” Id. at 400, 954 S.W.2d at 244. The court then considered the question of whether the agency stations were “facilities” within the meaning of § 10501(b), and held as follows:
Given the broad language of the act itself, its statutory framework, and considering the recent decisions interpreting the act, we believe it is clear that Congress intended to preempt the states’ authority to engage in economic regulation of rail carriers. The preemptive strike, we hold, includes regulation of agency station discontinuations. Accordingly, we conclude § 23-12-611, which gives the AHT Commission the authority to regulate such closings, is preempted by the ICC Termination Act of 1995.
Id. at 401, 954 S.W.2d at 244.
Although this court held that the broad language of 49 U.S.C. § 10501(b) preempted state court action in both Ouachita Railroad, Inc. and 25 Residents of Sevier County, neither case involved railroad crossings as in the present appeal, and ICCTA does not expressly mention railroad crossings. However, a recent decision by the U.S. Fifth Circuit Court of Appeals involves railroad crossings, and it is instructive because it is in accord with this court’s construction of ICCTA. In Franks Investment Co. v. Union Pacific Railroad Co., 534 F.3d 443 (2008), a property owner filed an action in state court, alleging that he had a property right in four railroad crossings, and sought an injunction to prevent Union Pacific from closing two of the crossings, and to force it to reopen two it had already closed. The preliminary-injunction motion and posses-sory action was removed and consolidated in federal district court, which held that the state-law claim was expressly preempted by ICCTA.
Upon review, the Fifth Circuit framed the issue as “whether railroad crossings fit within the purview of ‘transportation by rail carriers,’ thereby evincing Congress’ intent to preempt state-law claims relating to ownership of the closings.” Id. at 446 (quoting 49 U.S.C. § 10501(b)).
The Franks court first recognized ICC-TA’s broad definition of “transportation” as follows:
The ICCTA defines “transportation” to include, inter alia: “a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use.”
Id. (quoting 49 U.S.C. § 10102(9)(A)). The Franks court then noted that the federal district court had held that crossings are within the STB’s exclusive jurisdiction because ICCTA’s definition of “transportation” includes “the movement of passengers or property ... by rail,” and “[i]n that regard, the district court found crossings affect safety, drainage, and maintenance, which necessarily affect rail travel.” Id. The Fifth Circuit agreed, rejecting the argument that, because “crossings” were not explicitly listed in the ICCTA definition of “transportation,” it evidenced Congress’s intent to exclude crossings from the STB’s exclusive jurisdiction. Instead, ICCTA’s broad language and definition of transportation — to include “ ‘property ... or equipment of any kind related to the movement of passengers or property or both, by rail’ ” — clearly “belies the notion that Congress intended ‘transportation’ to include only items listed in its definition.” Id. (emphasis original).
At issue here, as in Franks, is whether a state proceeding to reopen a closed railroad crossing falls within the STB’s exclusive jurisdiction under the language of § 10501. The Andersons contend that it does not, and argue that this court should follow the North Dakota Supreme Court holding in Home of Economy v. Burlington Northern Santa Fe Railroad, 694 N.W.2d 840 (N.D.2005). In Home of Economy, BNSF closed a private crossing on a spur line that provided access from a road to property owned by the appellant. Home of Economy filed suit against BNSF to reopen the crossing, alleging that it possessed an easement for access to the property. BNSF responded by claiming that it held easements by prescription, necessity, and estoppel. The trial court dismissed the suit, holding that it lacked jurisdiction because ICCTA vested the STB with exclusive jurisdiction over the regulation of railroad operations. Id. at 841. The trial court specifically “concluded the closing of the grade crossing constituted regulation of rail transportation under the ICCTA, because the grade crossing affected rail cars going from State Mill and Elevator [Roads] and could also affect liability for accidents at the crossing.” Id. Thus, the trial court held that the STB’s exclusive jurisdiction preempted any state court action by Home of Economy.
On appeal, Home of Economy argued that the ICCTA only grants exclusive federal jurisdiction to the STB “in those cases involving substantial economic impact on a railroad’s operations.” Id. The North Dakota Supreme Court agreed, holding that “ICCTA does not explicitly preempt state law regarding grade crossings” because “[t]he preemption language in the ICCTA explicitly preempts many issues “with respect to regulation of rail transportation,’ but does not specifically refer to states’ traditional police power regarding grade crossings.” Id. at 846 (quoting ICCTA). Although the North Dakota Supreme Court acknowledged that “some courts have broadly construed Congress’s preemption language in ICCTA and have concluded that language preempted state or local laws,” it interpreted a selection of ICCTA’s legislative history to reflect that Congress only intended to economically regulate the interstate railway system while leaving intact states’ police power. Home of Economy, 694 N.W.2d at 844.
The Andersons’ reliance on Home of Economy is misplaced. First, in contrast to Home of Economy, this court specifically noted the broad language and preemptive reach of 49 U.S.C. § 10501(b) in Ouachita Railroad, Inc., supra, and 25 Residents of Sevier County, supra. More importantly, this court applied the language broadly to preempt state judicial and regulatory action, respectively, in those cases. Second, the Commission’s order in this case clearly impacts BNSF’s railroad operations and “transportation by rail carriers” for purposes of ICCTA. The Commission ordered BNSF: (1) to reopen the private crossing within ten days; (2) to redraft a 1921 private crossing agreement to apply to the Andersons; and (3) that “[n]o fee may be charged by the railroad for entry into this agreement with the Andersons, as no fee was charged in the 1921 agreement” and “[n]o insurance of any kind may be required by the railroad from the Andersons as no insurance was required in the original [1921] agreement.” This action, as in Franks, necessarily impacts “transportation by rail,” affecting both BNSF’s economic interests and the movement of passengers or property. As noted by the Fifth Circuit in Franks, supra, ICCTA’s definition of “transportation” includes “property ... or equipment of any kind related to the movement of passengers or property or both, by rail, regardless of ownership or an agreement concerning use.” 49 U.S.C. § 10102(9)(A) (2000) (emphasis added).
We hold that ICCTA preempts the Commission’s jurisdiction over this private railroad crossing dispute and we vacate the Commission’s order. Federal law preemption deprives the Commission’s jurisdiction under the facts presented in this case and invests exclusive jurisdiction in the STB. 49 U.S.C. § 10501(b) (STB has exclusive jurisdiction over railroad operations, tracks, and facilities). Decisions of the STB may be appealed to the appropriate United States circuit court of appeals. 28 U.S.C. § 2321(a) (2006) (judicial review of STB orders); 28 U.S.C. § 2342(5) (2006) (exclusive jurisdiction to determine validity of STB final orders lies with the courts of appeals).
Because we hold that the Commission’s jurisdiction is preempted by ICCTA, the Anderson’s remaining arguments are moot.
Commission’s order vacated.
. An at-grade railroad crossing is on the same level of the railroad tracks, rather than over or under them.
. Department of Transportation (DOT) # 667982U.
. Ark.Code Ann. § 23-12-304(b) (Repl.2002) provides:
(1) It shall be the duty of the Highway Commission, or any representative thereof, to make a personal inspection of any designated place where it is desired that a road or street, either public or private, cross any railroad in this state.
(2) Upon ten (10) days' notice as required by law and after a public hearing, the commission may make such order as in its judgment shall be just and proper. The order may provide for a crossing at grade, over or under the railroad, and shall be enforced as other orders by the commission.
. See also Cedarapids, Inc. v. Chicago, Cent. & Pac. R.R. Co., 265 F.Supp.2d 1005 (N.D.Iowa 2003) (holding that to the extent that a state-law claim sought to force CC & P to abandon the track in question, such claims were preempted by ICCTA); Trustees of the Diocese of Vt. v. State, 145 Vt. 510, 496 A.2d 151 (1985) (holding that a declaratory-judgment action in state court to determine whether an easement for railroad purposes had been abandoned interfered with the ICC’s authority to determine the issue); City of Seattle v. Burlington N. R.R. Co., 105 Wash.App. 832, 22 P.3d 260, 262 (2001) (stating that language of § 10501 grants the STB "clear, broad, and unqualified” jurisdiction over the statute's listed activities).
. The North Dakota Supreme Court cited H.R.Rep. No. 104-311, at 95-96 (1995), as reprinted, in 1995 U.S.C.C.A.N. 793, 807-08. | [
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JIM HANNAH, Chief Justice.
Kevin Lynn Davis, Jr., appeals his conviction for capital murder and sentence of life without parole imposed in the death of Patricia Young. He asserts that the trial court erred in (1) denying his motion to dismiss based on violation of his right to a speedy trial, (2) admitting evidence excluded by an agreement or stipulation of the State, (3) failing to hold a hearing and make a finding on fitness to proceed, and (4) failing to instruct the jury on a prior inconsistent statement. We affirm the circuit court. Our jurisdiction on appeal is pursuant to Ark. Sup.Ct. R. l-2(a)(2).
Speedy Trial
Davis argues that the circuit court erred in denying his motion to dismiss for violation of his right to a speedy trial. Pursuant to Arkansas Rules of Criminal Procedure 28.2, a criminal defendant is entitled to have the criminal charges dismissed with an absolute bar to prosecution if the case is not brought to trial within twelve months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Ark. R.Crim. P. 28.3. Davis was arrested on November 8, 2005, and tried on June 27, 2007, 601 days after his arrest. He thus showed that his trial took place outside the twelve-month period of Rule 28.2. Once a criminal defendant shows that the trial will take place more than twelve months after the date of arrest, the burden shifts to the State to show that the delay was the result of the defendant’s conduct or was otherwise justified. State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008). “[T]his court has consistently and repeatedly held that a defendant is not required to bring himself to trial or ‘bang on the courthouse door’ to preserve his right to a speedy trial; rather, the burden is on the courts and the prosecutors to see that trials are held in a timely fashion.” Jolly v. State, 358 Ark. 180, 193, 189 S.W.3d 40, 46 (2004).
Davis filed two motions to dismiss based on speedy trial. Both were denied. The record shows that this case was continued five times. It was first continued from March 7, 2006, to September 21, 2006, then from September 21, 2006, to December 7, 2006, then from December 7, 2006, to April 16, 2007, and finally from April 16, 2007, to June 27, 2007.
A. March 7, 2006, to September 21, 2006
Davis first argues that the circuit court erred in excluding the 204-day period from March 2, 2006, to September 21, 2006, as time attributable to him for his mental evaluation. As a preliminary matter, the State asserts that Davis’s argument on speedy trial is foreclosed by the failure to make a contemporaneous objection. The contemporaneous-objection rule requires a defendant to apprise the court of alleged error “prior to making its decision.” Marta v. State, 336 Ark. 67, 80, 983 S.W.2d 924, 931 (1999). Davis could not apprise the court of any alleged error in exclusion of time for the mental evaluation prior to the circuit court making its decision because no hearing was held at which he could object. The contemporaneous-objection rule does not apply under these facts.
In the present case, the circuit court simply excluded time on its own motion by issuance of an order. We addressed this situation in Tanner v. State, 324 Ark. 37, 42-43, 918 S.W.2d 166, 169 (1996):
In this case, the appellant’s motion to dismiss was made before trial, and, under the circumstances of this case, he was not required to challenge the court-ordered exclusion of time immediately upon issuance of the court’s order. As we stated earlier, it is the burden of the prosecution and the courts to see that a defendant is brought to trial on time.
(Emphasis added.) In Tanner, the circuit court reset Tanner’s trial date on its own motion. Nothing in the record reflected that Tanner or his counsel were present when the decision was made, and the order indicated that the prosecutor and Tanner’s counsel were notified of the continuance by mail. The circuit court in Tanner, on its own motion, as in the present case, “filed an order which purported to exclude the period ... from speedy trial computation.” Tanner, 324 Ark. at 39, 918 S.W.2d at 167. Before a criminal defendant may be required to state a contemporaneous objec tion to the exclusion of time under speedy trial, the excludability of the period must be discussed “during a hearing where the defendant and his counsel were present.” DeAsis v. State, 360 Ark. 286, 292, 200 S.W.3d 911, 915 (2005). If there had been a hearing, where counsel was present, and at which the propriety of the excluded period was raised and decided, an objection would have been required. See Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995). We reject the State’s argument that a contemporaneous objection could have been or had to be made in this case where there was no hearing on the exclud-ability of the period.
As noted, Davis argues that the circuit court erred in excluding 204 days due to the mental evaluation. He asserts that only a portion of those 204 days may be attributed to the mental evaluation and cites us to Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998), where this court discussed the period excludable due to a mental evaluation. Morgan provides that time is excluded from the “date the exam is ordered to the report’s file date.” Id. at 299, 971 S.W.2d at 222. Davis agrees the time required for the mental exam as defined in Morgan is excludable and attributable to him. He asserts, however, that only the thirty-four-day period of February 21, 2006, to March 27, 2006 is attributable to him. Pursuant to Morgan, the time attributable to Davis for the mental evaluation concluded on the date the report was filed. While the record does not reveal when the report was filed, the State bears the burden of showing that any delay is attributable to the defendant or otherwise legally justified. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). While the report cover letter transmitting the report to the court is dated March 27, 2006, the State has not shown when the report was filed. Because the report could not have been filed prior to its mailing, we accept the cover letter date of March 27, 2006, as the last date of exclusion attributable to Davis on the mental evaluation. This means that thirty-four days are excluded.
The remaining 170 days, of the total 204 days excluded by the circuit court, are not excludable based on the mental evaluation. Nothing indicates that the 170-day delay was attributed to any other cause. As already noted, and as we have repeatedly held, the burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Jolly, supra. A contemporaneous record must reveal that a delay is attributable to the defendant or the time will not constitute an excludable period. Moody v. Ark. County Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002). There is nothing in the record that reveals that this delay was properly attributed to Davis; therefore, it is not excludable. Subtracting thirty-four days from 601 leaves 567 days from the date of arrest to the date of trial.
B. September 21, 2006, to December 7, 2006
Davis argues that the circuit court erred in excluding the period of September 21, 2006, to December 7, 2006. As with the prior excluded period, the State again argues that Davis is precluded from arguing the circuit court erred because he failed to make a contemporaneous objection. Six days before trial, on September 15, 2006, the State moved for a continuance of the September 21, 2006 trial date on the ground that it had submitted evidence to the Arkansas Crime Laboratory for testing, and that “the Crime Lab has not completed the requested analysis and it will not be available by September 21, 2006.”
As with the order on the first excluded period, the circuit court did not hold a hearing. The State’s motion to continue, as well as the order granting a continuance and excluding the time, were filed on September 15, 2006. The certificate of service on the motion indicates that the motion for continuance was mailed to Davis’s counsel on the same day, September 15, 2006. Thus, the State argues that even though no hearing was held, Davis had to make a contemporaneous objection to the exclusion of time entered in an order granting a motion that he did not even know had been filed. For the same reasons as discussed under the first excluded period, we reject the State’s argument that Davis had to make a contemporaneous objection.
Davis next argues that the circuit court erred in excluding the seventy-seven-day period of September 21, 2006, to December 7, 2006. The circuit court excluded the time, noting that the delay was because the Arkansas Crime Laboratory “report was not available.” Davis notes that Arkansas Rules of Criminal Procedure 28.3(d)(1) requires that due diligence has been exercised to obtain the evidence; however, no argument is developed. We are offered this mere conclusion and are not cited to a single case. We are not even told by Davis how there was a lack of due diligence. The failure to develop an argument precludes review on appeal. Flowers v. State, 373 Ark. 119, 282 S.W.3d 790 (2008). Thus, the seventy-seven days must be excluded. Subtracting seventy-seven from 567 leaves 490 days between the date of arrest and the date of trial.
C. December 7, 2006, to April 16, 2007
Davis next asserts that the circuit court erred in excluding the 130-day period of December 7, 2006, to April 16, 2007. The order resetting the trial to April 16, 2007, states that the trial was continued to accommodate a request for three trial days. The previous December 7, 2006 trial date was for a one-day trial. The continuance to April 16, 2007, was ordered when Davis sent a letter to the circuit court case coordinator stating that “because of the nature of the offense and the number of witnesses, the defense requests that the trial in this matter be scheduled for a minimum of three days.” The circuit court interpreted this as a request for a continuance to the first date the circuit court’s docket was free for three days. Trial was then reset for April 16-18, 2007. Davis states that the court misinterpreted the letter, and he asserts that he never asked for a continuance. The letter is unclear. The letter does not request that the December 7, 2006 trial date be retained and additional days granted, but it does request a three-day trial. We cannot say that the circuit court abused its discretion in concluding that Davis sought to continue his case to the next three open trial days on the court’s docket. See, e.g., White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997) (no abuse of discretion on the part of the trial court in excluding the time attributed to the unavailability of a witness).
Finally, Davis argues that the circuit court erred in excluding this time based on court congestion. Because we conclude there was no error in finding a request for a continuance, we need not address this argument. Subtracting 130 days from 490 days leaves 360 days between the date of arrest and the date of trial. Thus, trial occurred within the twelve-month period allowed. The circuit court did not deny Davis his right to a speedy trial.
Additional periods of time were excluded by the circuit court. We need not analyze whether these periods were excludable because we have concluded that trial occurred within 360 days of arrest; however, we note for the benefit of the bench and bar that the additional periods of exclusion suffer the same problems with the docket and record as noted above. Congestion of the court docket was noted and relied on without explanation in a court order. Motions were filed and orders were entered on the same day without any hearing in court. In one instance, the certificate of service indicated that the motion was mailed to Davis’s counsel on the day the motion was filed and the order was entered. The circuit court in its order denying the Motion to Dismiss on speedy trial grounds noted that there was no objection to the delay. It would be hard for the defendant to object to a delay before his counsel even received notice the motion that would cause the delay was being filed.
Stipulation to Exclude Evidence of Other Crimes, Wrongs, or Acts
Davis argues that the circuit court erred in refusing to enforce a stipulation that he entered into with the State that no evidence of other crimes, wrongs, or acts would be offered in this case. The circuit court found that no stipulation existed and analyzed admission of evidence of other crimes, wrongs, or acts under Arkansas Rule of Evidence 404(b). The circuit court admitted some evidence and excluded other evidence. Davis concedes that the circuit court correctly determined admissibility of the evidence under Rule 404(b) but asserts that no evidence of other crimes, wrongs, or acts could be admitted due to the stipulation he reached with the State. Davis asserts that the stipulation was entered into at the oral argument on his motion to disclose evidence of other crimes, wrongs, or acts. The question presented then is whether Davis and the State entered into a stipulation that no evidence of other crimes, wrongs, or acts would be offered at trial.
This court defined a stipulation in McClard v. Crain Management Group, Inc., 313 Ark. 472, 476, 855 S.W.2d 929, 931 (1993):
A stipulation is a “name given to any agreement made by the attorneys engaged on opposite sides of a cause (especially if in writing) regulating any matter incidental to the proceedings or trial, which falls within their jurisdiction.” Black’s Law Dictionary 1269 (5th ed.1979). The “stipulations” filed by McClard and Stacks were not signed by both sides. Absent agreement between the attorneys to stipulate, Freeway Ford was within its rights to supplement the record if appropriate.
Thus, a stipulation may be made in writing. A stipulation can also be reached where both parties or their counsel appear before the court to make an oral stipulation official. See, e.g., Smith v. Washington, 340 Ark. 460, 10 S.W.3d 877 (2000).
Davis’s motion asked the State to disclose any evidence of other crimes, wrongs, or acts, and in oral argument the prosecu tor stated it had no “404(b) evidence,” and did not intend to offer any. The circuit court then asked, “Anything further on that motion ... ?” Davis’s counsel responded, “No.” While this statement by the prosecutor may be argued to be a representation to the circuit court of what evidence the State had that might be subject to Arkansas Rule of Evidence 404(b), and perhaps what evidence it intended to offer, it does not constitute an agreement with Davis that no evidence of other crimes, wrongs, or acts would be offered. Davis offers no other evidence that a stipulation was made.
A decision of the circuit court on whether the parties have a stipulated is a finding of fact reviewed under the clearly erroneous standard. See, e.g., City of Rockport v. City of Malvern, 356 Ark. 393, 155 S.W.3d 9 (2004) (finding of fact on a stipulation). “A finding is clearly erroneous when, although there was evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed.” R.M.W. v. State, 375 Ark. 1, 289 S.W.3d 46, 50 (2008). The circuit court found that the parties entered into no stipulation to exclude from trial all evidence of other crimes, wrongs, or acts. The circuit court was not clearly erroneous in reaching this decision. Thus, there was no error in the court analyzing what evidence of other crimes, wrongs, or acts was admissible, and again we note that Davis agrees that the evidence admitted was properly admitted under Ark. R. Evid. 404(b).
Fitness to Proceed
Davis asserts that the circuit court erred in failing to sua sponte hold a hearing on competency. Although Davis asked for and received a mental evaluation, no hearing on his mental fitness was requested and none was held. Where a mental evaluation is undertaken, and neither party contests the evaluation, a hearing need not be held. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998): “A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is upon the defendant.” Mask v. State, 314 Ark. 25, 32, 869 S.W.2d 1, 5 (1993).
However, a circuit court must order a hearing on competency sua sponte when there is “reasonable doubt about the defendant’s competency to stand trial.” Jacobs v. State, 294 Ark. 551, 553, 744 S.W.2d 728, 729 (1988) (citing Campbell v. Lockhart, 789 F.2d 644 (8th Cir.1986)). It was Davis’s burden to prove there was reasonable doubt about Davis’s competency to stand trial. There was no duty on the circuit judge to sua sponte order a competency hearing under the facts in this case.
Arkansas Model Jury Instruction Criminal 202
Davis alleges the circuit court erred in refusing to instruct the jury with Arkansas Model Jury Instruction Criminal 202 (prior inconsistent statements by a witness other than the accused) when after deliberations began, the jury requested to review witness Marcia Flores Sperry’s testimony. This instruction may be given when a witness testifies at trial inconsistently with testimony provided by that witness prior to trial and should be given at the time the inconsistent testimony is admitted into evidence. See AMI Criminal 2d 202 note.
Sperry testified that she lied to police and gave them false details such as where she was at the time of the crime; however, her statements that she saw Davis kill Young remained consistent. Davis made no request for the instruction at the time Sperry testified at trial and did not request it when the jury was instructed. A trial court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Grillot v. State, 358 Ark. 294, 107 S.W.3d 136 (2003). We find no abuse of discretion.
Rule I-S(h) Review
The record in this case has been reviewed for reversible error pursuant to Supreme Court Rule 4-3(h), and none has been found.
Affirmed.
. We note that the evidence was timely submitted to the Arkansas Crime Laboratory. What diligence was exercised by the State thereafter is not revealed by the record. However, like the Arkansas State Hospital, the crime lab is not part of the judiciary. In Mack v. State, 321 Ark. 547, 550, 905 S.W.2d 842, 844 (1995) (quoting Collins v. State, 304 Ark. 587, 590, 804 S.W.2d 680, 681 (1991)), we stated of the Arkansas State Hospital that, "delays caused by its operations would not be subject to the same level of scrutiny as delays caused by the criminal justice system itself." Likewise, we will not subject delays caused by operations of the crime lab to the same level of scrutiny as delays caused by the criminal justice system itself.
. Clearly, there was evidence of other crimes, wrongs, or acts as evidenced by the circuit court’s analysis and admission of evidence under Arkansas Rule of Evidence 404(b). We note that the State at trial indicated that after Davis’s motion to disclose evidence was decided, it learned of evidence it did wish to offer. The issue of what representation, if any, that the State made to the circuit court regarding evidence at the time of the motion to disclose was not litigated below and is not at issue on this appeal.
. The circuit court did find that if the State agreed in open court to forbear offering evidence, the State would be held to that agreement. The State requested and was allowed to make additional argument to the circuit court. The circuit court found that the additional evidence to be offered through the testimony of Gracie Darby was not evidence the State had agreed to withhold from trial. | [
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LARRY D. VAUGHT, Chief Judge.
Appellant Casey Lee Dirickson was found guilty by a Grant County Circuit Court jury of two counts of internet stalking of a child and received a sentence of fifteen years’ imprisonment. On appeal, he contends that the trial court abused its discretion in admitting into evidence the computer printouts of Dirickson’s internet conversations with an alleged fourteen year old. We affirm.
On January 26, 2007, Sheridan Police Department Officer David Holland, posing as fourteen-year-old Cheryl Kidd, entered an internet chat room. Officer Holland was directly contacted by Dirickson, who initiated the conversation by asking Cheiyl her age, sex, and location. Cheryl responded that she was a fourteen-year-old female from central Arkansas. Dirickson said that he was twenty-six years old and that he worked as a correctional officer at a prison. He asked for Cheryl’s address, and she told him that she lived behind Wal-Mart at “67 Village Lane.”
Dirickson and Cheryl chatted again on January 30, 2007. They discussed having sex and agreed to meet at the Wal-Mart near Cheryl’s home. Officer Holland, while conducting surveillance at Wal-Mart, observed a man near the entrance of the store matching Dirickson’s description. The officer watched Dirickson leave the store in a vehicle. Officer Holland confirmed that the vehicle was owned by Dirickson and that he worked for the Department of Correction. When Dirickson entered into the subdivision where Cheryl supposedly lived, he was stopped and arrested.
At the police station, Dirickson voluntarily gave a videotaped statement to Lieutenant Brent Cole of the Sheridan Police Department. Dirickson began the statement by saying, “I know I’m guilty.” He added:
I was just playing around online. I ' started talking to whoever it was said they was 14. And one thing led to another. I tried to keep my mind out of it, but the longer I thought about it the more I thought I’d like to take shot. You know?
At the omnibus hearing, counsel for Dir-ickson requested that she and her expert be permitted to examine the hard drive of the computer that Officer Holland used to converse with Dirickson to authenticate the transcripts of the conversations that the State sought to offer into evidence at trial. The State agreed to make the computer hard drive available to Dirickson for a supervised inspection. However, prior to Dirickson’s inspection of the hard drive, the State advised counsel for Dirickson that the hard drive had been destroyed by a virus. In response, Dirickson moved to dismiss the case, or in the alternative to suppress the transcripts, arguing that because they could no longer be authenticated, they were not the best evidence. The trial court reserved ruling on the issue until trial.
At trial, Officer Holland and Lieutenant Cole gave the above testimony. Officer Holland added that he used software to save his internet conversations to the hard drive so that they could be retrieved at a later date. He further stated that he printed out his conversations with Dirick-son from the archive immediately after they occurred. The State also presented the testimony of Charles Simpson, an expert in the field of computer software, equipment, servers, and networks. Simpson, who never inspected the hard drive in question, testified that generally, chat-room conversations can be saved u sing programs that “archive” the information into a data base on the hard drive. He said that once information is archived on the hard drive, the file is locked and cannot be changed, deleted, or manipulated. Conversations can only be accessed by printing them out, and the printout will be verbatim from the archive.
Based on this evidence, the jury convicted Dirickson of two counts of internet stalking of a child. Dirickson does not challenge the sufficiency of the evidence on appeal. Rather, he contends that the trial court abused its discretion in admitting into evidence the printouts of Dirickson’s internet conversations with Officer Holland. Within this point, Dirickson argues that the admission of the printouts violated (1) the best-evidence rule; (2) the hearsay rule; and (3) his right to confront the evidence.
Trial courts have broad discretion in evidentiary rulings, and a trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. Eastin v. State, 370 Ark. 10, 257 S.W.3d 58 (2007). Likewise, we will not reverse absent a showing of prejudice. McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003). The first argument made by Dirickson is that the trial court violated the best-evidence rule when it admitted the printouts of his internet conversations with Officer Holland because they are not the best evidence. According to Dirickson, the computer hard drive is the best evidence. We disagree.
The best-evidence rule, Rule 1002 of the Arkansas Rules of Evidence, provides: “[t]o prove the content of a writing, ... the original writing ... is required, except as otherwise provided in these rules or by [rules adopted by the Supreme Court of this state or by] statute.” Ark. R. Evid. 1002 Rule 1001(3) defines an “original” in the context of computers: “If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’ ” Ark. R. Evid. 1001(3).
Based on Rule 1001(3), the printouts of the internet conversations from the hard drive of the Sheridan Police Department computer fall within the definition of an “original”; therefore, they are the best evidence under Rule 1002. See Bobo v. State, 102 Ark.App. 329, 285 S.W.3d 270 (2008) (affirming trial court’s admission of computer printouts — from computers other than those that generated the conversations — of emails in sexual-assault cases under best-evidence rule). As such, we hold that in the case at bar, the trial court did not abuse its discretion in admitting the computer printouts into evidence.
Even if we held that the printouts are not “originals” under Rule 1001(3), but rather the hard drive is the original, the printouts of the conversations remain admissible under Rules 1003 and 1004 of the Arkansas Rules of Evidence. Rule 1004 states: “The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if: ... [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” Ark. R. Evid. 1004(1). Here, the evidence reflects that the hard drive was destroyed by a computer virus. There is no evidence, nor has it been alleged, that the police or the State destroyed the hard drive. As such, the hard drive is not required under Rule 1004.
The next question is whether the printouts are admissible as duplicates under Arkansas Rule of Evidence 1003, which provides:
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
Ark. R. Evid. 1003. Authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ark. R. Evid. 901(a). One method of authentication is the presentation of “[t]estimony of a witness with knowledge that a matter is what it is claimed to be.” Ark. R. Evid. 901(b)(1).
Here, the authentication of the printouts was established via the testimony of two witnesses — Simpson and Officer Holland. Simpson testified that there are programs that save internet conversations onto the hard drive of a computer and that those conversations cannot be altered or manipulated. He also testified that the printouts from the archive of the hard drive are printed verbatim. Officer Holland testified that he set his program to archive his conversations. Furthermore, he said that the printed his conversations with Dirick-son from the archive immediately after they occurred. The officer identified the printouts of the conversations with Dirick-son and testified that they stated verbatim the contents of their conversations. This evidence sufficiently authenticates the printouts such that they are admissible as duplicates under Rule 1003.
Dirickson’s reliance upon Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), is misplaced. Hamm involved an audio- taped confession given by the defendant. After the tape was transcribed by a secretary, it was erased and reused. The defendant moved to suppress the transcription, but the motion was denied. Id. On appeal, the supreme court reversed and remanded the conviction, holding that the transcript was inadmissable because it was not the best evidence. Here, the printouts from the Sheridan police computer are originals, Ark. R. Evid. 1001(3), whereas the transcription of the audio tape is not. Also, there is a significant difference in reliability between a human-transcribed tape recording and a printout from the archive of a computer hard drive. Finally, in Hamm, the State conceded that it was error to admit the transcription of the tape. There has been no such concession in the case at bar.
Another case relied upon by Dirickson in State v. Rivas, 172 Ohio App.3d 473, 875 N.E.2d. 655 (2007). There are some factual similarities between the two cases. Rivas is an internet-stalking case, where the defendant’s counsel moved to inspect thé police department’s computer hard drive on which the original records of online chats were stored. Counsel argued that the printouts of those chats should not be admitted into evidence because they had not been properly authenticated. Rivas, supra. The factual similarities end there. In Rivas, the trial court denied the motion, and the jury subsequently found the defendant guilty. The Ohio appeals court reversed the conviction, holding that the trial court had the obligation to conduct an in camera review to verify the accuracy of the computer printouts. Id. We hold that Rivas is distinguishable from the instant case. First, the court in Rivas denied the defendant access to the hard drive, whereas the trial court in the instant case granted Dirickson access to it (before it was destroyed). Moreover, our rules of evidence expressly provide that the printouts of the conversations are the best evidence. See Ark. R. Evid. 1001(3), 1002.
Dirickson’s second argument is that the computer printouts are hearsay. We disagree. Hearsay is defined as “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (2008).
The two witnesses who made the statements in the printouts are Dirickson and Officer Holland. Rule 801 specifically states that admissions by a party-opponent are not hearsay. Ark. R. Evid. 801(d)(2). Therefore, Dirickson’s statements are not hearsay. Id. Regarding Officer Holland’s statements, Rule 801(c) defines hearsay as a statement offered into evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(e). There is not question that the officer’s statements were not offered to prove the matter asserted — that he wanted to meet Dirickson for sex. Rather, the officer’s statements were offered to put Dirickson’s statements in context. See Mock v. State, 20 Ark.App. 72, 723 S.W.2d 844 (1987) (holding that recorded conversations between the defendant’s brother and a police informant were not hearsay as they were not offered to prove the truth of the matter asserted, but to put into context other statements of the defendant to the informant); Russell v. State, 18 Ark.App. 45, 709 S.W.2d 825 (1986) (affirming the admission of an officer’s testimony about conversations between a confidential informant and the defendant; the testimony of the officer was not hearsay because it was not offered to prove the truth of the matter asserted; the testimony showed the context of the defendant’s statement). Therefore, Officer Holland’s statements are not hearsay. Ark. R. Evid. 801(c).
Lastly, Dirickson argues that the admission of the transcripts of his conversations with Cheryl violated his constitutional rights. Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), “[w]here testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Beasley v. State, 370 Ark. 238, 241, 258 S.W.3d 728, 730 (2007) (citing Crawford, 541 U.S. at 68, 124 S.Ct. 1354). “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 241, 258 S.W.3d at 730 (citing Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354).
Diriekson’s argument must fail. The intent of the Confrontation Clause is to defend against the use of “testimonial” evidence from a witness who does not appear at trial. Crawford, 541 U.S. at 52, 124 S.Ct. 1354. Assuming that the computer printouts are testimonial evidence, they did not come from a witness who did not appear at trial. Both of the witnesses who made the statements in the computer printouts were at trial — Dirickson and Officer Holland. Dirickson had the opportunity to confront both.
Affirmed.
ROBBINS and GRUBER, JJ„ agree.
. We note that Rules 1001(3) and 1002 of the Ohio Rules of Evidence are identical to Rules 1001(3) and 1002 of the Arkansas Rules of Evidence. However, in contract to our holding, the Court of Appeals of Ohio elected not to apply the rules.
. It is unclear from his brief whether Dirick-son is arguing that he was denied his right to confront the computer hard drive or the transcripts. The distinction is irrelevant to our holding. | [
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JIM HANNAH, Chief Justice.
The City of Centerton appeals a judgment of the Benton County Circuit Court declaring as invalid its annexation of surrounded land described as “West Island.” Centerton argues that the circuit court erred in finding that the appellees City of Bentonville, a municipal corporation, George and Nancy Huber, Daniel and Ruby Davies, Sandra and Gary Townsend, and the Lois Peters Revocable Trust (collectively referred to as “Bentonville”) satisfied their burden of proof to show that Centerton’s annexation of West Island failed to meet the requirements of Arkansas Code Annotated section 14-40-302(a) (Supp.2005). We affirm the decision of the circuit court. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(5).
Centerton annexed two areas of unincorporated and surrounded land known as ‘West Island” and “East Island.” Both sections of land are completely surrounded by the neighboring municipalities of Cen-terton and Bentonville. Only West Island is at issue in this appeal.
As permitted under Arkansas Code Annotated section 14-40-501 (Supp.2005), Centerton, as the municipality with the greatest distance of city limits adjoining West Island, passed an ordinance to annex West Island. At about the same time, Bentonville annexed West Island by petition of adjoining landowners, as permitted under Arkansas Code Annotated section 14-40-601 (Repl.1998). Bentonville sued Centerton, alleging that West Island failed to comply with the requirements qualifying the land for annexation by Centerton under Arkansas Code Annotated section 14-40-302(a). A judgment was entered declaring Centerton’s annexation invalid.
Admission by Bentonville
Centerton argues first that Bentonville’s annexation of West Island by petition constitutes an admission by Bentonville that West Island met not only the requirements for annexation by Bentonville, but also for annexation by Centerton. Based on this alleged admission, Centerton argues that Bentonville may not assert that Center-ton’s annexation was invalid. An admis sion is an acknowledgment or concession of a fact. See Ferguson v. State, 362 Ark. 547, 210 S.W.3d 53 (2005).
Centerton asserts that “Mr. Peters’ signature on that petition is an admission that the Trust’s property met at least one of the five criteria set out in A.C.A. § 14-40-302(a).” Peters is an owner of property in West Island in an area referred to as the land south of Motley Road. He, among other landowners, petitioned to be annexed into Bentonville. Centerton cites us to City of Marion v. Guaranty Loan & Real Estate Co., 75 Ark.App. 427, 58 S.W.3d 410 (2001), for the proposition that annexations by petition under section 14-40-601 must satisfy at least one of the listed criteria for annexation set out in section 14-40-302(a) before an area may be annexed. Center-ton further argues that only when the land to be annexed meets at least one of the criteria set out in section 14-40-302(a) is the petition “right and proper” as required for annexation by petition in Arkansas Code Annotated section 14-40-603(a) (Repl.1998).
With regard to whether the criteria of section 14-40-302(a) apply to annexation by petition of adjoining landowners, even though section 14-40-302(a) is not mentioned in the statutes on annexation by petition, Ark.Code Ann. §§ 14-40-601 to - 606 (Repl.1998), this court in City of Jacksonville v. City of Sherwood, 375 Ark. 107, 111, 289 S.W.3d 90, 93 (2008), stated that “the criteria apply regardless of whether the annexation proceeding was initiated by the city or by adjoining landowners.” See also Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998). Where at least one of the criteria of section 14-40-302(a) is met, the petition of adjoining landowners is “right and proper” under section 14-40-603(a). Id.
We agree that Bentonville in the landowners’ petition asserted that the annexation of West Island was right and proper, and that implicit within that petition is an assertion that West Island met at least one of the criteria of section 14-40-302(a) with respect to the annexation by Bentonville. However, the landowners’ petition makes no assertion, implicit or otherwise, that West Island met at least one of the criteria of section 14-40-302(a) with respect to the annexation by Centerton. That West Island met a criterion with respect to Ben-tonville does not necessarily mean that it met that same criterion or any other criteria with respect to Centerton. For example, the actual growth of one municipality surrounding an island might be moving into an island while the actual growth of another surrounding municipality might not. See Ark.Code Ann. § 14-40-302(a)(3). In the landowners’ petition, neither Bentonville nor the petitioners make an admission that West Island met the requirements for annexation by Centerton.
Prima Facie Presumption of Compliance With Section lj-10-302(a)
Citing Arkansas Code Annotated section 14-40-503(a)(2) (Repl.1998), Cen-terton next argues that when the majority of its governing body voted for annexation, a prima facie case of annexation was established that Bentonville had to overcome in its suit challenging the annexation. Section 14-40-503(a)(2) provides, “If a majority of the total number of members of the governing body vote for the proposed annexation ordinance, then a prima facie case for annexation shall be established, and the city shall proceed to render services to the annexed area.” A decision to annex becomes final in thirty days unless challenged in circuit court. Ark. Code Ann. § 14-40-508(b) (Repl.1998). The burden rests on those objecting to the annexation to produce sufficient evidence to defeat the prima facie case, and that means that they must show that the area should not be annexed. Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989). The party challenging the ordinance bears the burden of proving the annexation was improper. Id. However, this court has noted that “by the very nature of this type of litigation, there is a wide latitude for divergence of opinion and, consequently, a high degree of reliance must be placed upon the findings of the trial judge.” Id. at 557, 769 S.W.2d at 741. A finding by a circuit court on annexation will not be reversed unless it is clearly erroneous. Town of Houston, supra.
Annexation is proper where any one of the criteria set out in section 14-40-802(a) is met. Lee v. City of Pine Bluff, 289 Ark. 204, 710 S.W.2d 205 (1986). However, “[i]f a part of the proposed area does not meet one of the five requirements, the annexation of the entire area is void in toto.” Town of Houston, 332 Ark. at 348, 965 S.W.2d at 135. Section 14-40-302(a) provides as follows:
(a) By vote of two-thirds (2/3) of the total number of members making up its governing body, any municipality may adopt an ordinance to annex lands contiguous to the municipality if the lands are any of the following:
(1) Platted and held for sale or use as municipal lots;
(2) Whether platted or not, if the lands are held to be sold as suburban property;
(3) When the lands furnish the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary;
(4) When the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or
(5) When they are valuable by reason of their adaptability for prospective municipal uses.
After all the evidence was admitted, the circuit court issued a decision and stated that there was no indication that Center-ton “looks at that property as meeting any of these factors in 14-40-302.” The circuit court went on to state that it had carefully considered the criteria in section 14-40-302(a), and that while the court was reluctant to overturn an action of the Centerton city council, the “Peters property and the property below the road [Motley] on the south simply don’t meet any of the criteria of 14-40-302.” The evidence supports this decision. Centerton Mayor Ken Williams testified that the Peters’ land south of Motley Road was annexed because, “in order to take in the whole island we had to take it in.” Williams made no reference to any requirement of section 14-40-302(a). The land south of Motley Road was annexed because to get the land Centerton wanted, Centerton had to annex the land south of Motley Road as well. Nonetheless, Centerton argues that there was no proof that West Island did not meet the requirements of section 14-40-302(a)(3)-(5) (Supp.2005).
Section 14-40-302(a)(3) provides that lands may be annexed “when the lands furnish the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary.” Mayor Williams testified that the area south of Motley Road in West Island was not densely populated. He also testified that to his knowledge, “there are no municipal plans or uses for the property south of Motley Road.” Williams did make reference to a “small subdivision” that would be in the area south of Motley Road, but the annexation did not represent the actual growth of Centerton beyond its legal boundary. Further, the circuit court found that the only evidence regarding the use of the Peters property south of Motley Road was that is was used for farming. Agricultural and horticultural lands are not to be annexed when their highest and best use is agriculture or horticulture. Town of Houston, supra.
Section 14-40-302(a)(4) provides that lands may be annexed when “the lands are needed for any proper municipal purposes such as for the extension of needed police regulation.” In an October 7, 2005 letter providing notice of an annexation hearing on West Island and East Island, Centerton stated plainly that the annexation was necessary to protect Centerton’s loans, funding, and plans for water service. No other reason for annexation was offered. Mayor Williams was asked in cross-examination to confirm that “the sole reason for this island annexation was to preserve water customers for the City of Centerton.” He responded, “Correct.” He then testified that the area south of Motley Road was not part of the water service area the annexation was to protect. Clearly, the land south of Motley Road was only annexed to obtain the “whole island.” Ben-tonville showed that there was no municipal purpose in annexing the property south of Motley Road. When part of the annexed land fails to meet at least one of the five criteria of section 14^10-302(a), the entire annexation is void in toto.
Section 14-40-302(a)(5) provides that lands are subject to annexation “[w]hen they are valuable by reason of their adaptability for prospective municipal uses.” Mayor Williams was asked, “To your knowledge, do you have any municipal plans, municipal uses for this property south of Motley Road?” He responded, “No, we don’t.” Centerton now argues that other municipal services such as fire and police constitute evidence that the presumption arising from the prima facie case was not overcome; however, as the circuit court noted, Centerton was asked about municipal services and responded that water service was the sole reason for annexation.
The circuit court stated that it had looked carefully at the section 14-40-302(a) criteria and that not one of the criteria was met as to the land lying south of Motley Road. In reviewing this matter with a high degree of reliance placed upon the findings of the trial judge, we find no basis for Centerton’s allegation that the circuit court’s decision declaring the annexation invalid was clearly erroneous.
Affirmed.
. Centerton argues that the circuit court erred in finding that the criteria of Ark. Code Ann. § 14-40-302(a) (Supp.2005) do not apply to annexation by petition of adjoining landowners under Ark. Code Ann. § 14-40-601 (Supp.2005). The circuit court erred. See City of Jacksonville v. City of Sherwood, 375 Ark. 107, 111, 289 S.W.3d 90, 93 (2008). However, this error does not require reversal in this case because Bentonville also showed that none of the section 14-40-302(a) criteria were met.
. Arkansas Code Annotated section 14-40-302(a) (Supp.2005) sets out what are sometimes referred to as the “Vesta! criteria.” See Utley v. City of Dover, 352 Ark. 212, 221, 101 S.W.3d 191, 194 (2003); Chastain v. Davis, 294 Ark. 134, 142, 741 S.W.2d 632, 636 (1987). This court in Vestal v. Little Rock, 54 Ark. 321, 16 S.W. 291 (1891), discussed the criteria that could be met to satisfy the requirements of the then applicable statutes on annexation. See 29 Mansfield Digest §§ 916-923, at 324 — 25 (1884). Annexation is a special statutory proceeding. Posey v. Paxton, 201 Ark. 825, 147 S.W.2d 39 (1941). Thus, annexation is defined by statute. See Rooker v. City of Little Rock, 234 Ark. 372, 352 S.W.2d 172 (1961); Grayson v. Arlington, 225 Ark. 922, 286 S.W.2d 501 (1956). The criteria set out in Vestal were modified and adopted into the current statutes as section 14-40-302(a). | [
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JIM HANNAH, Chief Justice.
This case involves three questions of law certified to this court by the United States District Court for the Eastern District of Arkansas in accordance with Arkansas Supreme Court Rule 6-8 (2008) and accepted by this court on September 18, 2008. See Larry Hobbs Farm Equip., Inc. v. CNH Am., LLC, 374 Ark. 268, 287 S.W.3d 550 (2008) (per curiam). The questions certified are the following:
1. Under the facts of this case, whether the market withdrawal of a product or of a trademark and trade name for the product constitutes “good cause” to terminate a franchise under Arkansas Code Annotated § 4-72-204(a)(l).
2. Under the facts of this case, whether liability under Arkansas Code Annotated § 4-72-310(b)(4) is created when a manufacturer terminates, cancels, fails to renew, or substantially changes the competitive circumstances of the dealership agreement based on re-branding of the product or ceasing to use a particular trade name or trademark for a product while selling it under a different trade name or trademark.
3. Under the facts of this case, whether the sole remedies for a violation of the Arkansas Farm Equipment Retailer Franchise Protection Act (AF-ERFPA) are: (1) the requirement that the manufacturer repurchase inventory for a termination without good cause, and (2) damages, costs, and attorneys’ fees that result from the failure to purchase inventory as provided in Ark.Code Ann. § 4-72-309, or whether other remedies are also available.
As to the first question, we conclude that the answer is no. As to the second question, we also conclude that the answer is no. With respect to the third question, we conclude that other remedies are available.
The certified questions arise from an action filed in district court on April 17, 2008, by Hobbs Farm Equipment (Hobbs) after the termination of a dealer agreement between Hobbs and CNH America (CNH). CNH moved to dismiss the complaint, and the district court granted the motion to dismiss on all claims except the claims pertaining to the legal issues certified to this court. For purposes of CNH’s motion to dismiss and the district court’s certification order, the district court assumed the following facts to be true.
Hobbs and DMI, Inc., entered into an agreement enabling Hobbs to sell DMI products in June 1993. In early 1995, Hobbs executed a new dealer agreement with DMI, which enabled Hobbs to be a nonexclusive dealer of DMI products, specifically its tillage and soil management equipment, in its trade area.
In November 1998, Case Corporation, a predecessor of CNH, acquired DMI. Both Hobbs and each of DMI’s successors, including CNH, continued to perform under the 1995 agreement until August 2007.
According to the complaint, in late 2004 or 2005, CNH began to supply Hobbs’s competitor, Heartland Equipment, Inc., of East Arkansas (Heartland), with the DMI tillage and soil management equipment that Hobbs Farm Equipment had distributed since 1993. However, instead of bearing the DMI trademark and trade name, the equipment supplied to Heartland bore the Case IH trademark and name. Case IH is a trademark owned by and the name of a division of CNH. The equipment supplied to Heartland was painted red like other Case IH products, whereas DMI products were painted blue. Stated differently, CNH engaged in dual branding of identical tillage and soil management equipment originally distributed in blue paint under the DMI brand name but, beginning in 2004 or 2005, also distributed in red paint under the Case IH brand name.
On August 14, 2007, Hobbs received a letter from CNH that included the following:
CNH America LLC (“The Company”) wishes to provide you with advance notice of its decision to withdraw from the DMI-branded tillage business effective in 2008. As a result, Hobbs Farm Equipment Co. Inc.’s last ordering period for wholegoods will run through August 31, 2007. After that date, the Company will no longer accept orders for any DMI-branded tillage wholegoods products. However, Hobbs Farm Equipment Co. Inc. will be able to continue to purchase DMI-branded replacement parts through August 31, 2008.
The Company will continue to provide you with retail programs throughout 2007 and the first half of 2008 to assist you in retailing [sic] these products prior to August 31, 2008. If any DMI-branded wholegoods remain at your dealership by that date, the Company will repurchase those products in accordance with the terms of your dealer agreement and company policy, or state law. The Company will also repurchase your re maining DMI replacement parts according to state law or company policy.
CNH decided that effective August 31, 2008, it would no longer sell equipment bearing the DMI trademark and trade name but would do so under the Case IH trademark and trade name.
Good Cause
In its brief before us, Hobbs contends that, under the plain language of the Arkansas Franchise Practices Act (AFPA), specifically, Arkansas Code Annotated section 4-72-204(a)(l) (Repl.2001), neither the market withdrawal of a product nor the withdrawal of a trademark or trade name for a product constitutes “good cause” to terminate a franchise. For its part, CNH contends that the AFPA’s requirement of “good cause” for terminating an Arkansas franchise does not prevent market withdrawal. CNH states that, while the AFPA prohibits discriminatory termination of a franchise, the Act does not prohibit nationwide discontinuation of a product line or brand.
The basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id.
Arkansas Code Annotated section 4-72-204(a)(1) provides that “[i]t shall be a violation of [the AFPA] to terminate or cancel a franchise without good cause.” Pursuant to Arkansas Code Annotated section 4-72-202(7) (Repl.2001), “good cause” is defined in the AFPA as:
(A) Failure by a franchisee to comply substantially with the requirements imposed upon him or her by the franchisor, or sought to be imposed by the franchisor, which requirements are not discriminatory as compared with the requirements imposed on other similarly situated franchisees, either by their terms or in the manner of their enforcement; or
(B) The failure by the franchisee to act in good faith and in a commercially reasonable manner in carrying out the terms of the franchise; or
(C) Voluntary abandonment of the franchise; or
(D) Conviction of the franchisee in a court of competent jurisdiction of an offense, punishable by a term of imprisonment in excess of one (1) year, substantially related to the business conducted pursuant to the franchise; or
(E) Any act by a franchisee which substantially impairs the franchisor’s trademark or trade name; or
(F) The institution of insolvency or bankruptcy proceedings by or against a franchisee, or any assignment or attempted assignment by a franchisee of the franchise or the assets of the franchise for the benefit of the creditors; or
(G) Loss of the franchisor’s or franchisee’s right to occupy the premises from which the franchise business is operated; or
(H) Failure of the franchisee to pay to the franchisor within ten (10) days after receipt of notice of any sums past due the franchisor and relating to the franchise.
Hobbs points out that the franchise was not terminated for any of these reasons and that the plain language of the statute, coupled with the canon of statutory construction expressio unius est exclu-sio alterius, prohibits an interpretation of the AFPA’s list of circumstances constituting “good cause” for termination that includes circumstances not specifically listed in section 4-72-202. The phrase expressio unius est exclusio alterius is a fundamental principle of statutory construction that the express designation of one thing may be properly construed to mean the exclusion of another. MacSteel v. Ark. Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005).
Hobbs’s argument is well taken. “Good cause” is clearly defined by the plain language of section 4-72-202(7). In that section, the General Assembly listed several examples of good cause for termination, and market withdrawal was not included as an example of good cause. Had the legislature intended to include market withdrawal as good cause for termination, it could have done so.
We also note that the United States Court of Appeals for the Fourth Circuit construed section 4-72-202(7) in Volvo Trademark Holding Aktiebolaget v. Clark Machinery Co., 510 F.3d 474 (2007). In Volvo, the Fourth Circuit held that the enumerated occurrences in section 4-72-202 are the exclusive means by which a franchisor can terminate a franchise for “good cause.” Decisions of the federal circuit courts are not binding on this court; however, we find the Fourth Circuit’s interpretation of section 4-72-202 to be persuasive. The Volvo court wrote:
The Arkansas Act includes a list of eight occurrences that constitute “good cause” for termination or cancellation of a franchise. See Ark.Code Ann. § 4-72-202 (West 2007). The district court held, adopting Clark’s position, that this list constituted the exclusive means by which a franchisor may terminate a franchise for good cause under the Arkansas Act. Volvo acknowledges that it did not terminate Clark’s Dealer Agreement for any of the specific reasons provided for in the Arkansas Act, but contends that those eight occurrences are not an exclusive list of what constitutes good cause for termination of a franchise. Appurtenant to this contention, Volvo maintains that its reasons for termination, i.e., “Volvoization” and “Dealer Rationalization,” also constitute good cause for a franchise termination under the Arkansas Act.
As the district court aptly recognized, Volvo’s contention presents an issue of statutory construction, and a federal court sitting in diversity is obliged to apply state law principles to resolve such a question, utilizing such principles as enunciated and applied by the state’s highest court. See Volvo Trademark, 416 F.Supp.2d at 410 (citing Cooper Distrib. Co., Inc. v. Amana Refrigeration, Inc., 63 F.3d 262, 274 (3d Cir.1995)). The Arkansas Supreme Court has not resolved the statutory issue raised by Volvo, and we are therefore obliged to interpret the Arkansas Act by applying the principles of statutory construction that would guide an Arkansas court in making such a decision. See CTI/DC, Inc. v. Selective Ins. Co. of Am., 392 F.3d 114, 118 (4th Cir.2004).
The district court made a thorough explanation of its ruling on this issue. According to the applicable Arkansas legal principles, if a statute is clear, it is to be given its plain meaning, and courts are not to search for any legislative intent. See Volvo Trademark, 416 F.Supp.2d at 411 (citing Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987)). Arkansas also subscribes to the legal principle of expressio unius est exclusio alterius, meaning “ ‘that the express designation of one thing may properly be construed to mean the exclusion of another.’ ” Id. (quoting Gazaway v. Greene County Equalization Bd., 814 Ark. 569, 864 S.W.2d 233, 236 (1993)).
Applying these controlling principles to the Arkansas Act, the district court concluded that good cause for termination of a franchise under the Act is limited to the eight occurrences specifically enumerated therein. See Volvo Trademark, 416 F.Supp.2d at 412. The court deemed the Arkansas Act to be clear on its face, and determined that the express designation of those eight occurrences precluded any other circumstance from constituting good cause for a franchise termination. Id. at 411. As a result, the court concluded that the Arkansas Supreme Court would have held that the “circumstances constituting ‘good cause’ for termination under the [Arkansas Act] are limited to those expressly designated in” the Act and, because Volvo’s actions did not fall under one of the enumerated occurrences, it had terminated Clark’s Dealer Agreement in violation of the Arkansas Act. Id. at 412, 416-17.
Volvo, 510 F.3d at 482-83 (footnote omitted).
We agree with the reasoning set forth in the Volvo decision. We hold that the plain language of the statute, along with the canon of statutory construction expressio unius est exclusio alterius, prohibits an interpretation of the AFPA’s list of circumstances constituting “good cause” for termination that includes circumstances not specifically listed in section 4-72-202. Accordingly, we answer the first certified question in the negative. The market withdrawal of a product or of a trademark and a trade name for the product does not constitute “good cause” to terminate a franchise under Arkansas Code Annotated section 4 — 72—204(a)(1).
Before leaving this point, we note that in its brief before this court, CNH claims that by interpreting the statutory prohibition against termination of a franchise without “good cause” as not applying to market withdrawals, this court can avoid the prospect of a state-imposed “exit toll” that would raise Commerce Clause concerns. At our discretion, we answer questions of law certified to us by order of a federal court of the United States. See Ark. Sup.Ct. R. 6-8. The “exit toll” issue is not within the question of law we accepted, and we decline to address it.
Liability Under Arkansas Code Annotated section ⅛-72-S10(b)a)
The second question certified to this court is whether, under the facts of this case, liability under Arkansas Code Annotated § 4 — 72—310(b)(4) (Repl.2001) is created when a manufacturer terminates, cancels, fails to renew, or substantially changes the competitive circumstances of the dealership agreement based on re-branding of the product or ceasing to use a particular trade name or trademark for a product while selling it under a different trade name or trademark.
Section 4 — 72—310(b)(4) provides that it is a violation of the Farm Equipment Retailer Franchise Protection Act for a manufacturer to:
Attempt or threaten to terminate, cancel, fail to renew, or substantially change the competitive circumstances of the dealership agreement based on the result of a natural disaster, including a sustained drought in the dealership market area, labor dispute, or other circumstances beyond the dealer’s control.
(Emphasis added.)
Thus, it is clear that section 4-72 — 310(b)(4) proscribes only attempts or threats to terminate, cancel, fail to renew, or substantially change the competitive circumstances of the dealership agreement. Actual termination, cancellation, failure to renew, or substantially changing the circumstances of the dealership agreement are not addressed in this section; therefore, no liability is created for those actions under section 4-72-310(b)(4). Accordingly, we answer the second certified question in the negative and hold that no liability under section 4-72-310(b)(4) is created when a manufacturer terminates, cancels, fails to renew, or substantially changes the competitive circumstances of the dealership agreement based on re-branding of the product or ceasing to use a particular trade name or trademark for a product while selling it under a different trade name or trademark.
Remedies Under the AFERFPA
The final question this court must consider is whether, under the facts of this case, the sole remedies for a violation of the AFERFPA are: (1) the requirement that the manufacturer repurchase inventory for a termination without good cause, and (2) damages, costs, and attorneys’ fees that result from the failure to purchase inventory as provided in Arkansas Code Annotated section 4-72-309 (Repl.2001), or whether other remedies are also available.
Section 4-72-309 provides:
If any wholesaler, manufacturer, or distributor fails or refuses to repurchase any inventory covered under the provisions of this subchapter within sixty (60) days after shipment of the inventory, he or she shall be civilly liable for one hundred percent (100%) of the current net price of the inventory, plus any freight charges paid by the retailer, the retailer’s attorney’s fees, court costs, and interest on the current net price computed at the legal interest rate from the sixty-first day after shipment.
Hobbs states that the 1991 amendments to the AFERFPA, adding section 4-72-310, created new rights not tied to a manufacturer’s inventory repurchase rights. Hobbs avers that the AFERFPA contains two sets of rights for dealers — rights that exist during or after the term of the dealership agreement and rights that exist only upon termination of the dealership agreement. Hobbs further states that, while the legislature provided farm equipment dealers with new rights, the legislature failed to specify any particular remedy for violation of these new rights. Still, Hobbs asserts that it is not without a remedy because article 2, section 13 of the Arkansas Constitution requires that there be a remedy for every right created by the legislature. That section provides:
Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.
Ark. Const, art. 2, § 13.
Hobbs correctly states the law, but it appears to suggest that this constitutional provision means that it is entitled to money damages. Article 2, section 13 provides that one wronged is entitled to a “certain remedy,” but it does not state that the remedy must be in the form of money damages. “In the absence of a statutory provision expressly authorizing it, damages cannot be recovered by either party.” White River Land & Timber Co. v. Hawkins, 128 Ark. 277, 279, 194 S.W. 9, 10 (1917). There is no language in section 4-72-310 authorizing money damages. Therefore, the remedies available under that section are limited to remedies other than money damages, such as injunctive relief and declaratory relief. As such, we answer the third question in the negative. The sole remedies for a violation of the AFERFPA are not those provided in section 4-72-309; parties may also seek remedies other than money damages.
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PER CURIAM.
Appellant Steve Stewart, by and through his attorney, Gene E. McKissie, has filed a motion for rule on clerk.
Stewart was convicted of multiple counts of perjury by an Ashley County jury; the judgment and commitment order was entered on June 3, 2008. On June 19, 2008, Stewart filed a timely notice of appeal. Shortly thereafter, the court reporter informed Gene McKissie, Stewart’s attorney that, due to the number of appeals pending, he would need to file a motion for extension of time to lodge the record. Mr. McKissie filed such a motion on August 19, 2008, and the circuit court granted it on August 21, 2008. The record was tendered to this court on January 12, 2009, and our clerk refused to accept it as it was tendered more than seven months from the date of the entry of the judgment from which the appeal is taken. See Ark. R.App. P.-Civ. 5(b)(2). Mr. McKissic has now filed the instant motion for rule on clerk in which he accepts responsibility for miscalculating the deadline for filing the record.
This court clarified its treatment of motions for rule on clerk in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. McKissic has candidly admitted fault. The motion is, therefore, granted, and a copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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JIM GUNTER, Justice.
Appellant appeals the dismissal of his complaint for an accounting from his ex-wife, who was the custodian of two bank accounts established in their child’s name, both of which were closed approximately fifteen years ago. Appellant asserts that the trial court erred in finding that (1) the child, who has now reached the age of majority, was a necessary party to the action, and (2) the complaint was barred by laches. We granted appellant’s motion to transfer this case to our court; therefore, we have jurisdiction pursuant to Ark. Sup.Ct. R. 1 — 2(b). We find that appellant’s arguments are procedurally barred and therefore affirm.
The parties in this case were divorced on September 14, 1992, and had one child, Arthur, who was four at the time of the divorce. Appellee had custody of Arthur until September 7, 2001, when custody was given to appellant in an agreed order. Litigation continued between the parties on various matters, and on July 11, 2003, the court issued an order declining to exercise jurisdiction over appellant’s request for an accounting of two bank accounts previously established in the child’s name with appellee as the caretaker of the accounts. One of the accounts, the “Worth-en Bank” account, was opened in 1990 and closed in 1991; the other account, the “Shearson Lehman” account, was opened in 1992 and closed in 1996. The court did note, however, that appellant could pursue his request for an accounting in a separate proceeding.
On March 9, 2006, appellant filed a complaint for an accounting of the funds in the above-mentioned accounts and requested that appellee be ordered to repay the funds from the accounts with interest. In pleadings filed April 14, 2006, and July 26, 2006, appellee denied any wrongdoing, raised various affirmative defenses including laches, and made a motion to dismiss the complaint.
Arthur’s eighteenth birthday occurred on August 30, 2006. On May 2, 2007, appellee filed a motion to dismiss or substitute parties due to the child reaching the age of majority. A hearing on the matter was held on August 3, 2007. After hearing arguments from counsel, the court orally ruled that the claim was barred by laches and the lack of a necessary party before the court. The court found that even if the request for an accounting was granted, the person entitled to receive any funds, Arthur, was not before the court. Prior to the entry of the court’s order, appellant filed a motion to reconsider on November 27, 2007, asserting that the court had erred in applying the doctrine of laches, as appellee had failed to show a detrimental change in position due to defendant’s delay, and that the court had erred in ruling that Arthur was no longer a minor and appellant could not act on his behalf, because under the Uniform Transfers to Minor Act (UTMA), a child is considered a minor until he or she reaches the age of twenty-one. The court entered its final order dismissing the complaint on December 20, 2007. The order stated that the complaint was dismissed because “Arthur has reached the age of eighteen (18) years and is a necessary party because any relief would go from Ms. Brackenbury to Arthur. The Court also finds the complaint is barred by laches as Ms. Bracken-bury cannot be required to produce records from 1991 forward.” Appellant filed a notice of appeal from this order on January 18, 2008.
Appellant first argues that the trial court erred in relying on the general statutory age of majority, eighteen, in deciding that Arthur was a necessary party, instead of the specific statutory provision of the UTMA, which defines any person under the age of twenty-one as a minor. Ark. Code Ann. § 9-26-201(11) (Repl.2008). Appellant also argues that the court erred in finding that appellant was not the proper party to bring the complaint, as Ark. Code Ann. § 9-26-219 clearly allows the minor’s guardian or an adult member of the minor’s family to petition the court for an accounting, and there is no requirement that the minor be joined as a party. And finally, appellant acknowledges that only one of the disputed accounts, the “Shear-son Lehman” account, was expressly created under the UTMA but argues that both it and the “Worthen Bank” account should be dealt with under the UTMA.
The problem with these arguments, however, is that they are not the arguments that were presented below to the trial court. At the hearing, appellee’s counsel argued that Arthur was no longer a minor under Arkansas law and should therefore be substituted as the proper plaintiff and that appellant was not the proper party to bring the action. In his rebuttal, appellant’s counsel argued that . “[a]s far as ACA 9-26-219, as that applies to uniform gifts to minors, the way that the Act is drafted the actual gift itself— the account — remains in effect until the child turns 21. Arthur is still 18, which I think would address the statute of limitations.” Later, appellant’s counsel and the court had the following exchange:
Mu Phillips: Well, of course, I think as to the uniform gift to minors account, those are valid until the juvenile reaches the age of 21. As far as the account that actually was Arthur’s minor account that was—
The CouRT: But Arthur is now an adult — and I know it’s in effect until he’s 21. But he now is an adult and has a right to assert his rights and privileges as that adult, even for when he was a minor. But it becomes his right when he reaches 18, does it not?
Mr. Phillips: That’s correct. And perhaps we need to join Arthur in the lawsuit ...[.]
This is but one instance in which the court and the parties were clearly in agreement that Arthur was no longer a minor, and yet on appeal, appellant is arguing that under the UTMA, Arthur is still a minor. And, while appellee’s own counsel pointed out below that under Ark.Code Ann. § 9-26-219, any adult member of the minor’s family can bring the accounting action, appellee’s counsel also suggested that the right to do so extinguished when Arthur turned eighteen, and appellant never rebutted this contention by making the argument that he is now making on appeal. And while it is true that appellant raised these arguments in his motion to reconsider, the arguments raised in that motion are not properly before us. Under our case law, we treat a motion to reconsider in a bench trial like a motion for a new trial. See, e.g., Ark. Office of Child Support Enforcement v. Parker, 368 Ark. 393, 246 S.W.3d 851 (2007) (finding that a motion to reconsider was deemed denied pursuant to Rule 59 of the Arkansas Rules of Civil Procedure). Under Rule 59, such a motion made before entry of the final judgment becomes effective and is treated as filed on the day after the judgment is entered. So, in this case, the motion was treated as if it was filed on December 21, 2007, and was deemed denied on January 21, 2008.
Our case law makes clear that when a motion for new trial has been deemed denied in accordance with Ark. RApp. P.-Civ. 4(b)(1), the only appealable matter is the original judgment order. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). Under Ark. R.App. P.-Civ. 4(b)(2), a notice of appeal filed before the disposition of a posttrial motion is effective to appeal the underlying judgment or order, but to also seek an appeal from the grant or denial of the motion, an amended notice of appeal must be filed within thirty days, and we have no such amended notice of appeal in this case. Also, this court has repeatedly held that an objection first made in a motion for new trial is not timely. Lee, supra.
Based on the foregoing, we hold that appellant’s arguments were not presented to the trial court in a timely manner, nor are the arguments properly before this court on appeal. See Yant v. Woods, 353 Ark. 786, 120 S.W.3d 574 (2003) (holding that, for the purposes of determining the issues for which appellate review is preserved, a party cannot change on appeal the grounds for an objection or motion made at trial, and is bound by the scope and nature of the arguments made at trial). We therefore are precluded from addressing the merits of appellant’s arguments on this point and affirm the trial court.
Because we affirm the trial court on this point, we need not address appellant’s second argument concerning laches. See Weiss v. McLemore, 371 Ark. 538, 268 S.W.3d 897 (2007). In addition, we note that appellant’s second argument was also raised for the first time in his motion to reconsider, and thus we would be precluded from reaching the merits of his argument. Yant, supra.
Affirmed.
BROWN, J., not participating.
. As to appellant’s argument concerning whether both accounts should be handled under the UTMA, while this issue was discussed by the parties below, we have no ruling on the issue by the trial court, therefore we will not address it. See Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002) (holding that a party’s failure to obtain a ruling is a procedural bar to this court’s consideration of the issue on appeal). We also note that appellant has failed to develop any argument on appeal that, because the "Worthen Bank’’ account was not expressly created under the UTMA, common law principles would be applied to its administration. | [
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Wood, J.
Appellant was convicted of an assault with intent to kill one Eli Evans.
Counsel for appellant urged that the evidence was not sufficient to uphold the conviction. We have examined the record carefully, and in our opinion the evidence is ample to sustain the verdict. It is insisted also that the court erred in permitting witness Josephine Evans to give the number and names of her children, and to tell that appellant was the father of two of them. It appears that Josephine Evans was the stepdaughter of appellant. The prosecuting witness, Eli Evans, was visiting her at appellant’s house on the night of the assault. At that time they were not married. Josephine testified that on the night of the assault sometime after Eli left for his home, her stepfather came in, and she heard him tell her mother that “that fellow Evans would’nt tell no more lies on him.” The prosecuting witnes Eli Evans, testified positively that appellant assaulted him. Tl testimony of Josephine Evans showing the illicit relations betwec her and appellant was proper as tending to show a motive for' tl assault.
Counsel contends further that the court erred in not pe mitting the defendant to ask the witness W. L. Jeffries the follov ing question: “After you heard that the defendant got two shel from his daughter-in-law [stepdaughter], did you not ask tl defendant about it?” And that the court erred in not letting tl: witness W. L. Jeffries answer the following question: “Did n< Foster Littlejohn tell you, while under arrest in Clarendon, th; he borrowed two shells from his daughter-in-law [stepdaughter and did he not tell you that he put the shells on the mantel pieo and that they were there now; and did you not go out there an get the shells ?” These questions were designed. to elicit sel: serving declarations, or might have done so, and the court rule correctly in not permitting the witness to answer them.
The alleged remarks of counsel for the State which ar pressed upon us as reversible error are not preserved in the re cord, and there is nothing before us for decision on that ground.
Finding no error, the judgment is affirmed. | [
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Riddick, J.
This is a suit in equity by the city of Texarkana against the collector of taxes for Miller County to restrain him from paying certain road taxes collected by him into the county treasury, and to compel him to pay four-fifths of the road tax collected on property within the limits of said city into the treasury of the city, to be expended by the city for the improvement of its streets, and further to enjoin the county judge of that county from expending such part of the tax on roads outside of the city limits.
The defendants appeared, and filed a demurrer to the complaint, which was sustained by the chancellor, and the, complaint dismissed.
The questions raised by the appeal from this judgment are, first, whether any' portion of this road tax can be properly expended on the streets of a city; and if it be lawful to do so, whether it should be expended by the county judge, or should be turned over by thé collector to the city authorities to be expended by them. After due consideration of the matter, we are of the opinion that, as the law now stands, the road tax, when collected, is a fund belonging to the county, and that it should be paid into the county treasury to be expended under the orders of the county judge. As the city has control of its streets, it is probably true that the county court could not carry out a system of street improvement against the wishes of the municipal authorites. To avoid conflict in jurisdiction between the county and city officers in such matters, further legislation may be required. As the law now stands, we think the expenditure of this fund is under the jurisdiction of the county court, which, so far as street improvement is concerned, must act in conjunction with the city authorities having control of the streets.
On the question as to whether the county judge had the right .to expend any part of this road tax fund bn the streets of the city, there is more room for doubt. In some of the counties of the State a large portion of such tax is paid by residents of cities of the first class on property located in such cities. If the law .did not allow any portion of the tax to be expended on roads within the city limits, it is not unlikely that the result would be that many of these taxpayers would refuse to vote for the tax, and the collection of the tax might in that way be defeated. Although the purpose of the tax is to improve the public roads and highways of the county, still a street is a public highway; and while ordinarily, in speaking of public roads and highways, one does not include streets, yet such language may include streets as well as other highways. Now, as this tax is paid by owners of property in cities, as well as by those who live outside of cities, the presumption should be that it was intended to be used for the benefit of all the property owners and citizens of the county, without regard to whether they live within or without the limits of a city, and that the discretion of the county judge in that regard is unfettered, unless the law is plainly to the contrary. We see nothing in the Amendment to the Constitution which authorizes the collection of a county road tax that prevents such an equitable distribution of the fund. The Legislature seems to ■ have adopted this view of the amendment; for in the act of 1899 (see Kirby’s Dig. § 7351) it requires this road tax to be expended upon the roads of the district where the tax was collected, though some of the towns and cities of the State have been constituted separate road districts. In a subsequent act (section 7358) it directs that.at least one-fifth of such tax collected within the limits of cities of the first class shall be expended on roads outside of such cities, leaving the place or places in the . county where it is to be expended to the discretion of the county judge, from which it may be clearly implied that the remaining four-fifths may be expended in the city.
Now, the facts in this case show that Garland Township of Miller County is one of the road districts of that county, and that the City of Texarkana is situated in that district. Under the acts of the Legislature above referred to, we think that the county judge may expend the road fund collected in that district upon the roads of the district as in his discretion may seem best, except that one-fifth of that part of the tax collected in the city of Texarkana, a city of the first class, must be expended on roads outside of the city, and such fifth may be expended in any portion of the county'where the county judge may deem that it can be used to the best advantage. In other words, under these statutes the amount of the road fund collected in cities of the first class which can be expended within the city is limited to four-fifths of the tax collected in such city. No part of the tax collected outside of the city can be expended in the city, and but four-fifths of that collected in the city can be expended on the roads or streets in the city limits, for the Legislature, which has full control over public highways, has so enacted.
It results from what we have said that in our opinion the judgment of the court refusing to enjoin the collector from paying over, the tax in' question to the county treasurer was right, and the same is affirmed. | [
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Battue, J.,
(after stating the facts.) The appellant has abandoned the first ground for removal set out in its petition. He has no right to removal on the second ground. Dick v. Poraker, 155 U. S. 404, cited by him to sustain his petition as to the second ground, does not apply. That was a suit in equity brought by a citizen of Ohio against a citizen of Illinois in the circuit court of the United States for the Eastern District of Arkansas, to remove the cloud from a title of real estate situated in that district. The jurisdiction was sustained upon the ground that the suit was local, and had to be brought in the district where the real estate is situated. That is not the case in the action before us. It is transitory. And there is not that diversity of the citizenship of the parties that is necessary to give the United States Circuit Court jurisdiction in such actions; “a citizen of one of the territories of the United States” not being “a citizen of a State, within the meaning of the Constitution and judiciary acts.” Hooe v. Jamison, 166 U. S. 395; Mansfield, Coldwater & L. M. Ry. Co. v. Swann, 111 U. S. 379; Snead v. Sellers, 66 Fed. 37.
The amended petition for removal was filed too late, it being filed after the time allowed by the statutes of this State for the filing of answers to complaints. Kansas City, Fort Scott & Memphis Railroad Co. v. Daughtry, 138 U. S. 298.
The instructions of the court, and the remarks of counsel, which we have copied herein, are erroneous and prejudicial. “It is well settled that one who is injured by the mere negligence of another cannot recover at law or in equity any compensation for the injury if he, by his own * * * negligence or willful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him; except where the direct cause of his injury is the omission of the other party, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence.” This rule applies to passengers as well as to other persons. Little Rock & Fort Smith Railway Company v. Miles, 40 Ark. 298; Fordyce v. Merrill, 49 Ark. 277; Little Rock & Fort Smith Railway Co. v. Cavenesse, 48 Ark. 106; Little Rock & Fort Smith Railway Co. v. Pankhurst, 36 Ark. 371; St. Louis, Iron Mountain & Southern Railway Co. v. Martin, 61 Ark. 549.
This court has held that it applies and is in force in cases where the employees of a railroad are required by statute to keep a lookout, and when obedience to the statute would have avoided the result of the contributory negligence. St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235; St. Louis Southwestern Ry. Co. v. Dingman, 62 Ark. 245; St. Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. 364.
In Little Rock Traction & Electric Company v. Kimbro, 75 Ark. 211, this court held that conductor on a street railway, seeing the acts of a passenger on the street car, would not be in duty bound to interfere to protect him, unless he could have reasonably anticipated that he would be injured without such interference. He was not bound to do a useless act, or to interfere unnecessarily with the freedom of the passenger. No such rule was embodied in the instructions of the court, and the remarks of counsel. The facts and principles involved in the two cases are different.
Reversed and rerhanded for new trial.
Hiix, C. J., being disqualified, did not participate. | [
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Wood, J.
The only question is, did appellee at the time of bringing his suit have title by limitation? The decree of the lower court recites: “The court, after due consideration, is of the opinion that, by reason and by virtue of the open, notorious, continuous, exclusive and adverse possession thereof by complainant for more than seven years under his donation deed, the aforesaid possession having begun prior to the conveyance to Mrs. Sarah S. Sibly by Geo. Sibly, the complainant has a good and valid title to the land described in the original bill of complaint as follows: ‘east half of west half, section 19, township 1 south, range 7 west.’ The decree of' confirmation of the tax sale in Sarah S. Sibly is and constitutes a cloud upon complainant’s title acquired by reason of said limitation, and should be removed.”
To set out and discuss the evidence upon which we base our conclusion could serve no useful purpose. The question is purely one of fact. The chancellor’s finding went further than was necessary to give title to the appellee. Two years open, continuous, exclusive and adverse possession under a donation deed gives title. Helena v. Hornor, 58 Ark. 151; Finley v. Hogan, 60 Ark. 499; Woolfork v. Buckner, 60 Ark. 163; Crill v. Hudson, 71 Ark. 390; Boynton v. Ashabranner, 75 Ark. 514.
We have carefully examined the record, and find that the appellee had title to the land in controversy by adverse possession under his donation deed, when he brought his suit. The decree is affirmed. | [
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McCulloch, J.
This is a suit brought against appellant railroad company by the administrator of the estate of John Gunn, deceased, for the benefit of the widow and the next of kin of said decedent for damages occasioned by reason of the alleged negligent killing of deceased by a train' of appellant. Damages are laid in the sum of $25,000, and plaintiff recovered a judgment- for $10,000, from which the defendant appealed.
Appellant claims that the evidence is insufficient to sustain the verdict, and that the court erred in refusing to instruct the jury peremptorily to return a verdict in its favor, but concedes that, if the testimony is legally sufficient, there was no error in the instructions or other proceedings. Deceased was a section hand employed by appellant, and worked under one Lisk as foreman. On the morning of September .12, 1901, deceased and the foreman, and gang,' of which he was a member, started on a handcar from Coin, a station on appellant’s road, to the place of their labor of the day. After running only about one-fourth of a mile they discovered the approach of a local freight train, and hastily stopped the handcar, and endeavored to remove it from the track. It is contended on behalf of appellee that Gunn was killed while assisting, under orders of the foreman, in the removal of the handcar from the track, and while so engaged appellant was guilty of negligence, through its foreman, in failing to warn him of the imminent danger. Appellant claims, on the other hand, that Gunn was duly warned of the near approach of the train, and, pursuant to the warning, left the track, but voluntarily returned to secure his dinner pail, and in so doing was struck by the engine and killed. On this point there is a sharp conflict in the testimony, and it is -not the province of this court to determine where the weight lies. The foreman and several of the section hands testified that, when they discovered the approaching train, they, with deceased, stopped the handcar, and tried to lift it off the track, and partially succeeded, but one end of the car was against a stump, and they failed to get it off; that the foreman then called out to the hands to leave the car, and they all ran up the hill, and across a ditch about twelve feet away from the track, when deceased returned to the car to get his dinner pail, and was struck by the train. George Carson, a witness introduced by the plaintiff, testified that he was about 200 yards away, and saw the accident, which he described as follows: “There was one man standing at the left corner of the car, and when they went to throw the car off they throwed the car this way — one side — and there were three at that end, and two at this, and when it caught that way, the car dropped down, the hind end, and they seemed to give away, and let it drop two or three times before they got it off. About the time I thought they had shoved the car off the track, two of these men run right around the car there this way, and this man left at this corner had never raised up out of a stooping position, and these two men, just as they passed by, the engine struck the car, they just got away.”
“Q. Before the car was struck, had any of these men left the track and gone back?
“A. No, sir; I never saw any come back; no man at all.”
George Gunn, a son of deceased, testified that the accident occurred in his view, and he described it as follows:
“Well, like this way: the track (indicating) and the car running up that way, and they were all on there running. He was right there on the front end, and when they got ready to get off the car, why, three of them got off at one end, and two at the other end, and they moved the car around, and got it across the track that way, and then went to lifting the car and got it, it looked to me like, pretty near off, and part of the men started to run up the bank, and two of them stayed with that end of the car, and it looked to me like, I know it got one of them, and it looked like the other one just got away.
“Q. Which way were you looking?
“A. I was looking right up the track.
“Q. ■ Was there anything in the track to obstruct your view?
“A. No, sir; he was struck at this corner of the car (indicating) .
“Q. And the other man ran around the car, and ran up the bank ?
“A. Yes, sir.
“Q. Had any of these men prior to that time left the handcar before that ?
“A. They left when the train was pretty close.
“Q. They left just about the time the train struck the man?
“A. Yes, sir.
“Q. Did you see anybody .before the train struck the car and the man; did you see any one run up the bank and come back ?
“A. No, sir; no, sir.”
Two of the witnesses, John Bridgeford, and T. L. Plummer, who were passengers on the train, testified that they looked out of the car window, and saw the engine strike the handcar and a man who appeared to be trying to get it off the track, and that several of the men were running up the hill. The testimony of both these witnesses tended to show that deceased did not leave the handcar and return after crossing the ditch. The jury was therefore warranted in finding from the testimony that deceased was struck while at work, under order of the foreman, removing the car, and that he did not leave the track and then return in the face of danger. Treating it as thus established that the deceased did not leave the handcar or track and return after receiv ing warning of the danger, there is no testimony tending to show contributory negligence on his part. Joining his fellow workmen at the accustomed meeting place that morning, he and they pro-ceded, by direction and command of the foreman, toward the place at which they were to work. If the train was thus expected, and due care was not observed in awaiting its passage, it was the negligence of the foreman, who was vice-principal, and not the negligence of the section hands. They met the train in a curve, and there is evidence that no signal was given from the approaching train by whistle or bell". When the party discovered the approach of the train, they hastily descended from the handcar, and endeavored to remove it before the train reached them.
The language of the court in St. Louis, I. M. & S. Ry. Co. v. Rickman, 65 Ark. 138, is particularly applicable to the facts here: “What the plaintiff did was manifestly done in obedience to the orders of the foreman to get the car off quick. Plaintiff had a right to presume that the foreman, who was in a position to devote his whole attention to the approaching train and the efforts of his men to get the handcar off the track, could better determine than he what was best to be done under the circumstances. We do not think that the danger was so apparently imminent but that he could reasonably rely upon the direction of the foreman. He did so, and was injured. Pie should not be charged with contributory negligence under the circumstances.”
We-think there was sufficient evidence to sustain a verdict for the plaintiff, and the court did not err in refusing to take the case from the jury.
It is set forth as a further ground for new trial that the verdict is excessive. The testimony fairly establishes the fact that deceased contributed to the support of his family as much as $350 per annum, in addition to his earnings in supervision of his farm, and that the present value of an annuity in that sum for his expectancy would be $4,690. He owned a small farm of eighty acres of land, and was out of debt. It is also shown by undisputed testimony that he was a very industrious man of good moral character, and was especially solicitous as to the mental and moral training of his children. That he was a kind and indulgent father, provided well for his family, and gave much attention to the proper instruction and education of his children. He had five children, the youngest being only two years of age at the time of the accident. This is a well-recognized element of damages in suits of this kind for the benefit of minor children, and it is held to be for the jury to say, from all the facts and circumstances found, what will be a fair compensation to the children for the pecuniary loss of the care and attention of the father in the way of training and instruction. Railway Co. v. Sweet, 60 Ark. 559; Railway Co. v. Maddry, 57 Ark. 306.
Opinion delivered January 6, 1906.
J. M. Moore and W. B. Smith for appellant, on petition for rehearing.
1. The act of April 25, 1901, is unconstitutional (1) because it limits the circuit judges in the-exercise of their rights to control and regulate procedings in their courts so as to do justice between litigants, by restricting the exercise of the discretion to two events; (2) because it prohibits the circuit judge from entering remittitur except upon the losing party waiving his constitutional right of appeal.
2. If the act was intended to apply to the Supreme Court, it is unconstitutional, being an encroachment on the functions of the judiciary. Art. 4, § § 1 and 2,Const.; 49 Ark. 160; 44 Ark. 273; 16 Ark. 384; 24 Ark. 91; 5 Ark. 710; 6 Ark. 71; 14 Ark. 568; 39 Ark. 82. The Legislature can only prescribe the mode and manner that shall be pursued in bringing cases before the Supreme Court. 25 Ark. 489; art. 7, sec. 4, Const.; 5 Ark. 362, 365.
3. If intended to be limited to circuit courts only, it is unconstitutional for reasons supra, and because it is a denial of the complete justice intended by sec. 13, art. 2, Const. See also 10 Lea (Tenn.), 366; 49 Ark. 495.
The amount of damages of this kind being of an indeterminate character, and left largely to the sound discretion of the jury, we cannot say as a matter of law that the verdict is so excessive as to appear to have been given by the jury under passion or prejudice.
The judgment is therefore affirmed. | [
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Hire, C. J.,
(after stating the facts.) 1. The negligence of the company in failing to give the signals, required by law was abundantly established, and the conflict in the evidence on this point has been settled by the jury. The next question, and the one most earnestly presented here, is that‘the evidence showed that Hitt was guilty of contributory negligence in driving on the track under the circumstances set out in the statement. Mr. Justice Brewer, speaking for the Supreme Court of the United States, said: “It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them. (Citing authorities.)” Richmond & D. Rd. Co. v. Powers, 149 U. S. 43. The authorities sustaining this doctrine are collected in St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549, 33 S. W. 1070. Testing the evidence upon this principle, it cannot be said that the facts disclose a situation rendering it negligence for Hitt to drive onto the track. At a distance of 82 feet from the track he took the precautions required by law and common sense, and, neither seeing nor hearing anything to indicate a train was coming on the main track, and, the way being made clear, and employees standing near, with better opportunity of seeing or hearing than he had, who would doubtless warn him for humanity’s sake alone, if no duty rested on them, not to cross in front of a rapidly approaching train, and, after consulting with his son, the fatal drive began. While it is true the sheet of the wagon obstructed the vision on either side, and in a measure the hearing, yet they believed from their investigation that the way was clear, and they continued to look ahead and listen. The electric arc light and the headlight of the freight engine, casting their rays on the crossing, might well tend to prevent the discovery of the light from the headlight of the approaching train. The situation confronting Mr. Hitt was not such as requires the court to say, as a matter of law, that it was per se negligence, under the circumstances, to attempt to cross the track. The ringing bell or sounding whistle would doubtless have given the warning of the approaching train, which was not otherwise apparent to Mr. Hitt or his son. These are facts from which fair-minded men may draw different conclusions as to whether the care exercised was proportional to the danger to be avoided, and such as the situation called for from men of prudence and caution. When such are the facts of a case, then the question must be settled by a jury, under proper instructions.
2. The next matter assigned as error is the giving of the third and fourth instructions, which are set out in the statement of facts. The point urged against these instructions is that they displayed to the jury an expression of opinion upon the part of the court upon the weight of the evidence. It is further urged against the third that it has singled out certain parts of the evidence in favor of the plaintiff, and disregarded every item of contributory negligence, and, without referring to the same, in a counter statement, has said the weight of this specific evidence is sufficient to set aside all the evidence establishing contributory negligence. If there is evidence to sustain a particular theory of a case, the court should properly instruct the jury as to such theory. Smith v. State, 50 Ark. 545, 8 S. W. 941. Instructions should declare the law as applicable to any view of the facts which upon the evidence may be taken by either of the parties to the cause on trial. Luckinbill v. State, 52 Ark. 45, 11 S. W. 963. Every instruction should be hypothetical, i. e., predi cated upon the supposition that, if certain evidence be true, then the legal consequence resulting therefrom is one way or the other. State Bank v. McGuire, 14 Ark. 530; Collins v. Mack, 31 Ark. 684. It is error to refuse to give a specific instruction correctly and clearly applying the law to the facts in the case, even though the law, in a general way, is covered by the charge given. St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134, 62 S. W. 64. Applying these settled principles to the instruction in question, it cannot be said that they are open to the objections urged. Each side prayed and was granted many specific instructions, covering phases of the case which they desired drawn sharply to the attention of»the jury. The court fails to find error in them, and, taken, together, they consistently present the whole case, generally and specifically.
3. Error is assigned in the refusal of the court to give the sixth instruction. The distance from the center of the side track upon which the freight train stood to the center of the main track, upon which the train was approaching, was 14 feet. It was therefore an impossibility to have avoided the accident at that late moment. The mules drawing the wagon were on the main track before the wagon could have cleared the freight train, and the freight train behind them was whistling at that moment. The care is to be measured by the act of going into this danger, not when it is too imminent for avoidance, and when excitement and danger dethrone judgment. The case was properly submitted under instructions fully explaining the care required, and it was not error to refuse to give this one.
4. Objection is made to admission of testimony of a life insurance agent as to the expectancy of life, as shown by the mortality tables, of a man of Hitt’s age, and an estimate of the amount required to purchase an annuity equal to Hitt’s income. These tables were held admissible, and their uses explained, in Arkansas Midland Ry. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550. The record fails to show the calculation complained of, but it •could not be error, as it was but relieving the jury of the labor involved in it. The court gave the following instruction on the subject: “If your verdict should be for the plaintiffs, you will assess the damage at such sum as will compensate them for their pecuniary loss resulting from the death of the husband and father. In estimating this loss, it is proper for you to take into consideration the age, health, habits, occupation, expectation of life, mental and physical capacity for and disposition to labor, and the probable increase or decrease of that ability with the lapse of time; his earning capacity; the care and attention, the instruction and training, one of his disposition and character may be expected to give to his family — and thus determine the value of the life. From this amount deduct the personal expenses of deceased, and the balance, reduced to its present value, would be the present amount of your verdict, provided such of the deceased’s children as were minors at his death or at this time would not be entitled to any compensation on account of death of deceased for a period beyond the time of their attaining their majority.” It is seen, therefore, that the court properly gave the elements to consider in arriving at the compensatory amount. If the calculation was made, it was useful only to reach the probable amount required to purchase the annuity to represent his income, and from such amount personal expenses were directed to be deducted.
Opinion delivered July 29, 1905.
5. The verdict is assailed as excessive. It is less, by the sum of $1,054, than the sum representing the present value of his income. Of course, his personal expenses should be deducted —likely much more than said $1,054; but, on the other hand, there was another element proper to enter into the verdict, and that was the loss of his care and attention to his minor children. St. Louis & N. A. Rd. Co. v. Mathis, ante, p. 184, and cases there cited. The verdict is not excessive.
The judgment is affirmed.
Battle and Riddick, JJ., dissent. | [
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McCuleoch, J.,
(after stating the facts.) An insurance policy, like any' other contract, which by reason by mistake in its execution does not conform to the real agreement of the parties, may be reformed in a court of equity. Thompson v. Insurance Company, 136 U. S. 287, 10 Sup. Ct. 1019, 34 L. Ed. 408; Snell v. Insurance Company, 98 U. S. 85, 25 L. Ed. 52; Jamison v. State Insurance Company, 85 Iowa, 229, 52 N. W. 185. The proof fully warranted the decree of the court reforming the policy in the particulars specified. The testimony is undisputed that a mistake was made in writing the policy to and in the name of Amis, instead of the lumber company, and in writing it on all the lumber, instead of on the lumber in the loading shed. This disposes of the contention of appellant as to the coinsurance clause in the policy. Treating it as reformed so as to insure only 'the lumber in the shed, the insurance thereon was more than the percentage of value required in the policy, and the terms-of this clause were complied with.
It is contended on behalf of appellant that, because of the stipulation in the Greenwich policy requiring five days to the assured before cancellation, the policy was not legally canceled, and that the substitution by the agent of the Phoenix policy was unauthorized. We cannot sanction this view. The stipulation for five days’ notice of cancellation was made for the benefit of the assured, and could be waived by the assured. Southern Ins.. Co. v. Williams, 62 Ark. 382, 35 S. W. 1101; Kirby v. Ins. Co., 13 Lea, 340; Buick v. Mechanics’ Ins. Co., 103 Mich. 75, 61 N. W. 337. The policy was in fact canceled by the agent, and his act in so doing was ratified as soon as brought to the attention of the assured. The stipulation was a part of the Greenwich policy, and appellant had no interest therein or concern therewith. Appellant's agent issued a policy on the property in question, which was in force at the time of the fire. The agent wrote the assured: “I am cancelling the lumber policy and rewriting same in the Phoenix of Brooklyn, and shall send you policy at once. * * * Please return the lumber policy in Greenwich at once.” He mailed the policy to the assured before the fire, and same reached the postoffice at Rison, the home of Mr. Amis, before the fire, but was not taken from the office until the next day. Meanwhile the fire occurred. The proof shows that a previous agreement existed between Amis and Banks, the agent, that the property of the lumber company should be kept insured. No particular insurance company or companies were mentioned, and Amis gave no concern to that matter. He constituted Banks his agent for the purpose of selecting the company or companies, and, pursuant to this arrangement, Banks, without notice to Amis, canceled the Greenwich policy, and substituted therefor the Phoenix policy, and mailed it to Amis before the fire occurred. Banks, though the agent of the insurance companies, could be and was made the agent of the insured for those purposes. Ostrander on Insurance (2 Ed.), § § 41, 42; Schauer v. Queen Ins. Co., 88 Wis. 561, 60 N. W. 994; Mich. Pipe Co. v. Mich., etc., Ins. Co., 92 Mich. 482, 52 N. W. 1070, 20 L. R. A. 277; Dibble v. Northern Ins. Co., 70 Mich. 1, 37 N. W. 704, 14 Am. St. Rep. 470; Arnfeld v. Guardian Ins. Co., 172 Pa. 605, 34 Atl. 580; Huggins, Croker & Cowdy Co. v. People’s Ins. Co., 41 Mo. App. 530. We see no escape from the conclusion that the Phoenix policy was in force when the fire occurred, and that that company is liable for the loss.
Decree affirmed. | [
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Wood, J.
This suit is over certain household furniture claimed by appellant, and which had been attached by appellee, Clark; and was held by the officers for him as the property of one D. P. Terry, the attachment debtor. The appellant was the wife of D. P. Terry.
The question of fact as to whether Mrs. Terry or her husband owned the property attached was properly submitted to the jury, and we would not disturb the verdict upon the evidence in the record. The court erred, however, in permitting one A. J. Forgy to testify to a conversation he had with D. P. Terry at the time Terry assessed his property in 1901. Forgy was the clerk of the county, and had custody of the assessment rolls, and testified that D. P. Terry made the assessment of household goods before him in 1901. He was asked to “state to the jury in that conversation had with Mr. Terry if he claimed the household goods in his residence.” The witness answered: “He stated this to me; he advised with me; he asked me before he made his assessment as to whether he had to assess it both years. He stated he had been to a considerable expense remodeling his house and refurnishing his house, and he wanted to know if his house improvements would be subject to taxation. I told him they would. He made an assessment at an increase of $500 on that item.” This testimony was objected to by the appellant, and her objection was' overruled. This testimony was clearly hearsay and incompetent. Sec. 3095, Kirby’s Digest, subdiv. 4; Collins v. Mack, 31 Ark. 684; Watkins v. Turner, 34 Ark. 663.
This testimony was highly prejudicial, for’ it tended to prove that- Terry was the owner of the property in controversy, and was probably considered by the jury as the strongest testimony on that point. We cannot tell. It was very damaging testimony on the very question at issue between appellant and appellees.
For this error the judgment is reversed, and the cause remanded for a new trial. | [
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Wood, J.
First. It is conceded by the learned counsel for appellants that the question of whether or not there was fraud in *the execution of the release was submitted to the jury upon proper instructions, but it was ably contended in oral argument, and in brief, that the evidence on this issue was not legally sufficient to support the verdict.
We have carefully examined the record on this question of fact, and have reached the conclusion that there was evidence to support the verdict. We do not hesitate to say that, were it the province of this court to pass upon the weight of the evidence and the credibility of witnesses, we would find in favor of appellants on the question of the execution of the release. But, according to the rule long ago established by this court, since followed, and recently approved in many cases, it is the exclusive province of the jury to determine disputed questions of fact. 1 Crawford’s Dig., Appeal & Error, VIII, e; St. Louis Southwestern Ry. Co. v. Byrne, 73 Ark. 377; St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136; St. Louis & S. F. Ry. Co. v. Kilpatrick, 67 Ark. 47; Catlett v. Railway Company, 57 Ark. 461.
The testimony of McMillan certainly tends to establish the allegations . of his reply to the answer of the Hot Springs Railroad Company on the subject of the release. While his testimony in regard to'the preparation and execution of the release is contradicted in every material essential by the positive testimony of witnesses for appellants, and while the testimony of McMillan on this question appears to us to be inherently weak and contradictory, yet, unless, we overturn a long line of decisions of this court, we must hold that all these were matters for the jury to settle; and, as they were properly instructed, their decision is final.
Second. The court, over the objection of appellants, permitted the plaintiff to testify in regard to the custom of the Hot Springs Railroad Company to continue the wages of its employees while they were disabled from work on account of injuries received in the service. This testimony was proper. Appellee was contending that the purported release was fraudulent. It recited a consideration of $346.05 as paid, and $50 in addition to be paid. These recitals conveyed the impression that the railway company had paid and was to pay the amounts named as part consideration for the execution of the release. Proof that these recitals were false, by showing that these amounts were already due him, according to the custom of the company in dealing with its disabled employees, certainly tended to establish the contention of appellee that the alleged release was fraudulent, and that when he signed same he did so under the impression that he was signing a receipt for money due, and which the company had paid according to its custom, and not as a part consideration for a release. "
The testimony was germane to the contention of appellee as to the fraudulent execution of the release. Moreover, appellants have nowhere denied that such was the custom, and they do not now contend, as we understand, that the $346.05 and the $50 were paid as part consideration for the execution of the release. Therefore we do not discover any possible prejudice to appellants by the introduction of the testimony.
Third. The alleged negligence of the appellant Hot Springs Railroad Company in failing to exercise ordinary care to provide McMillan safe appliances, and the alleged contributory negligence of McMillan in failing to exercise ordinary care in the use of the appliances furnished him, were questions of fact properly submitted to the jury, and their verdict is supported by legally sufficient evidence.
Fourth. It was within the sound discretion of the trial court to refuse the motion for new trial setting up newly discovered evidence. Anderson v. State, 41 Ark. 229; Armstrong v. State, 54 Ark. 370; Mutual Life Ins. Co. v. Parrish, 66 Ark. 612; St. Louis S. W. Ry. Co. v. Byrne, 73 Ark. 377.
We find no abuse of the court’s discretion in this case. On the contrary, we think it was properly exercised.
Fifth. The contention that the court erred in rendering a personal judgment against appellant, Choctaw, Oklahoma & Gulf Railroad Company, was not made a ground of the motion for new trial. Such question will not be considered here for the first time.
Affirmed. | [
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Battue, J.
Dave Henson was indicted by a grand jury of the Pulaski Circuit Court for rape committed upon the person of Dula Hoheimer, a female under the age of sixteen years, and was convicted of carnal abuse of a female under the age of sixteen, years, and his punishment was assessed at five years’ imprisonment in the penitentiary, and he appealed.
The indictment against him is as follows:
“The grand jury of Pulaski County, in the name and by the authority of the State of Arkansas, accuse Dave Henson of the crime of rape, committed as follows, towit: The said Dave Henson, in the county and State aforesaid, on the 18th day of February, A. D. 1905, in and upon one Dula Hoheimer, a female under the age of sixteen years, forcibly, violently and feloniously did rape and assault and her, the said Dula Hoheimer, then and there violently, forcibly and against her will, feloniously did ravish and carnally know, against the peace and dignity of the State of Arkansas. (Signed), Lewis Rhoton, Prosecuting Attorney.”
Could appellant be lawfully convicted of carnal abuse of a female under sixteen years of age under this indictment ?
Section 2005 of Kirby’s Digest defines rape as follows: “Rape is the carnal knowledge of a female forcibly and against her will.”
And section 2008 provides: “Every person convicted of carnally knowing or abusing unlawfully any female person under the age of sixteen years shall be imprisoned in the penitentiary for a period of not less than one year nor more than twenty-one years.”
Section 2413 is as follows: “Upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment.”
In Davis v. State, 45 Ark. 464, this court.held: “Under an indictment for murder the accused may be convicted of an assault with intent to kill, provided the indictment contain all the substantive allegations necessary to let in proof of the inferior crime, and the proof show that the offense of which he is convicted and the one charged in the indictment are the same.” The court said: “An assault with an intent to kill, though a felony by our law, is not one of the degrees of homicide, but it is an attempt to commit murder, and is virtually included in every murder that is committed with violence. All the elements of murder, except the actual killing, must conspire to constitute the crime.”
Carnal knowledge of a female is necessary to constitute rape ; and when the female is under sixteen years of age, carnal abuse is included in that offense.
Mr. Bishop says: “Though a man cannot commit rape of his own wife, except as principal in the second degree, the indictment need not negative a marriage between the defendant and the injured woman. Still, in prudence, it may be well, when fornicacation and adultery are indictable, to insert this sort of negative; then, if the proof of force should fail, there may be a conviction for one of the other offenses.” 2 Bishop on Criminal Procedure, (3d Ed.) § 956.
Under a statute which provides: “Whenever any person indicted for a felony shall, on trial, be acquitted by verdict of part of the offense charged in the indictment, and convicted of. the residue thereof-, such verdict may.be received and recorded by the court, and thereupon the person indicted shall be adjudged guilty of the offense, if any, which shall appear to the court to be substantially charged by the residue of such indictment, and shall be sentenced and punished accordingly,” the court held in Commonwealth v. Goodhue, 2 Met. (Mass.) 193, that “a defendant, indicted for rape alleged to have been committed upon his daughter may be convicted of incest, if the jury find the criminal connexion, but that it was not by force and against the will of the daughter.” It was alleged in the indictment in that case “that the defendant unlawfully had carnal knowledge of the body of his daughter.”
In Kentucky they have a statute which reads as follows: “Whoever shall carnally know a female under the age of twelve years, or an idiot, shall be confined in the penitentiary not less than ten nor more than twenty years.” In Fenston v. Commonwealth, 82 Ky. 549, it was held that a defendant charged with committing a rape upon a female under twelve years of age could be convicted of the offense described in the statute quoted. Young v. Commonwealth, 96 Ky. 573.
The carnal knowledge of a female is an essential element of rape. In this case the defendant was charged with carnal knowledge of a female under the age of sixteen years, and that was the offense defined in section 2008 before quoted, and is clearly charged in the indictment against the appellant. And, inasmuch as it was not committed forcibly and against the will of the injured female, the appellant was properly found guilty of that offense.
The majority of the judges are of the opinion that the punishment assessed against the appellant is excessive, and should be reduced to two years’ imprisonment in the penitentiary, and it is ordered that the judgment herein be modified accordingly.
McCurroch, J., dissents. | [
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Riddick, J.
(after stating the facts.) This is an appeal from a judgment acquitting the defendant of the charge of selling liquors without license. The defendant proved that he sold under a license issued by the county court, and the- State undertook to show that at the previous general election the majority of the votes cast in that county were against license, and that the county court had no authority to issue the license. Now, under the law, the returns of the elections from the different voting precincts are required to be forwarded to the election commissioners of the county, and they are required to lay such returns before the county court at the next term thereafter. - Kirby’s Dig. § 5119. From these returns the county court must, before granting a license for the sale of intoxicating liquors, determine whether a majority of the votes of the county have been cast in favor of license or not. Freeman v. Lazarus, 61 Ark. 252, 32 S. W. 680.
The license introduced in this case raises the presumption that the county judge, before issuing this license, found that the majority of the votes on the question of license were cast in favor of license, for otherwise the court had no authority to grant the license. Now, while this finding of the county court is not conclusive, still it cannot be overturned by the abstract of the vote filed by the election commissioners, to which no certificate covering the vote on the question of license is attached. The certificate offered in evidence purports to certify the votes cast for the different candidates for office, and the number of votes received by such persons, but makes no reference to the vote on the question of license. The court, therefore, in our opinion, did not err in excluding it.
The testimony of the election commissioner offered by the State was also clearly incompetent, for there was no showing that the original returns of the election from the different election, precincts of the county had been destroyed, or that they could not be procured; and, in the absence of such proof, parol evidence of their contents was not admissible.
Finding no error, the judgment is affirmed. | [
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Wood, J.,
(after stating the facts.) The ruling of tl court was correct. The conviction of Ware of the crime of pet larceny was not shown by the record itself or a certified cop thereof. The attempt to identify the record in the manner indicated was insufficient. The successor of the'justice of the peace before whom the alleged conviction was had was the custodian •of the record (Kirby’s Digest, § 4546), and the proper one to indentify same. It could not be done by secondary evidence, without laying the foundation therefor, which was not done in this case. No reason was given why the magistrate who rendered the alleged judgment, or his successor in office, was not present to identify the record. Secondary proof was not proper until this was done.
The proof offered to establish the record in this case was incompetent.
Affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment 'sustaining a demurrer to a complaint and dismissing the action for want of equity. The facts stated in the complaint are set out in the statement of facts, and show, among other things, that in the year 1855 one Jeptha Fowlkes sold certain land to the ancestor of plaintiffs. At that time the land belonged to the State, and Fowlkes had no right to it. But in 1856 he purchased it from the State, and paid for it, and received certificates of entry, which entitled him to a patent when the title of the State to the land was confirmed by the United States. By this purchase from the State Fowlkes acquired an equitable estate in the land, which inured to the benefit of his grantee, Rozell, under the statute which provides that when one conveys land by deed purporting to convey a fee simple estate, and does not own the land at the time, but afterwards acquires the title, such after-acquired title, whether legal or equitable, passes at once to his grantee. Kirby’s Digest, § 734.
Afterwards when, through mistake or fraud, the legal title was conveyed by the State to Chatfield, Rozell had a right to go into a court of equity and have this patent set aside, and the title vested in him, as against any one except a bona fide purchaser for value. Coleman v. Hill, 44 Ark. 452; Chowning v. Stanfield, 49 Ark. 87.
The complaint of the heirs 'of Rozell in our opinion makes out a clear case for relief against all except bona fide purchasers and other claimants of the land who have acquired rights through the laches of the plaintiffs. But there is nothing in the complaint to show that these defendants are bona fide purchasers for value. The complaint, it is true, does not allege that they had notice,- but this court has held that a party claiming protection as a bona fide purchaser or mortgagee from the fraudulent grantee of real- estate must deny- notice of the fraud, although notice thereof is .not charged in the plaintiffs’ bill. Miller v. Fraley, 21 Ark. 22. The failure of the complaint to allege notice in a case of this kind does not make the complaint bad, for the burden is on the defendants to show that they were b'ona fide purchasers for value.
Nor can we say from the complaint alone that the circumstances are such that the court should refuse plaintiff relief on account of their delay in bringing the action. If the land is wild and unoccupied, and the delay has not prejudiced the rights of the defendants, they have no reason to object on that ground.
We agree with the contention of the defendants that the record of the deed from Fowlkes -to Rozell was not notice to the defendants who purchased from Chatfield. And probably the same thing may be said of Chatfield’s purchase of the certificate of entry. The deed from Fowlkes to Rozell was-not in the line of defendants’ title, and they were not required to look for it. Turman v. Sanford, 69 Ark. 95. In the absence of any actual notice, or anything to put them upon inquiry, they could safely rely upon the presumption that the officers of the State did their duty and issued the patent -to the person entitled to receive it. Boynton v. Haggart, 120 Fed. 819; United States v. California & Oregon Land Co., 148 U. S. 31.
But, as before stated, we are not able to say from the complaint alone that they did not have notice of this Rozell title. If they had notice, defendants were not bona fide purchasers. If they were bona fide purchasers, they can set that up as a defense, and also any other facts that would show it to be inequitable to grant the relief prayed for. On the whole case,, we are of the opinion that the complaint states a cause of action, and that the demurrer should have been overruled. For this reason the judgment is reversed, and the cause remanded, with an order to overrule the demurrer, with leave for defendants to file an answer. | [
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PER CURIAM.
After the commencement of a suit and issue formed, a party to avail himself of accord and satisfaction occurring afterwards, must specially plead puis dar-rein continuance, and1 establish it by evidence, if disputed, and pleading puis dar-rein continuance waives all previous de-fences. 1 Salk. 108; 2 Strange, 1103; 1 Chit. PI. 697; 5 Taunt. 333.
Reversed. | [
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WAYMOND M. BROWN, Judge.
|,This case involves a 1.76-acre tract of land located in Independence County, Arkansas. Appellant Jeffery Strother appeals the trial court’s decision finding that the contested land belonged to appellee David Mitchell. Strother argues on appeal that the trial court erred in finding that he had not proven his claims of boundary by acquiescence or adverse possession. He further contends that the trial court erred in granting Mitchell damages and in granting Mitchell’s motion for Rule 11 sanctions. We find no error and affirm.
David Mitchell and his wife, Laura, received a quitclaim deed for their property on April 9, 2007. David had a survey performed on October 6, 2008, and following that survey, he began to erect a new fence along the property line. Jeffery Strother saw the new construction and tore it down. He also removed survey ribbons on two separate occasions.
12Strother filed a petition to quiet title to the disputed property on March 2, 2009. In the petition, he alleged ownership in the property under the theories of boundary by acquiescence and adverse possession. Mitchell filed a motion to dismiss on March 19, 2009, alleging that Strother failed to include indispensable parties in his complaint. Strother filed a response on March 26, 2009. On April 6, 2009, Strother filed an amended petition including the necessary parties. In the petition, Strother alleged that Mitchell was attempting to move the boundary fence “some Thirty feet from the agreed fence and established boundary.” Mitchell filed an answer on April 21, 2009. He filed an amended answer and counterclaim on September 10, 2009. In his counterclaim, Mitchell sought damages in the amount of $2,925 (the amount it cost him to build a fence on his property line, part of which was destroyed by Strother). Mitchell also sought treble damages for a total amount of $8,775 as well as other costs and relief to which he might be entitled. An answer was filed on September 18, 2009, denying Mitchell’s affirmative defense.
The hearing took place on April 1, 2010. Jerry Strother testified that he and his wife had lived on the property south of Mitchell’s property for over forty-five years. He said that the property had been in his family for a number of years before that. According to Jerry, he and his father ran cattle on their property. Jerry stated that he was familiar with the Creech ^property. He testified that Mr. Creech owned 160 acres of property that was “just all woods.” According to Jerry, Mr. Creech started clearing his land and eventually cleared most of it. Jerry stated that when he received title to his property in June 1960, there was no established fence between his property and the Creeches’ property. He said that Mr. Creech constructed the fence sometime after 1960, and the fence “ran all the way across the property from the West side to the East side.” Jerry stated that he helped to maintain the fence once it was constructed. He further testified that the Creeches had quite a few cattle and a lot of goats. Jerry said that he posted signs on the fence for over thirty years to keep others from coming onto the property to hunt. He stated that the Creeches never came onto his side of the fence except for one time when one of Mr. Creech’s bulls got loose. In regard to the maintenance of the fence, he stated
Both of us maintained the fence if something happened to it. There wasn’t a whole lot [that] happened to it. It was a good fence and you hardly ever had anything unless a tree or something would fall on it or a limb or something like that. But I worked on the fence and he did to [o]. Which ever one of us noticed it was down, why, they fixed it.
Jerry testified that he deeded the property to his children. The property was later deeded to appellant and his ex-wife.
On cross-examination, Jerry stated that the disputed property had never been cleared. He testified that he ran cattle on the disputed property; that before he was diagnosed with |4Lupus, he went to the disputed strip anytime he wanted to; that he cut wood up there; that he posted signs on the fence for over thirty years; that when purple paint came out, he painted the posts or a nearby tree; and that he helped with work on the fence as recently as ten to fifteen years ago. He also stated that he did not help pay for or build the fence and that he had never bush-hogged, fertilized, or mowed the contested strip.
Danny Robertson testified that he was a professional land-surveyor. He stated that he surveyed a piece of property for Strother. According to Robertson, the fence was extremely old, dating back at least thirty years. On cross-examination, he stated that he thought he saw some old stumps on the disputed strip, but he could not remember. However, he testified that he did not see any cow “patties” or any other signs of use on the property except for evidence that someone had been in there taking down a fence.
Elois Strother testified that she had been married to Jerry for over fifty-five years. She stated that she and her husband filed a lawsuit against the Sheldons in the '80s, but they never went to court. According to Elois, they did not get a court date or anything, they could not even talk to a lawyer. She said that the Shel-dons stopped building the road and did not “come back on the place.” She stated that the Creeches never said anything to them about the lawsuit.
Strother testified that he had been living on the property close to the disputed strip since 1997; however, he said that he had lived somewhere on the property his whole life. According to Strother, as a child, he rode his three-wheeler and motorcycles on the strip. He stated that he cut wood, fixed the fence, ran cattle, and even rented out the disputed strip of | filand. He testified that the renters also ran cattle to the fence. Strother said that he has been cutting trees from the 1.76-acre strip for over twenty years. He acknowledged that the land is rocky and is not good for a “whole lot.” Strother testified, “I [have] never had discussions with the Creech[e]s about them being on my side of the fence or me being on their side of the fence. It was understood as the boundary. We marked it as the boundary. And we treated it as the boundary.” He stated that he took a picture of the fence in January 2009, which reflected purple paint placed on the fence by Mitchell. Strother said that there are at least twenty years of purple paint on the fence. He stated that he had never seen the Creeches, the Fosters, or the Mitchells on his side of the fence until recently. According to Strother, he recently saw Mitchell on the south side of the fence. Strother said that the fence had been up so long that trees had grown into it. He stated that he had made repairs to the fence and that he would “try to go out every month or so.” Strother testified that he had not run cattle “up there in the last few years or so.” He stated that he and his sons hunt, play paint ball, and ride four-wheelers on the property, when the ticks are not so bad. He testified that he has never fertilized or bush-hogged the strip. According to him, he moved “up in the middle of the woods to be left alone.” Strother stated that he liked the area “grown up.” Strother testified that the Creeches had goats and cattle on their property and that he did not recall those goats and cattle coming across the fence. He stated that other than the Shel-dons, they never had an issue about the fence. He said that in his opinion, the fence had always been the boundary between the two properties.
IfiOn cross-examination, Strother acknowledged that he tore down Mitchell’s fence; however, he denied tearing the survey markers out. He stated that he last cut wood in the disputed area about ten to fifteen years ago. He further testified, “I can’t tell you conclusively that I have cut timber [in] that particular strip. I’ve cut timber out of the area.” Strother stated that he had treated the fence as his property by maintaining it and painting it purple. He said that he has been to the disputed strip hundreds of times and that he had never seen anyone up against the fence. Strother said that during his visits to the fence, he saw people in the pasture and that they would have been able to see him if they had looked.
Jody Loggins testified that he was a long-time friend of Strother. He stated that he had cut wood near the fence and had also helped Strother mend the fence. According to Loggins, he helped Strother cut up wood on the strip two or three years ago. Loggins testified that he thought that the south side of the fence was Strother’s property. On cross-examination, Loggins stated that he had seen cattle signs and cow patties “up there close to the fence.” He acknowledged that he did not know whose cattle was on the property. Loggins said that he helped Strother mend the fence on approximately three separate occasions. He also stated that he helped Strother cut a limb that had fallen on the fence two or three years ago.
Mitchell testified that he did not recall any purple paint on the south fence when he purchased the property. He also stated that he did not see any signs, trespassing, or stumps. According to Mitchell, he never saw anyone or anything on the other side of the fence. He said that the only time he saw someone was when he saw Strother while walking down the survey line. Mitchell stated that Strother was leaning against a tree located south of the survey |7line. Mitchell also testified that it was his understanding that the “property line was in the woods, along the south line there.” He stated that since he did not know exactly where the property line was located, he hired Kenny Fletcher to survey and mark the line. He continued:
I had the surveyor flag the line all the way down. The flags were pulled off. I have been down there and personally seen that they were gone. The flags were only taken down where the land adjoins the Strothers. It wasn’t taken anywhere else. I had the surveyor go back and re-flag it. Those flags are not still up.
Half of the fencing Johnson Fencing did was with the Strothers. I paid them for fencing it, for the barbed wire and everything. They gave me a receipt. I had to pay them $2,925.00. Right now I have to put half of the fence back up. I had to pay the surveyor to go back out and re-flag it after the flags got torn down the first time. I paid $700.00. At this point I am going to have to get the surveyor out and have him re-flag it again.
Mitchell stated that he had not seen any evidence that Strother was claiming ownership north of the actual line. He said that except the one time he saw Strother south of the line, he had never seen anyone on the other side of the fence.
On cross-examination, Mitchell stated that he had worked on the fence since he purchased the property. He said that he built a new fence along his west and south property lines. Mitchell testified that parts of his new fence are still standing and that it is only where he assumes the Strothers’ land begins that his fence has been cut and everything taken down.
On redirect, Mitchell stated that only one-fourth of his bill from Johnson Fencing would be for the part of the fence that Strother tore down.
Oleta Creech testified that she and her husband owned the land containing the disputed strip of property.. She stated that they lived close .to the south line and that her | ^husband had the land surveyed and placed the fence near the line. She said that her husband cleared what they fenced.
During voir dire, Mrs. Creech stated that the fence did not go all the way to their south property line. She said that they cleared the area they fenced because they had row crops, cows, and pastures. She stated that she had never seen cattle on the other side of the fence; that she had never seen any signs that said “posted”, “no trespassing”, or “no hunting”; and that she never saw any purple paint placed along the fence or the edge of the pasture. She further said that she and her husband took care of the fence and repaired it when it was needed. According to Mrs. Creech, she never saw the Strothers working on the fence.
On cross-examination, Mrs. Creech stated that they never allowed hunters to come onto their property and hunt; however, she said that if hunters were south of the fence, they would have left them alone. Mrs. Creech testified that she and her husband mainly stayed on the north side of the fence. She stated that if something took place on the south side of the fence, she did not expect the Strothers to do anything about it. She testified that the Strothers never did “anything up there.” Mrs. Creech stated that they would only go south of the fence to maintain it.
On redirect, Mrs. Creech stated that they owned enough land immediately south of the fence to give a road around the property so that others could access their property. According to Mrs. Creech, that was the reason the fence was dropped back.
Jimmy Creech, Mrs. Creech’s son, testified that he did not remember seeing any cattle just across the fence; that he did not remember seeing any no trespassing or no-hunting signs; |9that he did not remember seeing any purple paint along the fence; that he did not remember seeing any of the Strothers along the edge of the fence; and that he did not see any kind of activity that would indicate that the Strothers were doing something on the land south of the fence. He stated that he left home in 1966, and even though he never moved back home, he would come back and visit at least once a year.
Mike Foster testified that he purchased the property from Mrs. Creech in 1992. He owned the property until he sold it to the Mitchells in 2007. He stated that it was his understanding that the “fence running along the south pasture was not the line of [his] property. [His] understanding was that the actual boundary line was south of that a little ways or a ways.” He said that he was not sure how far the line was located from the fence but that he knew that the fence was not the true boundary. Foster stated that he raised cattle on the property and that he did not remember seeing any cattle on the other side of the fence. He also denied seeing any signs, any purple paint, or the Stroth-ers at or near the fence.
On cross-examination, Foster stated that he never knew where the south property line was, and he never tried to determine its location. He testified that he maintained the fence and used it to keep his cattle in. He said that he only used the property up to the fence.
On redirect, Foster stated that he never saw the Strothers working on the fence. On re-cross, he acknowledged that it was possible that the Strothers performed work on the fence without him knowing.
Floyd Mitchell testified that he placed the purple paint on the fence because he did not know where the line was and the fence was the easiest place to paint. He said that he did not |insee any old paint on the posts when he painted the fence. On cross-examination, he stated that the paint was to keep others from coming over to the other side of the fence. Floyd said that at the time the fence was painted, his son had not had his property surveyed.
After being recalled, Strother testified that he had not seen any sign that Mitchell had come over to his side of the disputed strip to clean up. On cross-examination, he stated that he took Mitchell’s fence down. He also said that he had cleared “stuff off the fence since the ice storm.” According to Strother, he planned to clear a considerable amount out of the woods once this case was resolved.
The court issued an opinion on June 16, 2010, dismissing Strother’s motion to quiet title with prejudice. The court entered a judgment in the amount of $1,535.71 against Strother to cover Mitchell’s cost to re-flag the line and to have the torn-down fence replaced. Strother filed a notice of appeal on June 23, 2010. He also filed a motion for relief from judgment and/or decree the same day. In the motion Strother alleged that Judge Weaver had dated his ex-wife for a substantial time, which constituted a conflict in “the determination of the credibility of the witnesses and therefore resulted in a miscarriage of justice.” Strother also alleged that his ex-wife told the Mitchells that they “were in ‘good shape’ or something to that effect.” It was argued that at the time the statement was made, his ex-wife worked at Blair Arnold’s law firm. Strother prayed that the judgment be vacated and the case transferred to another court.
lnMitchell filed a response on June 30, 2010, stating that Strother and his attorney knew that Strother’s ex-wife and Judge Weaver had dated prior to the hearing. Mitchell also stated that Judge Weaver and Strother’s ex-wife’s relationship predated her employment with Arnold’s firm by a number of years. Mitchell also sought reimbursement of attorney’s fees incurred for responding to Strother’s motion under Rule 11. Included in Mitchell’s answer were affidavits from Strother’s ex-wife and Mitchell and his wife. Mitchell also filed a motion for sanctions on June 30, 2010.
A hearing was held on July 16, 2010. Strother’s son testified that he was between eight and ten when his parents divorced. He said that he was aware that his mother dated Judge Weaver following the divorce, but he never discussed it with his father until “the day after they got back from court.” On cross-examination, he stated that he believed that his mom dated Judge Weaver about seven years ago. He said that he did not know who his mom was working for at the time she and Judge Weaver dated. He also testified that his mom began working for a law firm in Jonesboro around August 2009.
Strother testified that he did not recall ever meeting Judge Weaver. Strother stated that he felt that it was human nature not to like your girlfriend’s or boyfriend’s former spouse. He reasoned that since Judge Weaver dated his ex-wife, it would be the judge’s “natural response” not to like him. The court asked Strother to explain the facts that supported his | ^motion for relief. Strother testified that his son had recently applied for a job and that his ex-wife listed Judge Weaver as a possible job reference. Strother stated that he and his ex-wife did not get along well after the divorce and that he heard that she had told the Mitchells that they were in good shape. Strother said that he believed that his ex-wife was working for Arnold’s firm when she and Judge Weaver dated. He testified that he felt that “the judge’s relationship with [his] ex-wife could have had an effect on [the judge’s] decision.”
On cross-examination, Strother stated that he did not know where his ex-wife was working when she dated Judge Weaver; however, he stated that he thought she was working for Arnold’s law firm. He acknowledged that he did not ask anyone where his ex-wife was working when she dated Judge Weaver. Strother stated that he did not realize that his ex-wife left Arnold’s law firm eight months before the case came to trial. He testified that he alleged that his ex-wife was working for Arnold’s law firm because that was where his son stated he thought she was working. Strother stated that he believed that Judge Weaver had thrown his case because he once dated Strother’s ex-wife. He continued:
I don’t have absolute facts. What I have is the way that I feel and I can’t know the inside of someone’s mind. The facts that I had were that they had, in fact, dated. And I know what a huge fan she is of mine. So, I would expect that he would be aware of that as well. I would expect that she would have gone and talked to Judge Weaver because they had once dated and therefore he would throw the case.
On redirect, Strother stated that his ex-wife was working for Arnold’s law firm when his action was filed. He testified that he would have asked to have his case transferred if he had known that his ex-wife and Judge Weaver had once dated. Strother also stated that over the years, people had told him that he was the subject of conversation over at Arnold’s law firm. | i.oHe said that this gave him the impression that “her and anybody that she’s a[n] acquaintance with has a pretty low opinion of [him].” Strother testified that his ex-wife’s name was brought up at the beginning of his case and that everyone who knew her, knew who he was.
On re-cross, Strother testified that he and his ex-wife once shared ownership interest in the land south of the Mitchells. He stated that as part of their divorce settlement, she gave him a deed for her interest. He said that her name was brought up in court when Mitchell sought to have the case dismissed because she was not present.
Upon examination by the court, Strother stated that Mitchell told him after the lawsuit was filed that Strother’s ex-wife had told him that they were in good shape. Strother said that he did not subpoena Mitchell because he assumed Mitchell would be there. Strother testified that when he learned that his ex-wife had dated Judge Weaver, the statement to Mitchell made sense to him. Strother also stated that he based his motion on information he gathered from his seventeen-year-old son concerning events that took place when he was about twelve.
Judge Weaver stated on the record that he did not know who Strother was. He acknowledged that he dated Strother’s ex-wife for a little over a month in 2005. He stated that he had not had a relationship with her since that time. He said that he thought Strother’s ex-wife was a fine person and that he did a letter of recommendation for her in the past because he knew that she was a good paralegal. Judge Weaver stated that he believed Strother’s son was a fine young man and that he would give him a reference just as he has 114done for others. He further stated that he never had a conversation about Strother and that he did not even know Strother’s name.
The court gave Strother an hour to present evidence that his ex-wife was working for Mr. Arnold’s law firm at the time she and Judge Weaver dated. The court also told Strother to call and get Mitchell to the hearing.
When the hearing resumed, Strother introduced two check stubs for his ex-wife. The first check stub was issued April 28, 2006, nearly a year after the time Judge Weaver acknowledged he had dated her. The court asked Strother’s attorney if he had any proof that Judge Weaver threw the case because he knew Strother’s ex-wife over five years ago. The attorney replied no.
Mitchell denied telling Strother anything concerning a statement made by his ex-wife. Mitchell said that he had never met Strother’s ex-wife, nor had he ever talked to her. On cross-examination, he stated that he and Strother really did not have a conversation about the lawsuit when he saw Strother leaning against a tree south of Mitchell’s property line. Mitchell told the court that it was not possible that he said anything to lead Strother to believe that the case was fixed.
Strother’s son was recalled, and he stated that he once went to Judge Weaver’s house with his mother. Upon examination by the court, he said that he told his father that his mother dated Judge Weaver for a while, but not for a substantial time. He acknowledged that |15five years ago, he would have been twelve. He said that he did not remember if his mother was working for Arnold’s law firm five years ago. He also stated that his mother wrote Judge Weaver’s information down as a possible job reference but that he never used it.
Mark Derrick, Strother’s attorney, testified that he filed the motion for relief of judgment based on the information he received from Strother. He said that he believed Strother because he had never known Strother to lie to him. Derrick stated that he did not verify whether the statement that Strother’s ex-wife worked for Arnold’s law firm during the time she dated Judge Weaver was factually correct because he “really did not feel like it was all that relevant to the issue.” Derrick acknowledged that someone had told him that Judge Weaver and Strother’s ex-wife had dated sometime before April 1, 2010. He stated that at the time he drafted the motion, he did not remember that he was aware of that fact. According to Derrick, he did not remember the information until after the response came out. He testified that Strother was his sole source of information. He stated that the pleading was poorly drafted. Derrick also stated that Strother did not ask him to file the motion but he decided to do so after speaking to other attorneys. He said that the idea to file the motion came up because of the finding on the credibility of the witnesses. He confessed that he was thinking on a subconscious level. He stated that he did not believe that Strother’s ex-wife would have anything good to say about Strother. He further testified:
I was not intending to say you are a crooked judge. I guess it was a poor pleading. It was the fact that you dated her. I did not feel like you would have gotten any good information and you would have gotten nothing but bad information on Mr. Strother. When it came down to the credibility of the witnesses, I felt like anything that she said could still be in your mind. I was at a CLE on appellate] work and after the class and | irjust in generic terms I explained to him what had happened. And he said — I said I don’t like filing it because I don’t think it’s going to come out good. And he said, you’ve go[t] to, to save it for appeal. You’ve got to do it to represent your client.
The court denied Strother’s motion for relief from judgment. It granted Mitchell’s motion for sanctions because “the motion is not based on a reasonable inquiry and is not well grounded in fact.” Arnold was asked to submit an affidavit of time spent working on the motion. The court postponed making a ruling until the affidavit was submitted. The court said that it would be reporting Derrick to the Lawyer’s Ethics Committee. Judge Weaver also stated that he would be making a report to the Judicial Discipline and Disability Committee.
Arnold submitted his affidavit on July 20, 2010. In the affidavit, he stated that he charged $200/hour and that he had spent a total of 7.50 hours dealing with the motion for relief from judgment and/or decree and with his motion for Rule 11 sanctions.
The court filed an order on August 2, 2010, awarding Arnold attorney’s fees in the amount of $1,125. Strother was ordered to pay Arnold within ten days in order to avoid a finding of contempt or other sanctions by the court. The court also filed an order denying Strother’s motion for relief from judgment and/or decree on August 2, 2010. Strother filed an amended notice of appeal on August 6, 2010. This appeal followed.
We traditionally review quiet title and boundary line actions de novo. We will not, however, reverse findings of fact unless they are clearly erroneous. Further, whether 117possession is adverse to the true owner is a question of fact. We will not reverse a trial court’s finding regarding adverse possession unless it is clearly erroneous. In reviewing a trial court’s findings of fact, we give due deference to the trial court’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony.
For his first point, Strother argues that the trial court erred by not finding that he had proven ownership to the strip of land under the theory of boundary by acquiescence. A fence, by acquiescence, may become the accepted boundary even though it is contrary to the survey line. When adjoining landowners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. A boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. It is the agreement and acquiescence, not the fence itself, [isthat controls. The intention of the parties and the significance they attach to the fence, rather than its location or condition, is what is to be considered. Neither a prior dispute about the boundary line nor adverse usage up to a fence is required to establish a boundary by acquiescence.
We have noted that the mere existence of a fence, without evidence of mutual recognition, cannot sustain a finding of such a boundary. Also, the fact that a landowner puts a fence inside his boundary line does not mean that he is acquiescing in the fence as the boundary, thereby losing title to the strip on the other side. That occurs only if the neighbor takes possession and holds it for the requisite number of years.
Because the location of a boundary is a disputed question of fact, we will affirm unless the trial court’s finding is clearly against the preponderance of the evidence. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the 119entire evidence is left with a definite conviction that a mistake was committed. Whether a boundary line by acquiescence exists is to be determined from the evidence in each individual case.
Here, the court found Mitchell’s and his predecessors’ testimony that they were aware that the fence was not placed on the south property line credible. Strother and his family testified that they considered the fence to be the boundary between the properties; however, for there to be a boundary by acquiescence, there has to be mutual recognition. In the case at bar, there was no evidence of mutual recognition of the fence as the boundary. The trial court’s finding on this point is not clearly erroneous. Additionally, since the Creeches placed a fence inside their own property line, the Strothers had to prove that they took possession of the strip and held it for the requisite period of time. They also failed to do this.
As his second point, Strother argues that the trial court erred by not finding that he had proven ownership to the disputed strip of property under the theory of adverse possession. Adverse possession is a question of fact that will not be disturbed unless clearly erroneous. To prove the common-law elements of adverse possession, the. claimant must show that he has been in possession of the property continuously for more than seven years and that hisj^possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner.
Here, the court was not clearly erroneous in its finding that Strother failed to prove ownership of the disputed property under the theory of adverse possession. Strother contended that his family hunted the property; posted, painted, and maintained the fence; cut timber on the property; and visibly ran cattle on the property for over thirty years. However, Mitchell and his predecessors all denied ever seeing any evidence of this. It was the duty of the trial court to determine the credibility of the witnesses. The evidence, in light of our standard of review, supports the trial court’s finding that Strother was not entitled to the disputed property.
As his third point, Strother argues that the trial court erred by ordering him to pay damages to Mitchell. According to Strother, he is the rightful owner of the disputed strip of property, and as such, he could remove the fence and markings placed on his property by Mitchell. Because we have already determined that the court did not err by finding that Mitchell owned the disputed property, this argument is without merit. Accordingly, the damage award is affirmed.
Finally, Strother argues that the trial court erred in granting Mitchell’s motion for sanctions under Rule 11. That rule states in pertinent part:
121 Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification, or reversal of existing law, that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, and that it complies with the requirements of Rule of Civil Procedure 5(c)(2) regarding redaction of confidential information from case records submitted to the court. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
Strother contends that even if sanctions were warranted they should have been imposed against his attorney since he was the one who signed the motion for relief from judgment and/or decree. By the terms employed in Rule 11, an attorney or party signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that (1) the attorney or party made a reasonable inquiry into the facts supporting the document or pleading; (2) he or she made a reasonable inquiry into the law supporting that document to ensure that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (3) he or she did not interpose the document for any improper purpose, such as to harass or to cause unnecessary delay or needless increase inj^the cost of litigation. When a violation of Rule 11 occurs, the rule makes sanctions mandatory. Whether a violation occurred is a matter for the trial court to determine, and this determination involves matters of judgment and degree. In reviewing a trial court’s Rule 11 determination, we do so under an abuse-of-discretion standard. In deciding the appropriate sanction, trial courts have broad discretion not only in determining whether sanctionable conduct occurred but also what an appropriate sanction should be. The imposition of sanctions pursuant to Rule 11 is a serious matter to be handled with circumspection, and the trial court’s decision is due substantial deference.
Here, Derrick filed a motion alleging that Judge Weaver threw Strother’s case against Mitchell because Judge Weaver once dated Strother’s ex-wife. The motion was not based on belief formed after reasonable inquiry that was well grounded in fact, as required by the statute. Instead, it was based on Strother’s subconscious belief that Judge Weaver did not like him because he once dated Strother’s ex-wife. When asked for proof of any of the allegations other than the fact that Judge Weaver did date Srother’s ex-wife, Strother was unable to present any. Once it found a violation of the rule, the court was required to impose sanctions. 12sThe rule gives the court the discretion to sanction the attorney, the represented party, or both. Here, the court sanctioned Strother by ordering him to pay the attorney’s fees incurred as a result of Strother’s filing the motion. The court also noted that it was turning in Strother’s attorney to the ethics committee. Giving the court due deference, we affirm its finding of a Rule 11 violation and the $1,125 attorney’s fee assessed against Strother as an appropriate sanction.
We affirm the trial court. However, we remand with instructions for the court to amend its order dismissing Strother’s quiet-title claim to include a specific legal description of the boundary at issue. Even though the court’s June 16, 2010 order mentions the Fletcher survey, the order must describe the boundary with sufficient specificity that it can be identified solely by reference to the decree.
Affirmed and remanded with instructions.
VAUGHT, C.J., and GRUBER, J., agree.
. His mother and father.
. In his answer, Mitchell argued that the Strothers should be collaterally estopped from alleging ownership to the disputed property a second time. Elois and Jerry Strother non-suited a case against Grace and Leland Sheldon involving the same “line” on February 28, 1983. The non-suit was filed of record on March 9, 1983.
.The Creedles were the original owners of Mitchell's property. They sold the property to Foster, who sold it to Mitchell.
. Appellant’s ex-wife assigned him her interest in the property via a quitclaim deed dated January 9, 2002.
. Mr. Arnold was Mitchell’s attorney.
. Strother's attorney called J.T. Skinner over a year before the case was heard and mentioned that Strother's ex-wife and the judge had dated. Additionally, it was alleged that Strother had met the judge while he was dating Strother’s ex-wife.
. Judge Weaver also denied seeing Strother before the land dispute.
. Strother's attorney informed the court that he did not remember a verbal motion at the trial and that the motion to dismiss was filed by Mitchell on March 19, 2009.
. Judge Weaver stated that he did not remember him coming to his house.
. Price v. Rylwell, LLC, 95 Ark.App. 228, 235 S.W.3d 908 (2006).
. Id.
. White River Levee Dist. v. Reidhar, 76 Ark.App. 225, 61 S.W.3d 235 (2001).
. Id.
. Robertson v. Lees, 87 Ark.App. 172, 189 S.W.3d 463 (2004).
. Summers v. Dietsch, 41 Ark.App. 52, 849 S.W.2d3 (1993).
. Clark v. Casebier, 92 Ark.App. 472, 215 S.W.3d 684 (2005).
. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000).
. Camp v. Liberatore, 1 Ark.App. 300, 615 S.W.2d 401 (1981).
. Id.
. Myers v. Yingling, 372 Ark. 523, 279 S.W.3d 83 (2008).
. Robertson v. Lees, supra. See also Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972); Carney v. Barnes, 235 Ark. 887, 363 S.W.2d 417 (1962).
. Robertson, supra.
. Avington v. Newborn, 271 Ark. 648, 609 S.W.2d 678 (Ark.App.1981); Carney, supra.
. Myers, supra.
. Hedger Bros. Cement & Materials, supra.
. Boyette v. Vogelpohl, 92 Ark.App. 436, 214 S.W.3d 874 (2005).
. See White River Levee Dist., supra.
. White River Levee Dist., supra.
. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992).
. Id.
. Id.
. Id.
. Williams v. Martin, 335 Ark. 163, 980 S.W.2d 248 (1998).
. Id.
. See Chiodini v. Lock, 2010 Ark. App. 340, 374 S.W.3d 835.
. Id. | [
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DONALD L. CORBIN, Justice.
| iSeparate Appellants, Audrey Hunter, William Shepherd, and Daniel Crager, appeal the orders of the Pulaski County Circuit Court denying their separate motions to intervene and approving a class-action settlement between the Appellees who were plaintiffs below, Edison Runyan; Dwight Pipes; Earl L. Purifoy; John Ross, as the legal representative of Elizabeth Ross; Mary Weidman; Durain Weid-man; Marion Harris; and Van R. Nolan, each individually and on behalf of all others similarly situated (“the Settling Plaintiffs”), and the Appellees who were defendants below, Transameriea Life Insurance Company; Life Investors | insurance Company of America; Monumental Life Insurance Company; and Aegon USA, Inc. (all of which are affiliated companies and hereinafter referred to as “the Company”). The separate Appellants each raise individual arguments for reversal. In addition, both groups of Appellees have filed motions to dismiss Crager’s appeal for lack of standing. This appeal is of substantial public interest in that it involves a nationwide class of approximately 250,000 persons who held supplemental cancer insurance policies and presents an issue of first impression in this state regarding subject-matter jurisdiction in class-action settlements. Jurisdiction is thus properly in this court pursuant to Arkansas Supreme Court Rule l-2(b)(l) & (b)(4) (2010). We dismiss Crager’s appeal for lack of standing. We find no error in the circuit court’s orders and affirm.
I. Facts and Procedural History
The Settling Plaintiffs initiated this case in Pulaski County Circuit Court on March 13, 2009, when they filed a class-action complaint asserting numerous causes of action sounding in contract and tort, both individually and on behalf of a class of current and former policyholders or their legal representatives who held certain supplemental cancer insurance policies and specified disease policies issued by the Company or its predecessor companies. The policies at issue are guaranteed renewable and provide for payment of cash benefits directly to the policyholder based upon the “actual charges” for certain services such as chemotherapy, radiation therapy, blood-related expenses, and other services. It is the Company’s change in its determination and payment of “actual charges” that is at the center |sof this case. In addition to claiming that the Company has underpaid benefits based on “actual charges,” the complaint also challenged the Company’s premium rate increases.
Among other forms of monetary and nonmonetary relief, the complaint sought a declaration that the undefined term “actual charges” in the policies means the amount paid according to the Company’s practice prior to 2006, which was to pay the amount billed on the health-care provider’s statement before allowing for any discount, reduction, write-off, or third-party payments. According to the complaint, the Company changed this practice some time in 2006 when it began underpaying benefits according to the amount actually accepted by the health-care provider as payment in full for services rendered.
The Company answered the complaint on April 3, 2009, denying all claims alleged therein and denying that the case was appropriate for class certification. The Company asserted that its correction in claims practices regarding actual charges was motivated by the need to pay benefits in accordance with the terms of the policies, as well as a good-faith attempt to benefit policyholders as a whole by reducing the frequency or amount of future premium rate increases. The Company later explained that health-care billing practices had changed since the mid-1970s when it first developed the “actual charges” policies at issue.
On or about April 17, 2009, the Settling Plaintiffs and the Company executed a class-action-settlement agreement, which defined a conditional settlement class, established a comprehensive notice plan, provided for both monetary and nonmonetary relief to the class, set a limit on attorney’s fees for class counsel, and provided for a dismissal and release of all I .claims. The agreement stated that the terms of the settlement would apply not only in the present case, but also in six other class actions that each of the plaintiffs had pending in various federal district courts:
Pipes v. Life Investors Insurance Company of America, Case No. l:07-cv-00035, in the United States District Court for the Eastern District of Arkansas;
Runyan v. Transamerica Life Insurance Company, Case No. 6:08-cv-6034, in the United States District Court for the Western District of Arkansas;
Ross v. Life Investors Insurance Company of America, Case No. 4:08-cv-00064, in the United States District Court for the Southern District of Mississippi;
Weidman v. Life Investors Insurance Company of America, Case No. 2:08-cv-12870, in the United States District Court for the Eastern District of Michigan;
Harris v. Transamerica Life Insurance Company, Case No. 572027, in the Nineteenth District Court of the State of Louisiana, East Baton Rouge Parish, removed as Case No. 09-13-JVP-SCR, in the United States District Court for the Middle District of Louisiana; and
Nolan v. Life Investors Insurance Company of America, Case No. 3:08-cv-00839, in the United States District Court for the Middle District of Louisiana.
On April 20, 2009, the Settling Plaintiffs and the Company filed with the circuit court a joint motion for preliminary approval of the proposed class-aetion-settlement agreement. Each side filed briefs and the circuit court held a hearing on the joint motion. On April 23, 2009, at the conclusion of the hearing, the circuit court entered an order finding that the proposed settlement agreement was sufficiently fair, reasonable, adequate, and in the best interest of the class members to warrant preliminary approval and the sending of notice to the settlement class. The preliminary approval order established a comprehensive notice plan that | ^included personal notice mailed to over 250,000 settlement-class members, publication notice in USA Today, a settlement website with access to claims forms and other documents, and a toll-free call center. The preliminary approval order initially set the final fairness hearing for July 27, 2009, and noted that class members who did not opt out could object to the proposed settlement in writing and at the fairness hearing upon compliance with certain parameters. The preliminary approval order noted further that any failure to comply with the objection parameters would operate as a waiver of any objections. Proceedings in the six federal courts were, upon joint motion, stayed pending final approval of the settlement.
Pursuant to the preliminary approval order, notice was mailed to over 250,000 members of the settlement class on May 14, 2009, advising them of the nature of the litigation, the terms of the settlement agreement, their right to object, and their right to exclude themselves or “opt out” of the settlement, along with the deadlines and procedures for doing so. After notice was mailed and published, approximately twenty members filed objections. Some of the objections were withdrawn, and by the time of the fairness hearing only nine objectors remained. Separate Appellants Crager and Hunter were among the nine remaining objectors.
The circuit court postponed the fairness hearing, due in part because counsel for other plaintiffs in competing class actions pending in other jurisdictions had filed requests to enjoin or otherwise delay the settlement or the final fairness hearing in this case. See, e.g., Gooch v. Life Investors Ins. Co., 589 F.3d 319 (6th Cir.2009) (denying mandamus relief, and reversing |fiand vacating an injunction precluding the Company from pursuing this settlement in Pulaski County Circuit Court). The circuit court observed that the plaintiffs in those competing class actions had timely excluded themselves from the present settlement class, but that their attorneys also represented other members of the present settlement class who chose to remain members of the class rather than to exclude themselves. Appellants Crager, Hunter, and Shepherd are among this latter group — those persons who are represented by plaintiffs’ counsel in competing class actions, but chose to remain members of the present settlement class and either file an objection to the settlement or a motion to intervene, or both.
Appellants Crager, Hunter, and Shepherd all filed separate motions to intervene, as well as various other preliminary motions for discovery and to stay the circuit court’s proceedings. There was another motion to intervene filed by a group of objectors known as the Goad objectors, who later withdrew their motion and objections. The circuit court held three separate hearings in September and October on each of the motions to intervene, and entered an order on December 8, 2009, denying all requests for intervention. In this order, which totaled thirty-one pages, the circuit court discussed the history of the litigation between the parties in the consolidated federal cases, as well as the objections raised by class members and their counsel.
The circuit court held the fairness hearing for final approval of the settlement on November 9, 2009; then on December 21, 2009, entered a twelve-page final order and judgment with an additional sixty- three pages of findings of fact and conclusions of law. In |7this final order and judgment, the circuit court gave final approval to the settlement agreement and dismissed with prejudice all class-members’ claims.
Separate Appellants Shepherd, Crager, and Hunter each appeal the order denying their motions to intervene. Appellants Shepherd and Crager also appeal the final order and judgment approving the settlement.
II. Subject-Matter Jurisdiction
Prior to considering any of the Appellants’ arguments raised on appeal, we must first consider the threshold issue of subject-matter jurisdiction raised by Appellant Shepherd. For if the circuit court lacked subject-matter jurisdiction, this court also lacks subject-matter jurisdiction. Barrows v. City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117.
Shepherd contends that the circuit court never acquired subject-matter jurisdiction of this case under amendment 80 to the Arkansas Constitution because the Settling Plaintiffs and the Company had reached agreement as to the material terms of the settlement before suit was ever filed, thereby eliminating the existence of a controversy between the parties. Shepherd argues that the circuit court lacked subject-matter jurisdiction because the interests of the parties were already aligned and no longer adverse when suit was filed. We reject Shepherd’s argument because it is not supported by Arkansas law or by the facts in the record of this case.
We first reject Shepherd’s argument because it is not supported by Arkansas law. Shepherd’s argument, which erroneously equates a lack of adversity between parties with a lack of subject-matter jurisdiction in an Arkansas court, is not supported by Arkansas [¿jurisprudence on subject-matter jurisdiction, and is additionally contrary to Rule 23(e) of the Arkansas Rules of Civil Procedure. Shepherd’s argument is based on the false premise that Arkansas jurisprudence is similar to federal jurisprudence in this area. It is not. Despite Shepherd’s assertions to the contrary, Arkansas jurisprudence and federal jurisprudence on subject-matter jurisdiction are more unalike than alike. See, e.g., Chubb Lloyds Ins. Co. v. Miller County Circuit Court, 2010 Ark. 119, 361 S.W.3d 809 (observing that standing is one of several doctrines, along with mootness, ripeness, and whether the case involves a political question, which has developed into the definition of the case or controversy requirement under federal law, and that Arkansas has not followed the federal analysis and definition of justiciability as a jurisdictional issue).
“Federal courts are courts of limited jurisdiction and can only hear actual ‘cases or controversies’ as defined under Article III of the [United States] Constitution.” Id. at 10, 361 S.W.3d at 815 (quoting Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1172 (8th Cir.1994)). In Arkansas, however, “[c]ircuit courts are established as the trial courts ofjgoriginal jurisdiction of all justiciable matters not otherwise assigned pursuant to this Constitution.” Ark. Const, amend. 80, § 6(A). We note that amendment 80 of the Arkansas Constitution uses the term “justiciable matters,” as compared to the term “[c]on-troversies” used in Article III, § 2 of the United States Constitution.
In support of his argument that Arkansas law is similar to federal law on the question of whether a controversy between adverse parties is a jurisdictional requirement, Shepherd cites MacSteel Division of Quanex v. Arkansas Oklahoma Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005), wherein this court stated that among other factors that must exist in order to maintain a declaratory-judgment action, there must be a justiciable controversy between persons whose interests are adverse. Granted, as Shepherd points out, declaratory relief is one of several forms of relief the Settling Plaintiffs sought in their complaint. However, there is simply nothing in the MacSteel case to equate “[t]he requisite precedent facts or conditions, which ... must exist in order that declaratory relief may be obtained” with the subject-matter jurisdiction of the circuit court. Id. at 35, 210 S.W.3d at 886. Therefore, Shepherd’s citation to MacSteel does not support his argument that an Arkansas circuit court has no subject-matter jurisdiction of a case unless the parties are adverse. Any “adverse parties” requirement that Arkansas law may impose by way of MacSteel is strictly in the context of a circuit court’s propriety of exercising its jurisdiction to enter a particular declaratory judgment.
Shepherd also cites UHS of Arkansas, Inc. v. Charter Hospital of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988), and City of Fort Smith v. Didicom Towers, Inc., 362 Ark. 469, 209 S.W.3d 344 (2005), and argues that when there is preexisting litigation between the same parties, a circuit court is precluded from issuing a declaratory judgment. These two cases do stand for the general proposition that a circuit court should not issue a declaratory judgment when there is preexisting litigation between the same parties. But this is true because the question of whether relief should be granted under our Declaratory Judgment Act is a matter resting in the sound discretion of the circuit court, Didicom Towers, 362 Ark. 469, 209 S.W.3d 344, and not because of any limitations upon the court’s subject-matter jurisdiction. In other words, UHS of Arkansas and Didicom Towers discuss the issue of preexisting litigation between parties as a matter of a circuit court’s propriety of exercising jurisdiction to issue a declaratory judgment, rather than as a limitation upon the circuit court’s subject-matter jurisdiction. This court clearly stated in UHS of Arkansas that
[o]ur declaratory judgment statute does not confer subject-matter jurisdiction. There must be an independent basis for equitable jurisdiction before a chancery court can render a declaratory judgment. Here, the independent basis for equitable jurisdiction lay in the challenge to the constitutionality of Act 593, as amended. Thus, the “jurisdictional” issue involved in the instant case concerns matters of propriety rather than subject-matter jurisdiction.
UHS of Arkansas, 297 Ark. at 12, 759 S.W.2d at 206 (citations omitted). Shepherd’s reliance upon UHS of Arkansas and Didicom Towers is misplaced, as those two cases do not impose any subject-matter-jurisdiction limitations upon the present case.
It is well settled that, in Arkansas, subject-matter jurisdiction is considered to be a court’s authority to hear and decide a particular type of case. Edwards v. Edwards, 2009 Ark. 580, 357 S.W.3d 445 (citing David Newbern & John Watkins, Civil Practice and Procedure |1T§ 2:1, at 19-20 (4th ed.2006)). An Arkansas court lacks subject-matter jurisdiction if it cannot hear a matter “under any circumstances” and is “wholly incompetent to grant the relief sought.” Id. at 4, 357 S.W.3d at 448 (quoting J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352-53, 836 S.W.2d 853, 858 (1992)). An Arkansas circuit court obtains subject-matter jurisdiction when it is conferred under the Arkansas Constitution or by means of constitutionally authorized statutes or court rules. Id. The subject matter of the instant case, the approval of a class-settlement agreement in a dispute over an insurance policy, is governed by court rule in this state; specifically, Rule 23(e). We must therefore look to Rule 23(e) to determine if the circuit court had subject-matter jurisdiction of this case.
Rule 23(e)(1) requires that “[t]he court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.” Ark. R. Civ. P. 23(e)(1) (2010). Rule 23(e)(2) further requires that “[t]he parties seeking approval of a settlement, voluntary dismissal, or compromise must file a statement identifying any agreement made in connection with the proposed settlement, voluntary dismissal, or compromise.” Ark. R. Civ. P. 23(e)(2) (2010). The language of Rule 23(e) is mandatory; it specifically requires court review and approval of a settlement agreement reached in a class-action case. Therefore, according to Rule 23(e), there can be no question that the circuit court certainly had subject-matter jurisdiction to review and approve or not approve the settlement reached in this case. Shepherd’s argument regarding subject-matter jurisdiction is therefore not supported by Arkansas law.
|12We next reject Shepherd’s argument regarding subject-matter jurisdiction because there is no support for it in the record of this case. Shepherd asserts that the parties in this case are not adverse because they had reached agreement on the material terms of the settlement prior to the complaint being filed. The complaint was filed on March 13, 2009. The joint motion for preliminary approval of the settlement agreement was filed on April 20, 2009. Although the parties reached an understanding of the parameters of a settlement on March 3, 2009, it was not until April 17, 2009, over a month after the complaint was filed, that the parties actually executed the complete and comprehensive written settlement agreement that was attached as an exhibit to the joint motion and submitted to the court for approval on April 20, 2009. Thus, the record does not demonstrate that the settlement agreement was reached prior to this suit being filed.
Shepherd’s jurisdictional argument disregards the significant fact that the settlement agreement, according to its express terms, also applies to the six pending cases in the federal courts. At the hearing on the joint motion for preliminary approval of the settlement agreement, counsel for the Settling Plaintiffs and counsel for the Company explained to the circuit court the history of the contested litigation in the several cases being consolidated and settled in this case. It was not disputed that although this case had recently been filed, they had been litigating against each other since June 2007 when the first of those six cases was filed. Similarly, it was not disputed that settlement negotiations began in October 2008, and were followed by an unsuccessful two-day mediation before a former federal district judge in | l3November 2008, and a denial of class certification in Pipes v. Life Investors Insurance Company of America, 254 F.R.D. 544 (E.D.Ark.2008).
That settlement negotiations were underway at the time the complaint was filed in this case does not demonstrate that the settlement agreement had been finalized, signed, and executed. Moreover, it does not demonstrate that the parties were not adverse. The circuit court found that there was indeed a history of contentious litigation between these parties. Thus, even if the general parameters of a settlement had been reached, the fact remains that the parties were adverse and negotiations could have broken down at any time before the written agreement was executed on April 17, 2009, and filed with the circuit court on April 20, 2009. Indeed, the settlement agreement totals thirty-six pages, with additional exhibits of over fifty pages. The circuit court properly focused on the nature of the adverseness of the contested litigation and the tentative nature of the settlement rather than on the timing of the negotiations. Accordingly, we conclude that Shepherd’s contention that the interests of the Company and the Settling Plaintiffs were no longer adverse because the parties had already reached a settlement when the complaint was filed is simply not supported by the record.
Finally, with respect to Shepherd’s subject-matter-jurisdiction argument, we note his claim that the lack of a truly adversary proceeding prevented the circuit court from effectively reviewing the .fairness of the settlement. Such an argument is an attempt to circumvent his lack of standing to appeal the approval of the settlement agreement. For the same reasons | ^expressed later in our discussion of the motions to dismiss Crager’s appeal, Shepherd does not have standing to advance this argument.
In summary, we conclude that Arkansas law does not consider a lack of adverseness between parties to be a requirement of subject-matter jurisdiction. Regardless, the record in this case demonstrates that the parties were adverse. Moreover, Rule 28(e) requires court approval of a class-action settlement. Therefore, pursuant to amendment 80 and Rule 23(e), the circuit court had jurisdiction of the subject matter in this case.
III. Motions to Dismiss Crager’s Appeal
We next consider the motions of both the Settling Plaintiffs and the Company to dismiss Separate Appellant Crager’s appeal due to his lack of standing. They argue that Crager has waived appellate review of the denial of his motion to intervene by not pursuing it in his brief. They argue further that because he did not exclude himself from the settlement class, he lacks standing to challenge on appeal the final approval of the settlement agreement as unfair, unreasonable, and inadequate. For the reasons expressed below, we agree and dismiss Crager’s appeal.
This court has held that an unnamed class member whose request to intervene is not granted has no standing to appeal the final approval of a class settlement. Ballard v. Advance Am., 349 Ark. 545, 79 S.W.3d 835 (2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003). Likewise, unnamed class members who are not granted intervention do not have standing to appeal other related orders such as the requirement to post bond, or the approval of attorney’s fees. Luebbers v. Advance Am., 348 Ark. 567, 74 S.W.3d 608 (2002); Haberman v. Lisle, 317 Ark. 600, 884 S.W.2d 262 (1994). This court has recently revisited these holdings and affirmed them in DeJulius v. Sumner, 373 Ark. 156, 282 S.W.3d 753 (2008).
In Ballard, 349 Ark. 545, 79 S.W.3d 835, this court discussed Devlin v. Scardelletti, 536 U.S. 1, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002), wherein the United States Supreme Court determined that unnamed . class members, who have timely objected to the settlement at the fairness hearing, can bring an appeal of the approval of the settlement without first intervening. The Ballard court distinguished Dev-lin in that it had differing facts and law. Devlin involved a mandatory class action certified under Federal Rule of Civil Procedure 23(b)(2). Unnamed class members have no right to notice or an opportunity to opt out of a class certified under federal Rule 23(b)(2). Such a mandatory class does not exist in Arkansas by operation of Arkansas Rule 23(c)(2), which requires opt-out rights in all class actions. Since Devlin was a mandatory class, it did not provide unnamed class members with the option to exclude themselves from the class, while the class in DeJulius did have the right to opt out of the class. Thus, after distinguishing Devlin, the Ballard court went on to conclude that Haberman was the applicable and controlling law, such that unnamed class members who fail to intervene are precluded from appealing a class settlement. It is now well-settled law in this state that an unnamed class member who does not intervene cannot appeal a settlement approved by the class, even if the unnamed class member objected to the settlement.
| DeJulius affirmed Ballard and is the law that controls this case. As this court stated in DeJulius, by attempting to intervene rather than opt out of a settlement, Crager undertook the risk that his motion to intervene would be denied for failure to satisfy the requirements of Rule 24 of the Arkansas Rules of Civil Procedure, and that he would then be bound by the settlement as approved by the circuit court. Crager’s strategic election not to opt out of the settlement class has left him without standing to pursue an appeal of the settlement.
Of course, Crager does have standing to appeal the denial of his motion to intervene. In such an appeal, he would receive appellate review of the issues related to the settlement that he seeks. For example, the issue of whether his due-process rights are violated by our requirement that he first intervene to obtain standing to appeal the settlement would arise in the context of the appeal of the denial of his motion to intervene. That is, assuming of course that Crager raised such a due-process argument below to the circuit court, which he did not. Arguments not raised below, even constitutional ones, are waived on appeal. Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). As another example, the issue of whether his interest was adequately represented by the class and class counsel would, again assuming it was preserved for review, arise in the context of whether Crager had an interest that was inadequately represented by the parties to warrant intervention under Rule 24. However, although Crager’s notice of appeal stated that he was appealing from the order denying his motion to intervene, he did not in his brief to this court assign any error to the circuit court’s analysis or findings with respect to the denial of his motion, to intervene. Crager’s appeal of 117the denial of his motion to intervene is therefore abandoned, as arguments not advanced on appeal must be deemed abandoned. See Robbins v. Johnson, 367 Ark. 506, 241 S.W.3d 747 (2006). In summary, Crager has waived by abandonment the appeal of his motion to intervene, and his election to remain in the class has left him without standing to appeal the settlement. Accordingly, consistent with our holding in Haberman, we grant the motions to dismiss Crager’s appeal.
IV. Denial of Hunter’s and Shepherd’s Motions to Intervene
We next consider the appeals by Hunter and Shepherd of the denial of their motions to intervene. Although the circuit court held separate hearings and heard argument from four groups seeking to intervene in this action, only the separate motions to intervene filed by Appellants Crager, Hunter, and Shepherd remained at the time the circuit court entered its December 8, 2009 order denying the motions. The three motions sought intervention as a matter of right pursuant to Rule 24(a) and permissive intervention pursuant to Rule 24(b). The circuit court found that none of the requests for intervention complied with the procedural requirements of Rule 24(c) and denied the motions on that basis alone. In addition, the circuit court found that Crager, Hunter, and Shepherd were not entitled to intervene as a matter of right. In the exercise of its discretion, the circuit court further declined to grant the three unnamed class members permissive intervention.
l1sAs we have previously determined, Crager has waived the appeal of his motion to intervene. Separate Appellants Hunter and Shepherd have preserved their arguments for our review, and we now consider their arguments together.
Permissive intervention is a matter within the circuit court’s discretion and is subject to the abuse-of-discretion standard of review. Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). When intervention of right is at issue, however, our standard of review has not been set forth when the denial is based on the failure to meet the requirements of Rule 24 rather than on the untimeliness of the motion. DeJulius, 373 Ark. at 159-60 n. 3, 282 S.W.3d at 755 n. 3. There are no issues of timeliness raised in the present appeal. The parties in the present case have agreed, without briefing the issue, that the appropriate standard of review to be applied here is abuse of discretion. We are hesitant to set forth a standard of review when the parties on appeal have not addressed the issue. However, to remain consistent with our approach in DeJulius, we will apply the abuse-of-discretion standard in reviewing these two motions.
On appeal, Shepherd and Hunter allege that the circuit court erred in finding that their motions to intervene did not comply with the procedural requirement of Rule 24(c) of the Arkansas Rules of Civil Procedure. The circuit court found that Hunter’s motion was procedurally defective for failure to attach the pleading required by Rule 24(c) “setting forth the claim or defense for which intervention is sought.” Ark. R. Civ. P. 24(c) (2010). The circuit court relied on Polnac-Hartman & Associates v. First National Bank in Albuquerque, 292 Ark. 501, 731 S.W.2d 202 (1987), in which this court stated that a motion to intervene is deficient and does not show an entitlement to intervene as of right or permissively if it attaches no pleading, because without the pleading the circuit court “may not have any idea of the right asserted by the would-be inter-venor.” Id. at 504, 731 S.W.2d at 204. As for Shepherd’s motion, which was accompanied by a proposed complaint in intervention, the circuit court found that it was “procedurally deficient because it failed to make any class action allegations consistent with Rule 23, and it was admittedly filed so that Shepherd could stay this action rather than to pursue a claim or defense.” The circuit court clearly concluded, “[b]ecause each of the Motions to Intervene was procedurally defective, they are DENIED in the exercise of the Court’s discretion on that basis alone.”
Hunter argues that her failure to attach a pleading was not fatal because the circuit court was fully apprised of the facts and arguments justifying the relief she sought in her motion. She cites Lowell v. Lowell, 55 Ark. App. 211, 934 S.W.2d 540 (1996), where the court of appeals applied Polnac-Hartman, 292 Ark. 501, 731 S.W.2d 202, and found no abuse of discretion in granting a father’s request to intervene in his son’s dependency-neglect proceeding, despite the father’s failure to attach a pleading to his motion. The court of appeals reasoned that, because the trial court was informed, by way of the motion itself and attached affidavits, of the rights to be asserted by the would-be intervening father, the purpose behind Rule 24(c) was satisfied.
| gpHunter contends that there can be no reasonable dispute that she properly advised the circuit court of the facts, allegations, and specific relief sought in her motion to intervene by way of the motion itself, the supplemental objection, and the argument of counsel at the hearing. We disagree. Hunter’s motion to intervene made only broad and conclusory allegations that her interest was not being adequately represented by the class, and it offered little, if any, information to the circuit court of the “claim” she would assert if allowed to intervene.
As for her motion, there was Hunter’s assertion that the class definition was too broad because it “fail[ed] to account for significant differences in state law that make it unfair to deny residents of various states, such as Texas, the ability to take advantage of advantageous provisions of their own states’ consumer laws.” At the hearing on the motion, Hunter’s counsel offered nothing more than conclusions unsupported by any allegation of facts or law, when he argued to the circuit court that Hunter’s home state of Texas would likely interpret the phrase “actual charges” as the amount stated on a provider’s bill and that Texas, unlike Arkansas, has a more liberal view of an insured’s right to bring a bad-faith claim. As for Hunter’s supplemental objection, it offered nothing additional from which the trial court could have identified the claim that Hunter would assert if granted intervention. The Settling Plaintiffs’ complaint asserted at least nine causes of action ranging from breach of contract and bad faith to fraud and equitable estoppel. The complexity of the instant litigation covering multiple states underscores the necessity of Rule 24’s requirement that a motion to intervene 121be accompanied by a pleading setting forth “the claim or defense for which intervention is sought.” Ark. R. Civ. P. 24(c).
We are not persuaded that Hunter’s case is more like Lowell, 55 Ark. App. 211, 934 S.W.2d 540, than Polnac-Hartman, 292 Ark. 501, 731 S.W.2d 202. The claim sought to be asserted in Lowell, which is the claim that a father would have in his son’s dependency-neglect proceeding, while of the utmost importance, is not nearly as complex and difficult for a trial court to discern in the absence of a pleading as would be the claim of an assignee of multiple notes and mortgages in a foreclosure action, as was the case in Polnac-Hartman, or as would be the claim of a single unnamed class member in a multi-state settlement class of 250,000 persons, as in this case. Despite the bare conclusions alleged in Hunter’s motion, supplemental objection, and by her counsel at the hearing, there remained nothing from which the circuit court could determine what claim or claims, for bad faith or otherwise, Hunter would assert upon intervention. Accordingly, we find no abuse of discretion in the circuit court’s denial of Hunter’s motion to intervene because it was not accompanied by a pleading as required by Rule 24(c).
As for Shepherd, he takes issue with the circuit court’s finding that his accompanying complaint was procedurally deficient because “it failed to make any class action allegations consistent with Rule 23, and it was admittedly filed so that Shepherd could stay this action rather than to pursue a claim or defense.” Shepherd challenges the first part of this finding, arguing that Rule 24 does not require him to make class allegations consistent with Rule 23 | g2and that the circuit court abused its discretion by imposing requirements beyond those set forth in Rule 24. The circuit court’s finding does not impose a requirement beyond that imposed by Rule 24. Rather, this finding is simply an indication that Shepherd’s complaint had not alleged anything that would enhance the representation of the class because it did not allege anything beyond what was already alleged in the complaint filed by the class representatives. In short, the circuit court found that Shepherd’s complaint asserted only his individual causes of action. The record supports such a finding, and we see no abuse of discretion with respect to it.
Shepherd next challenges the second component of the circuit court’s finding and argues that the record does not support the determination that Shepherd’s intent in seeking intervention was to stay the settlement rather than to pursue a claim or defense. On the' contrary, the record clearly supports the circuit court’s finding that Shepherd admitted he was seeking to intervene for the express purpose of delay. Two days after he filed his motion to intervene, Shepherd filed with the circuit court a request for expedited consideration of his motion to intervene, wherein Shepherd informed the circuit court that on the same day he had filed his motion to intervene, his counsel had also filed, on behalf of another client in a competing class action, an emergency motion for injunctive relief prohibiting the Company from .pursuing final approval of the settlement agreement in the instant proceedings. See Gooch, 589 F.3d 319. Shepherd’s motion also stated that he was requesting expedited consideration “so that he may then file his own motion to stay these proceedings.” The | ^record therefore clearly supports the circuit court’s finding regarding Shepherd’s purpose. We find no abuse of discretion in the circuit court’s conclusion that Shepherd’s motion to intervene was procedurally defective because the accompanying complaint did not contain any class allegations and because Shepherd’s purpose in seeking intervention was to delay the settlement proceedings rather than to pursue a claim or defense.
The circuit court’s order clearly found that Hunter’s and Shepherd’s motions to intervene were procedurally defective and were denied on that basis alone. We affirm that decision as being without an abuse of discretion.
The circuit court went on, however, to analyze the motions under Rules 24(a) and (b) governing intervention as of right and permissive intervention. On appeal, Appellants Hunter and Shepherd assign error to this analysis as well. We need not address in detail these assignments of error, however, as we have affirmed the circuit court’s ruling that the interventions should be denied because the motions were procedurally deficient. Suffice it to say here that any interests that Hunter and Shepherd intended to assert in this case were either protected by the class representatives or by their right to opt out of the settlement class. They both made a strategic decision to remain in the class, and were unable to identify any reason why the class representatives could not adequately represent their interests. Intervention of right is correctly denied under such circumstances. DeJulius, 373 Ark. 156, 282 S.W.3d 753. They both made it clear that they sought intervention for the express purpose of delaying the settlement proceedings. As the circuit court found, delay in the class members’ receipt of their | ^settlement benefits is cause for denial of permissive intervention. Ballard v. Garrett, 349 Ark. 371, 78 S.W.3d 73 (2002). Accordingly, there was no abuse of discretion in denying the motions to intervene.
V. Hunter’s Remaining Points on Appeal
There are two remaining points on appeal raised in Hunter’s brief. The first of these is that by preventing the intervention of objectors, the circuit court immunized its fairness determination from appellate review and thus denied Hunter’s and other objectors’ due-process rights. At the hearing on her motion to intervene, Hunter’s counsel argued to the circuit court that if it did not grant intervention to an absent class member, that would mean that not one absent class member could obtain appellate review of the settlement. Hunter, however, never raised the due-process aspect of this argument to the circuit court, and we therefore do not consider that aspect any further. Issues are waived that are raised for the first time on appeal, and we do not address any argument, including a constitutional argument, that was not raised below. Wamock, 336 Ark. 506, 988 S.W.2d 7. As for her argument concerning the circuit court’s immunizing from appellate review its decision to approve the settlement, we reiterate our previous observation that the concerns raised about the settlement by an objector who has been denied intervention are concerns that will receive appellate review in the context of an appeal of the denial of the motion to intervene.
Hunter’s second and final point on appeal is that the circuit court arbitrarily denied her due-process right to discovery and to participate in the hearing. This argument is wholly [¡^without merit. Hunter waived her right to participate in the hearing in her pro se objection that she timely filed with the circuit court. She timely raised her objections in her pro se letter to the court and clearly told the court she would not appear at the hearing. After the deadline for objecting had passed, however, she hired counsel who attempted to file a supplemental objection, to request discovery, and to appear at the final hearing. Because these additional requests were untimely according to the time set in the notice to class members, the circuit court denied them. Contrary to her assertions, the circuit court did not prohibit Hunter or her counsel from attending the final hearing, it only denied her counsel’s supplemental requests for discovery and to participate in the final hearing because they were untimely and inconsistent with her pro se objection. It is significant that the circuit court did allow Hunter’s counsel to appear at the hearing on her motion to intervene and to present argument as to these supplemental requests; thus, Hunter did have an opportunity to be heard by her counsel on these requests. The record supports the circuit court’s reasoning that the class members had previously engaged in adequate discovery, and that counsel’s request to appear at the final hearing was untimely and contrary to Hunter’s initial timely pro se objection. We find no abuse of discretion in the circuit court’s denial of these additional requests.
The order of the circuit court denying Hunter’s and Shepherd’s motions to intervene is affirmed. The motions to dismiss Crager’s appeal are granted.
Affirmed in part; dismissed in part.
. Both the Settling Plaintiffs and the Company cite this court to case law from federal courts applying Rule 23 of the Federal Rules of Civil Procedure and concluding that a case is not moot when a settlement is tentative and subject to court approval, even if the settlement is filed simultaneously with the complaint. See, e.g., Cariough v. Amchem Prods., Inc., 834 F.Supp. 1437 (E.D.Pa.1993). Those federal cases, as well reasoned as they may be, are based on federal concepts of justicia-bility, which include mootness and lack of adverse interests as components of subject-matter jurisdiction. As we noted earlier in this discussion, Arkansas concepts of justicia-bility and subject-matter jurisdiction differ significantly from the concepts based on Article III of the United States Constitution. Accordingly, we will not look to those federal cases for persuasive authority in this case. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Patrick Sexton, as executor of his father’s estate, contends that the trial court erred in finding that appellee Bobbie Sexton was entitled to a homestead in his father’s estate. We affirm the trial court’s order.
Statement of Facts
Bobbie Sexton was married to Clyde Sexton in 1983, and the couple separated in 1990. Bobbie claims that Clyde was abusive to her, which caused her to move into her drapery shop. The drapery shop was property on Highway 51 that she and Clyde owned together. Clyde remained at 252 Marjorie Lane, the house he owned prior to his marriage with Bobbie and where they lived until the date of separation. Bobbie claimed that she always | ^planned on moving back to the marital home, where she had left clothes and several belongings, but she did not think Clyde had changed enough for her to go back.
Clyde Sexton died on September 20, 2007, and a petition for probate of will and appointment of personal representative was filed on September 26, 2007. Clyde left his estate to his son Patrick and specifically left nothing to his estranged wife Bobbie, who signed a statutory election form on October 31, 2007, to take against the will. On November 24, 2009, Bobbie filed a petition seeking to reserve as her homestead the property at 252 Marjorie Lane. Clyde’s estate filed a response arguing that Bobbie did not qualify for homestead rights in the Marjorie Lane property because she had lived separate and apart from Clyde for many years prior to his death and she was living in her current residence on Highway 51, which was property she had acquired jointly with Clyde that became wholly hers upon Clyde’s death.
Following a hearing, the trial court granted Bobbie’s claim for homestead rights in 252 Marjorie Lane by order filed May 12, 2010. The estate filed a timely notice of appeal on May 24, 2010. This appeal followed.
Applicable Law
The constitutional provision at issue is codified in Arkansas Code Annotated section 28-39-201(a) (Repl.2004), which provides as follows:
If the owner of a homestead dies leaving a surviving spouse, but no children, and the surviving spouse has no separate homestead in his or her own right, the homestead shall be exempt, and the rents and profits thereof shall vest in the surviving spouse during his or her natural life.
See Arkansas Constitution, art. 9, § 6 (1874).
LWe review probate matters de novo but will not reverse probate findings of fact unless they are clearly erroneous. McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003); Morton v. Patterson, 75 Ark. App. 62, 54 S.W.3d 137 (2001). A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Morton, supra. We also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. McAdams, supra.
Discussion
Patrick argues that the widows’ and children’s entitlement to homestead rights was enacted to ensure rights to widows and children left behind when a man died or was killed. He contends that at the time when the law was originally enacted, women were not entitled to a separate homestead from their spouses and in reality were denied actual ownership of a grand portion of the real estate located in this state. He argues that, since then, women have been recognized as having equal rights, including the ability to have separate homesteads and the right to own property in their own name, separate and apart from their husbands.
He avers that, in the case at hand, Bobbie and Clyde were separated for seventeen years, during which time she lived in property owned in both their names on Highway 51. He emphasizes that twenty-six months after Clyde’s death, Bobbie claimed a homestead exemption in the Marjorie Lane property, despite the fact that she had, by operation of law, been made sole owner of the Highway 51 property, where she had made her home for 14seventeen years prior to his death. Patrick contends that the application of the widow’s exemption in these circumstances amounts to a double reward to Bobbie and defeats the intent for which the exemption and privilege were designed.
He cites Garabaldi, Adm’r v. Jones, 48 Ark. 230, 2 S.W. 844 (1886), where the Arkansas Supreme Court considered the issue of whether a widow can alienate her right to the homestead. The supreme court held that the widow cannot alienate her rights, but had forfeited her rights when she conveyed the lands in question to appellees. Id. at 237, 2 S.W. at 847. He also cites Duffy v. Harris, 65 Ark. 251, 45 S.W. 545 (1898), where the court held that the widow did not, by her abandonment of her husband, and living apart from him in another state, forfeit her right to his homestead, and Johnston et al. v. Turner, Adm’r, 29 Ark. 280 (1874), where the court held that actual occupancy of the homestead by the wife before the husband’s death was not required in order for her to claim that property as her homestead after his death. Patrick contends that these cases were decided when a wife was not allowed to have a domicile separate and apart from her husband. Consequently, a wife could not make for herself a domicile separate from that of her husband, and no legal rights either came or left because of her action.
Patrick argues that Bobbie’s election twenty-six months after his father’s death confirms that she had a homestead in her own right, where she resided for those twenty-six months. He claims that the only proof regarding her intention to take the Marjorie Lane property at the time of Clyde’s death, other than the election, was her self-serving testimony. He points |sout that she further testified that she did not have any idea if she would ever return to Marjorie Lane when she separated from Clyde. He contends, therefore, that when she became the sole owner of the Highway 51 property at Clyde’s death, that property became her homestead.
Both parties cite Bruce v. Bruce, 176 Ark. 442, 3 S.W.2d 6 (1928), as having facts similar to the instant case. In Bruce, the wife owned land prior to her marriage. Id. at 442, 3 S.W.2d at 7. Upon her marriage, she lived with her husband until they separated, and she moved back to her original homestead. Id. The parties never divorced, and upon the husband’s death, the wife demanded the husband’s land as her homestead. Id. at 443, 3 S.W.2d at 7.
Patrick claims that Bruce is distinguishable from the case at hand in that there is no co-ownership of property involved and the evidence in Bruce was that the wife had been welcome to return to the husband’s property whenever she wanted. Id. Patrick contends that the prevailing logic by the Bruce court was the wife’s inability to have a legal domicile separate from her husband. Further, he points out that the wife immediately tried to gain possession of the deceased husband’s home. The Bruce court stated, “If, after his death, she had remained on her own property, claiming that as her homestead, it might have been an abandonment of her homestead in his estate. But she did not do this.” Id. at 447, 3 S.W.2d at 8. Patrick points to Bobbie’s twenty-six-month delay in claiming the Marjorie Lane property and argues that she abandoned any homestead in it.
| ^However, Bobbie argues that the issue of the timeliness of her election to the Marjorie Lane property was not before the trial court. During the trial court’s hearing, counsel for the estate stated,
Your Honor, I resent the question that [sic] there’s never been a dispute as to when she claimed it, the question is is she entitled, as I stated in the letter. Mr. Williams is making an issue that’s not before the Court. We’ve never once claimed she didn’t timely file. We haven’t brought that up.
The trial court asked, “So am I to understand there is not an issue that she did not — that she has not at least put everybody on notice and has made a formal election to exert her homestead right.” Counsel for the estate responded, “There is not a written request for such, but we all knew she wanted the house, okay.” The trial court concluded by stating,
For the Court’s purposes, the Court is, at this juncture, going to be considering not whether there was a technical election to exercise homestead, that has been done sufficiently by the notices and by the obvious knowledge of the estate that she wanted to move into that home. So the only thing the Court is trying to resolve today is, for some reason or another, is she entitled to exercise [sic] to have that homestead right.
Based on the above ruling, the parties stipulated as to the timing and did not litigate the issue as to whether she waited too long to exercise her rights. As noted by Patrick’s counsel, the estate knew she intended to claim the Marjorie Lane property, and this issue was not litigated at the trial-court level. Failure to obtain a ruling on an issue from the circuit court precludes review on appeal. See, e.g., Garcia v. Estate of Duvall, 375 Ark. 520, 293 S.W.3d 389 (2009).
Bobbie responds to the argument that she abandoned the homestead by contending that courts have consistently ruled that, in order to constitute an abandonment of a homestead, the owner must leave it with the intention of renouncing it and forsaking it, never 17to return; in other words, the law does not require continuous occupation of the homestead in order to make the homestead election. See Monroe v. Monroe, 250 Ark. 434, 465 S.W.2d 347 (1971); Bradley v. Humphreys, 191 Ark. 141, 83 S.W.2d 828 (1935). Further, in response to Patrick’s argument that the law regarding homestead rights is antiquated, Bobbie cites Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001), where the Arkansas Supreme Court held that homestead rights were extinguished by the wife when she mur dered her husband. We agree with Bobbie’s contentions.
Bruce, swpra, is controlling. In that case the opposing party argued that the widow was not entitled to claim the homestead out of the lands because she abandoned her husband and lived apart from him on a homestead that belonged to her personally. In other words, since she owned and occupied a separate homestead in her own right, her opponents argued, she should not be able to claim a homestead from the deceased husband. However, since the right to elect the homestead accrues at the death of the spouse, not during the marriage, it did not matter that she lived on another piece of property in which she possessed an interest.
The Bruce court noted that it would be unreasonable to deny a widow a right to a homestead where the conduct of a man is such that a wife must live with him agreeably until he dies in order to be entitled to the homestead and that she would disen-title herself by leaving him, no matter what the treatment may have been. The fact that they could not agree and that this failure to agree made it necessary for her to live apart from him did not deprive her of her homestead rights.
|sThe facts contained within Bruce and the facts contained within this case are virtually the same. In both cases, the wives were forced to leave the marital home due to an abusive situation. They lived in a structure and on property in which they possessed an interest in their own right. The court in Bruce noted that even if there had been a desertion, it did not amount to a forfeiture of that widow’s homestead right, and it was immaterial that she had an ownership interest in other property. The spouse’s right to a widow’s homestead accrued when her husband died, and she had a right to elect her homestead then. Bruce, 176 Ark. at 444, 3 S.W.2d at 7. Bobbie argues, as was stated in Bruce, that if her desertion did not deprive her of her homestead right, certainly the fact that she lived on property belonging to her personally would not affect it. Id. at 446, 3 S.W.2d at 8.
The question of whether Bobbie abandoned the property was answered by her testimony that she always intended to go back. The Bruce court noted that “an abandonment is accomplished not by going away without the intention of returning at any particular time in the future, but by going away with the definite intention never to return at all.” Bruce, 176 Ark. at 447-48, 3 S.W.2d at 8. Thus, the trial court’s order should be affirmed as to Bobbie’s right to a homestead in the Marjorie Lane property. Based upon the evidence, a determination that she did not intend to abandon the homestead is not clearly erroneous. Further, the timeliness of her claim was not an issue before the trial court.
Affirmed.
VAUGHT, C.J., and MARTIN, J., agree. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Charles Mason appeals the October 6, 2009 judgment filed by the Union County Circuit Court in favor of appel-lee David Mitcham. Appellant argues that the circuit court erred by (1) applying the incorrect legal standard, and (2) ignoring an undisputed fact. We find merit in appellant’s argument and reverse.
This appeal involves a produets-liability case about a trailer that broke. Appellee David Mitcham bought the trailer from appellant Charles Mason for $14,000. The trailer is known as a double-bunk trailer, which is made by welding I-beams together and attaching upright “bolsters” to the frame in which to hold logs. In order for the trailer to sit flat when hooked to a truck, the front portions of the long I-beams are notched out. This notching out causes a weakness in the trailer’s frame that can cause a break. In order to prevent such a break, the trailer must be loaded in a particular manner, either by loading short logs centered over the | ¡wheel bases in the front and the back, or by loading longer logs with the weight distributed fully over the wheel bases. Conversely, if the trailer is “center loaded,” with the logs centered short of the first bolster, the trailer will eventually break at the weakened area. This weakness appears to be an industry-wide issue and not specific to the trailers made by appellant.
It is undisputed that appellant constructed the trailer that is the subject of the litigation. It is also undisputed that this trailer broke because it was center loaded. Appellant contends that he informed appellee of the trailer’s limitations and explained that it should not be center loaded. Appellee’s own testimony indicated that he knew not to center load the trailer even prior to the warning. Appellant claims that it is also undisputed that appellee personally loaded this particular trailer with the load being carried at the time it broke. But appellee asserts that a more accurate statement is that he testified that he did not know who loaded the trailer; that either he or an employee could have loaded it.
After a bench trial, the circuit court issued a judgment on October 6, 2009, setting forth its findings and conclusions in favor of appellee. The judgment defined the issue as “whether the design utilized by Mason was inherently defective to such an extent as to render Mason liable.” The judgment does not mention that the defect must render the trailer “unreasonably dangerous” but does include a finding that the trailer was “inherently defective” because of the weakness where the I-beams were notched. The circuit court further found that the warning to appellee was not sufficient to cure the defect because someone other than appellee could load the trailer. Finally, the judgment includes a finding Isthat “an unidentified crew member loaded the logs onto the second and third set of bolsters, centering the logs on the trailer.” A timely notice of appeal was filed on November 5, 2009, and this appeal followed.
When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Pine Meadow Autoflex, LLC v. Taylor, 104 Ark. App. 262, 290 S.W.3d 626 (2009). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all of the evidence, is left with a definite and firm con-' viction that a mistake has been committed. Robinson v. Villines, 2009 Ark. 632, 362 S.W.3d 870. In conducting its review of a circuit court’s findings of fact, we consider the evidence and all reasonable inferences therefrom in the light most favorable to the appellee. Murphy v. City of West Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003). Appellate courts give due regard to the opportunity and superior position of the circuit court to determine the credibility of the witnesses. See Combs v. Stewart, 374 Ark. 409, 288 S.W.3d 574 (2008). However, a circuit court’s conclusion on a question of law is reviewed de novo and is given no deference on appeal. Id.
The law is clear that in order to recover under a products-liability claim, a defect alone is not enough; the defect must render the product “unreasonably dangerous” as well. Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983). Appellant argues 14that the circuit court wholly ignored the “unreasonably-dangerous” element. The strict products-liability claim asserted by appellee had four elements: (1) damages; (2) proof that appellant was a manufacturer of the product; (3) proof that the product was supplied in a defective condition that rendered it unreasonably dangerous; and (4) proof that the defective condition was a proximate cause of the damages. AMI Civil 1008; Berkeley Pump, 279 Ark. at 391-92, 653 S.W.2d at 131-32.
Appellant contends that Arkansas law could not be clearer in this regard— specifically, that the unreasonably-dangerous element is necessary for any recovery. Our supreme court explained in Berkeley Pump, supra, that our law is based on section 402A of the Restatement (Second) of Torts. Explicit in the language of section 402A is that a product must be both defective and unreasonably dangerous. See Berkeley Pump, 279 Ark. at 391, 653 S.W.2d at 131. A defective condition alone is not enough. The defective condition must render the product “unreasonably dangerous.” Id. Appellant maintains that the circuit court did not go far enough in its findings because the issue in this case was whether the design was defective so as to render the trailer unreasonably dangerous. The circuit court failed to make any finding whatsoever with respect to the “unreasonably-dangerous element” of the cause of action, finding only that the product was inherently defective. Appellant urges that is simply not enough to support the judgment against him.
When cases are tried to the bench, the only time a circuit court has to make specific findings of fact and conclusions of law is when a party makes such a request of the court prior | Bto the judgment being entered. Ark. R. Civ. P. 52(a) (2010). In the instant case, the circuit court heard all the evidence and ruled that appellant was liable under a theory of products liability absent a request by appellant under Rule 52 of the Arkansas Rules of Civil Procedure to make specific findings of fact and conclusions of law. Under our standard of review, we hold that based upon the circuit court’s ruling in favor of appellee, it inferred from the evidence that the trailer was not only defective but also unreasonably dangerous. We further hold that the circuit court’s finding was clearly erroneous.
In Berkeley Pump, our supreme court noted that both the products-liability statute and section 402A “define unreasonably dangerous as requiring something beyond that contemplated by the ordinary and reasonable buyer, taking into account any special knowledge of the buyer concerning characteristics, propensities, risks, dangers, and proper and improper uses of the product.” Berkeley Pump, 279 Ark. at 394, 653 S.W.2d at 133 (emphasis in original). Because the buyer in Berkeley Pump was a knowledgeable buyer who should have contemplated that the pumps might not perform adequately, the pumps could not be considered “unreasonably dangerous.” See also Ark.Code Ann. § 16-116-102(7)(A) (Supp.2009) (defining “unreasonably dangerous” based, in part, on the consumer’s “special knowledge, training, or experience”).
Our supreme court in Berkeley Pump appears to have adopted a subjective approach to the “consumer expectations test” for determining when a product is unreasonably dangerous. Consumer expectations, as defined by Berkeley Pump, are the expectations of the actual |fiplaintiff sitting in the courtroom. Here, the evidence indicates that the actual plaintiff sitting in the courtroom, i.e., appellee, had actual knowledge of the trailer’s potential limitations; thus the ability of the product to be “unreasonably dangerous” is at least undercut and may be destroyed altogether. The record before us supports that appel-lee knew that the trailer he bought should not be center loaded. Nevertheless, he either center loaded the trailer himself or supervised an employee doing so.
Evidence was presented to the circuit court regarding the potential danger of the trailer. Appellant testified as to the construction of the product and explained that the product has a weak point in it that necessitates that logs be loaded on this type of trailer in a particular fashion and that, if logs are loaded in any way other than the particular fashion, the trailer will break at its weak point. Appellant also testified that he was aware that trailers of this type are often loaded incorrectly by users of the product. Appellant testified that he did not like manufacturing these trailers because of the defect, but he did manufacture them despite the defect because his customers wanted such trailers. We acknowledge that evidence was presented that supports the circuit court’s findings. But when considering all of the evidence under the subjective approach to the consumer-expectations test for determining when a product is unreasonably dangerous, we are indeed left with a definite and firm conviction that a mistake has been committed. Accordingly, we reverse the circuit court’s order with respect to liability.
Appellant also argues that the circuit court incorrectly based its conclusions on the erroneous finding that someone other than appellee loaded the trailer on this particular day. |7He argues that the evidence clearly indicates that appellee is the person who loaded the trailer, on the day in question, with the load that ultimately broke the trailer. The testimony of appel-lee’s employee, Emmett Maroney, indicated that he was pulling the trailer when it broke. On cross-examination, Maroney testified that “David Mitcham loaded the trailer.” Then again, when asked how he knew he was “legal,” Maroney said, “Mr. Mitcham would be better to know that. He’s the one that loaded the trailer; I was just the driver to the mill.” Thus, appel-lee’s agent and employee definitively testified that appellee loaded this trailer.
Appellee, however, points to his own testimony in support of his contention that someone else may have loaded the trailer. On direct examination, appellee testified, “I was thinking Mr. Maroney loaded the trailer because I was delimbing, putting logs behind him. Mr. Maroney said he didn’t load the trailer but, but I couldn’t argue, that’s been nine years ago.” Then on cross-examination, appellee testified, “I don’t remember whether I loaded the logs or not. I can’t tell you if I loaded the logs or if Ken loaded them. I don’t dispute his testimony.”
Appellee acknowledged that he could not dispute his own employee’s testimony that he, appellee, loaded the trailer. The only evidence of who did load the trailer was Maroney’s testimony, and he specifically testified that appellee did. Irrespective of which person actually loaded the logs onto the trailer, both appellee and his employee were present to observe the improper center loading. We agree that, at a minimum, appellee knew that this trailer was 18center loaded and was present for the loading. Accordingly, the circuit court’s finding is clearly against the preponderance of the evidence.
Reversed.
VAUGHT, C.J., and MARTIN, J., agree. | [
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PER CURIAM.
11 Appellant Duane J. Gonder was charged with capital murder, aggravated assault, aggravated residential burglary, kidnapping, and furnishing prohibited articles. Pursuant to a plea agreement, the capital-murder charge was reduced to first-degree murder; the kidnapping and burglary charges were dropped; and appellant pleaded guilty in Drew County Circuit Court to one charge each of first-degree murder, aggravated assault, and furnishing prohibited articles. He was sentenced to a cumulative term of 552 months’ imprisonment in the Arkansas Department of Correction.
Appellant first petitioned the trial court for a sentence reduction under Arkansas Code Annotated § 16-90-111 (Repl.2006) on the grounds that (1) appellant’s sentence placed an extreme burden on his family-because his mother relied on both appellant and appellant’s brother (the murder victim) for support and that (2) appellant’s attorney had failed to inform |2the court prior to sentencing that the victim was also armed, which would have helped appellant obtain a more lenient sentence. The trial court denied relief on this petition in a written order on October 4, 2010, holding that the request for sentence reduction based on appellant’s mother’s financial burden was, in effect, a request for leniency, which is an argument for executive clemency, not an issue for the trial court. Further, the trial court held that appellant’s argument regarding ineffective assistance must be brought under Arkansas Rule of Criminal Procedure 87.1 (2011), not under a petition for sentence reduction.
Appellant’s subsequent Rule 37.1 petition for postconviction relief reiterated the claim that his attorney had been ineffective for failing to introduce that the victim also had a gun. Appellant further asserted that, had his attorney been willing to introduce the victim’s weapon at trial, appellant would not have pleaded guilty, but would have proceeded to trial. Therefore, appellant asked for his sentence to be nullified, for the court to grant him an eviden-tiary hearing, and for a new trial. The trial court denied this petition in a written order dated November 23, 2010, finding that it was “illogical” to argue that counsel should have presented mitigating evidence when appellant was receiving exactly what he had bargained for with the state, i.e. dropped charges and reduced charges in exchange for a specific term of years.
Appellant timely filed notices of appeal from both the October 4, 2010 order and the November 23, 2010 order, and those appeals were consolidated in this court. Now before us is appellant’s pro se motion for appointment of counsel. We need not address the merits of ^appellant’s motion because it is clear from the record that appellant could not prevail if his appeal were permitted to go forward. Accordingly, the appeal is dismissed and the motion for appointment of counsel is moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to proceed where it is clear that the appellant could not prevail. Goldsmith v. State, 2010 Ark. 158, 2010 WL 1253187 (per curiam); Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam); Meraz v. State, 2010 Ark. 121, 2010 WL 844885 (per curiam); Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam).
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam) (citing Britt v. State, 2009 Ark. 569, 349 S.W.3d 290 (per curiam)). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Jamett, 2010 Ark. 28, 358 S.W.3d 874; Anderson v. State, 2009 Ark. 493, 2009 WL 3235533 (per curiam). In an appeal from a trial court’s denial of post-conviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence, under the standard set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. French v. State, 2009 Ark. 443, 2009 WL 3047356 (per curiam); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007).
As a threshold matter, we note that, while the trial court treated appellant’s first petition as a request for relief under Arkansas Code Annotated § 16-90-111, we have held |4that a petition that seeks postconviction relief cognizable under Rule of Criminal Procedure 37.1 is governed by that rule, regardless of the label placed on it by a petitioner. See Musgrove v. State, 2010 Ark. 458, 2010 WL 4680272 (per curiam); Carter v. State, 2010 Ark. 349, 2010 WL 3722001 (per curiam); Jackson v. State, 2010 Ark. 157, 2010 WL 1366994 (per curiam); McLeod v. State, 2010 Ark. 95, 2010 WL 682266 (per curiam). We have frequently held that, where, as here, a defendant pleads guilty, the only claims cognizable in a proceeding pursuant to Rule 37.1 are those that allege that the plea was not made voluntarily and intelligently or that it was entered without effective assistance of counsel. See Jamett, 2010 Ark. 28, 358 S.W.3d 874; French, 2009 Ark. 443, 2009 WL 3047356; State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998). Therefore, because he requested relief based on a claim of ineffective assistance of counsel, appellant’s first petition should have been considered by the trial court as a petition for postconviction relief under that rule. See Ark. R.Crim. P. 37.1(a); Musgrove, 2010 Ark. 458, 2010 WL 4680272.
Under the two-pronged Strickland test, a petitioner making a claim of ineffective assistance must first show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the U.S. Constitution. Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007). In doing so, the claimant must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. State v. Barrett, 371 Ark. 91, 96, 263 S.W.3d 542, 546.
As to the second prong of the test, the petitioner must show that counsel’s deficient | ¡^performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Jamett, 2010 Ark. 28, at 3-4, 358 S.W.3d at 876; Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per cu-riam). An appellant who has pleaded guilty normally will have considerable difficulty in proving any prejudice as her plea rests upon her admission in open court that she did the act with which she was charged. Cox v. State, 299 Ark. 312, 772 5.W.2d 336 (1989). To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has pleaded guilty must demonstrate a reasonable probability that, but for counsel’s errors, petitioner would not have so pleaded and would have insisted on going to trial. Buchheit v. State, 339 Ark. 481, 483, 6 S.W.3d 109, 111 (1999) (per curiam) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
Appellant argued that his trial counsel was ineffective because the murder victim was armed with a gun, and, according to appellant, had trial counsel informed the trial court of this fact during appellant’s guilty plea, appellant would have received a lesser sentence than the one called for in the plea agreement. However, as we explained in Jamett, this argument is unavailing because, when a defendant enters a plea of guilty in exchange for a specified term of incarceration, “the sentence imposed [is] part and parcel of the plea agreement itself.” 2010 Ark. 28, at 6, 358 S.W.3d at 878.
Under the terms of the plea agreement signed by appellant, if appellant pleaded guilty to the amended charges, “the State [would] recommend” a 552-month sentence and $855 in fines, fees, and costs.” We apply general contract principles in interpreting plea agreements. Jamett, 2010 Ark. 28, 358 S.W.3d 874 (citing Green v. State, 2009 Ark. 113, 313 S.W.3d 521). A subsequent attempt by appellant to alter the terms of the agreement by seeking a lower sentence than the one that he had contracted for would have been a breach of the agreement. See id. The appropriate remedy for such a breach would have been for the trial court to vacate the plea agreement and restore the parties to their respective positions prior to the agreement. See id. Thus, an attempt to mitigate and reduce the agreed-upon term of years could not have resulted in a lower sentence for appellant; he would have lost his bargained-for sentence entirely and gone to trial on all five original charges, including capital murder, where he potentially could have received a much harsher sentence.
Further, as we have already stated, to establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has pleaded guilty must demonstrate a reasonable probability that, but for counsel’s errors, petitioner would not have so pleaded and would have insisted on going to trial. Buchheit, 339 Ark. at 483, 6 S.W.3d at 111. Appellant did not allege such prejudice; he merely stated that he might have received a lesser sentence if his attorney had informed the court about the victim’s weapon, and appellant therefore sought to have “a reduction in sentence or in the alternative have the sentences run concurrent.” Moreover, any claim of prejudice based on the severity of the sentence is an issue for a plea for executive clemency and is unavailing in a Rule 37.1 petition. Jamett, 2010 Ark. 28, at 7 n. 4, 358 S.W.3d at 878 n. 4 (citing Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988)).
We note that the trial court’s order did not enter findings of fact or law as required by Rule 37.3. However, this court has affirmed the denial of a |7Rule 37.1 petition notwithstanding the circuit judge’s failure to make written findings under Rule 37.3 where it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. See Davenport v. State, 2011 Ark. 105, 2011 WL 835180 (per curiam) (citing Reed v. State, 375 Ark. 277, 289 S.W.3d 921 (2008)). Here, appellant cannot establish that trial counsel had a duty to present evidence of the victim’s weapon to the court in the hopes of obtaining a lower sentence or that the failure.to present this evidence prejudiced appellant, and it is therefore clear that no relief is warranted. As such, appellant could not pre vail if his appeal of the October 4, 2010 order were allowed to proceed.
As noted, after the trial court denied relief on appellant’s first petition, appellant filed a petition for postconviction relief under Rule 87.1, asserting the same ineffective assistance of counsel argument that he had included in his first petition, which the trial court denied as meritless in its November 28, 2010 order. However, Rule 37.2(b) provides that all grounds for relief available to a petitioner under the rule must be raised in his or her original petition unless the original petition was denied without prejudice to filing a second petition. As the first petition filed by appellant was a petition for postconviction relief under Rule 37.1, | ^regardless of the label he placed on it, he was barred from submitting a subsequent petition under that Rule, and his subsequent petition was subject to dismissal on that basis. See Omar v. State, 2011 Ark. 55, 2011 WL 539122 (per curiam) (citing Carter v. State, 2010 Ark. 349, 2010 WL 3722001 (per curiam)); see also Halfacre v. State, 2010 Ark. 377, 2010 WL 3915028 (per curiam). Accordingly, it is clear that appellant could not prevail on his appeal from the November 23, 2010 order.
Inasmuch as appellant could not prevail on his appeal of either of the trial court’s orders that denied postconviction relief, we dismiss the appeal. Appellant’s motion for appointment of counsel is moot.
Appeal dismissed; motion moot.
. We need not consider appellant’s argument for a reduced sentence based on the hardship to his family caused by his current sentence. Such an argument is, as the trial court noted, a request for leniency, which is an issue for executive clemency rather than a basis for postconviction relief. See Williams v. State, 320 Ark. 498, 500, 898 S.W.2d 38, 39 (1995) (explaining that the power to exercise clemency and reduce sentences is vested in the chief executive of this State and not in the courts). | [
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ROBERT J. GLADWIN, Judge.
| Appellants Melvin and Jeanette Emerson appeal the May 12, 2010 decree filed by the Van Burén County Circuit Court quieting title to the disputed land in favor of appellees Stephen and Toni Linkinogger and Harold and Luann Christian. Appellants argue that the circuit court erred in its application of the law and in finding that they failed to prove that their possession of the disputed property was adverse and hostile. We affirm.
Appellants own property located in Section 9, Township 10, Range 15, in Van Burén County, Arkansas, adjacent to property owned by appellees. Appellants obtained title to the property by deed executed by Melvin Emerson’s mother’s trust and filed on July 29, 2003. The property was previously purchased in 1950 by his stepfather, Mr. Dillard Hall, who bought the property from his in-laws, who had homesteaded the land in 1892. Melvin |2Emerson has been familiar with the prop erty since his mother married Mr. Hall, approximately twenty-five years ago.
The Linkinoggers obtained their property by warranty deed filed on March 19, 2008. The Christians obtained their property by warranty deeds filed on November 16, 2004, and March 3, 2005. The alleged boundary line between the properties was an old fence that had been in existence since the 1930s. Appellees commissioned a survey, dated March 18, 2008, which designated a boundary that went well into the pasture used by appellants. When appellees attempted to construct a fence on the survey line, they were stopped by appellant Melvin Emerson, who claimed that they had no right to construct the fence. On March 17, 2009, appellees filed a petition to quiet title and for an injunction seeking to establish a boundary line between the properties. On March 25, 2009, appellants filed an answer to the petition and a counterclaim seeking to quiet title up to the fence, based upon over seventy-five years of uninterrupted use.
A trial was held on April 9, 2010. At trial, appellant Melvin Emerson testified that he had run cattle on his land and the disputed pasture land for approximately twenty-five years. He explained that his stepfather had used the property to graze goats and other animals from the time he purchased his land in 1950. Additionally, appellant Melvin Emerson testified that he employed Con Agra to till the soil in the pasture and spread “chicken sludge” on the tilled soil for fertilizer. He explained that he and his family have plowed the property, sowed grass seed, cut hay off of it, grazed cattle, and hunted on the property the entire time they have gowned it and that the use of the property extended up to the fence line. Mr. Emerson did acknowledge that a thicket had grown up around the fence and that, since the filing of the lawsuit, he had made improvements to the fence. It is undisputed that the pictures of the fence that were introduced into evidence were taken after repairs to the fence were made.
Appellants introduced the testimony of Vesta O’Neal, who also owns property adjacent to appellants along the old fence line. Mrs. O’Neal testified that she moved to this property in 1936. She testified that she considered the fence to be the property line and that the fence had been in the same location since the late 1930s. She explained that appellant Melvin Emerson’s stepfather and predecessor in interest, Mr. Hall, ran cattle on this property for as long as she could remember.
Mr. Christian testified that, not only was the fence line overgrown with brush and not visible, but also that the fence was ineffective in that it allowed appellants’ cattle to escape onto his property. Mr. Christian explained that he had tried to fix the fence line by picking the fence up and nailing it to the post as a courtesy to Mr. Emerson. The cattle had previously been kept inside Mr. Emerson’s property because of the vines and the growth around the fence line, but once Mr. Christian began clearing out the overgrown woods, which included the fence line, and building a field, the cows began to cross the dilapidated fence.
Appellees argued that the requirements for adverse possession had not been established; therefore, the property line should be the survey line. The circuit court agreed with appellees, ruling that the property line was established by the survey and that appellants had not proven 14that their occupation of the disputed property was “adverse and hostile.” A final decree was filed on May 12, 2010, and a notice of appeal was filed on May 18, 2010.
We traditionally review quiet-title and boundary-line actions de novo. Rio Vista, Inc. v. Miles, 2010 Ark. App. 190, 374 S.W.3d 698. We will not, however, reverse findings of fact unless they are clearly erroneous. Id. Further, whether possession is adverse to the true owner is a question of fact. Id. We will not reverse a trial court’s finding regarding adverse possession unless it is clearly erroneous. Id. A finding is clearly erroneous if, “although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed.” R.K. Enters. LLC v. Pro-Comp Mgmt. Inc., 372 Ark. 199, 204-05, 272 S.W.3d 85, 89 (2008). In reviewing a trial court’s findings of fact, the appellate courts give due deference to the trial court’s superior position to determine witness credibility and the weight to be accorded their testimony. Thurlkill v. Wood, 2010 Ark. App. 319, 374 S.W.3d 790.
While the above standard applies to findings of fact, appellate courts will not defer to the circuit court on a question of law. Jones v. Abraham, 67 Ark.App. 304, 310, 999 S.W.2d 698, 702 (1999). The circuit court’s decision will be reversed if it “erroneously applied the law and the appellant suffered prejudice as a result.” Id. A question of law is presented where the facts are “undisputed or unequivocal.” Sterne, Agee & Leach, Inc. v. Way, 101 Ark.App. 23, 31, 270 S.W.3d 369, 376 (2007). Where the facts are not disputed in an adverse-possession case, the question presented on review is purely one of law. Moore v. Dunsworth, 2010 Ark. App. 446, 2010 WL 2103533.
| Appellants initially argue that the discretion of the circuit court was limited in this case because there was no dispute regarding the facts forming the basis of appellants’ adverse-possession claim. They submit that the Christians do not possess any information regarding the use of the property or the fence prior to their purchase of the property in 2004, and the Linkinoggers possess very limited knowledge regarding the property before it was purchased in 2008. Appellants point out that appellees did not present any other evidence at trial regarding appellants’ use of the property, or the history of the fence, for any time prior to their ownership. Thus, appellants claim that there was no issue of fact decided by the circuit court in finding that they did not prove their claim of adverse possession.
Appellants claim that the only dispute in this case is the application of well-established law to the uncontradicted facts. The circuit court found that the doctrine of adverse possession did not apply because “[t]he element of adverse and hostile cannot be met as to original parties or their subsequent owners.” They urge that this is a misapplication of the uncontradicted facts to the applicable law, and should be reversed on appeal.
We disagree. The circuit court reviewed the testimony of the parties and Mrs. O’Neal and examined the photographs of the disputed property line, most of which were taken within a year before the trial or at the time of the filing of the lawsuit and after much clearing had been done. While there may not have been a factual dispute as to the location of the fence line, there was a factual dispute as to the actual, legal boundary line between the properties. We decline to hold that the circuit court misapplied the law in its factual determination regarding appellants’ adverse-possession claim.
| (¡Appellants next contend that the circuit court misapplied the uncontested facts in granting appellees’ request to quiet title and for injunctive relief. We find no clear error in the circuit court’s conclusion that appellants did not establish adverse possession of the disputed land. In order to establish title by adverse possession, the person making that claim has the burden of proving that he has been in possession of the property continuously for more than seven years and that the possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Cleary v. Sledge Props., Inc., 2010 Ark. App. 755, 379 S.W.3d 680. The Arkansas General Assembly enacted certain statutory requirements for proof of adverse possession in Act 776 of 1995, now codified at Arkansas Code Annotated section 18-11-106. Id. In order for a claimant to establish adverse possession under this law, the claimant must prove color of title and payment of ad valorem taxes, in addition to the common-law elements of adverse possession. Id. Adverse possession occurs where possession of specific property is inconsistent with the true owner’s rights and is accompanied by certain acts, including hostility. Id.
Appellants reiterate that the property in question has been used for farmland since the late 1930s. Specifically, it was used to graze and pasture cattle. In order to establish a possession that is actual, open, notorious, continuous, hostile, and exclusive, appellants acknowledge that they must demonstrate acts of ownership that are consistent with such dominion over farmland used for grazing cattle. The acts of dominion over the property must be those that are typically and usually demonstrated by one who owns pasture land or 1 farmland. Appellants argue that the evidence presented established acts of ownership that proved that their possession was “actual, open, notorious, continuous, hostile, and exclusive,” given the nature of this property, and that the circuit court erred in ruling that they did not prove their case of adverse possession.
Appellants cite numerous cases in support of their position, including Boyd v. Roberts, 98 Ark.App. 385, 255 S.W.3d 895 (2007). In that case, this court addressed the contested ownership of property that was between an old fence, and the “true property line” determined by a recent survey. The appellants commissioned a survey that showed that the property line ran from seventy-five to ninety-six feet on the appellees’ side of an existing barbed-wire fence. The appellants then notified the appellees that they were claiming ownership of this property, and the appellees filed suit to quiet title to the lands based on a claim of adverse possession. Id. The circuit court entered a decree quieting title in the name of the appellees. Id.
On appeal, this court stated that the question in regard to the fence was whether the enclosure is sufficient to “fly the flag” over the land and put the trae owner on notice that his land is held under an adverse claim of ownership. Boyd v. Roberts, supra. In that particular case, the court concluded that the total activities of the appellees constituted sufficient evidence of possession and ultimately affirmed the circuit court’s ruling that the appellees had obtained the disputed property through adverse possession. Id.
Appellants claim that the facts in the present case are even stronger and more persuasive in favor of a finding of adverse possession than those in the Boyd case. They submit that the |Rfence in this case was not “degraded” to the point that it was no longer obvious to all parties. The fence was old but was still used to contain cattle at all times relevant to this case. Furthermore, appellants spent considerable time and effort to improve and maintain the fence. They claim that those actions were sufficient to give notice to appellees of adverse ownership.
In addition to the fence, appellants reiterate that they exercised sufficient dominion and control over the property in question. As in Boyd, Mr. Emerson testified that he plowed the property, sowed grass seed, cut hay off of it, hunted on it, and spread fertilizer on the land. Given this diverse and consistent use of the property, appellants assert that the acts should have been sufficient to put appellees on notice of their claim of ownership of the property, just as in Boyd.
Under the principal concept of adverse possession, it is critical that a particular possession of property be hostile to the true owner. The doctrine of title by adverse possession rests upon the question of the owner’s acquiescence to the hostile acts and claims of the person in possession. Hence, possession, to be adverse, must be in hostility to, and not in subservience to, the rights of the true owner. Appellants note that the determination of whether the character of a possession is hostile “is determined by the occupant’s own views, actions and intentions and not those of his adversary.” Potlatch Corp. v. Hannegan, 266 Ark. 847, 849, 586 S.W.2d 256, 257 (1979). However, “it is not necessary that the possessor have a conscious feeling of ill will or enmity toward his neighbor” in order for the possession to be considered adverse or hostile. Vaughn v. Chandler, 237 Ark. 214, 216, 372 S.W.2d 213, 214 (1963).
IsAt trial, appellees argued that the possession was not adverse and hostile because no one knew or cared where the true line was prior to the survey. Appellees reiterate that the question before the circuit court was whether an old fence line that was dilapidated to the point of being on the ground at various points and being covered in vine, brier, and bramble was sufficient to put appellees and their successors in interest on notice of adverse possession. They point out that in Boyd, supra, this court did not overturn the trial court’s decision for misapplication of law but actually affirmed its findings of fact. The court noted in Boyd that a fact determination exists for the trial court to determine whether a fence is “visible enough” to impute knowledge to the parties of its existence and to establish adverse possession. Id.
The various photographs introduced by the parties depict the fence line at the time of or after the filing of the lawsuit at which point significant clearing and repairs of the fence had occurred. Even in this condition, the photographs depict a fence line intertwined and covered with vines, briers, bushes, and all kinds of bramble to the point that the fence was not even visible. Thus, the photographs of the fence line in its most optimal condition, having undergone subsequent repairs and clearing, still support the circuit court’s findings of fact. Furthermore, the evidence shows that the fence was located in a thick, overgrown tree line that was only partially visible from appellants’ side and invisible from appellees’ side of thicket.
Appellees urge that the circuit court reasonably determined that the state of the fence line located at the edge of the woods and covered with vine, brier, and bramble was not |insufficient to “fly the flag” over the land and put the true owner on notice that this land was held under adverse possession. A key element in proving adverse possession is “an intent to hold against the true owner.” See Ford v. Howard, 2009 Ark. App. 196, 300 S.W.3d 505. If the original use and possession of the land is permissive, it cannot become adverse for purposes of adverse possession until notice of the hostility of the possessor’s holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a pre sumption of notice equivalent to actual notice. The evidence of adverse holding when the original entry is by permission must be “very clear.” Id.
Mrs. O’Neal’s testimony regarding the origins of the fence and the use of the land could be found to support both sides’ arguments. While she confirmed the length of time the fence had been standing and how it was utilized, she also indicated that there was a very close relationship with Mr. Hall, which supports the argument of the permissive placement of the fence and use of the property. We acknowledge that even though an occupancy is commenced with permission, it can become adverse and hostile where “notice of the hostility of the possessor’s holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a presumption of notice equivalent to actual notice.” Tolson v. Dunn, 48 Ark.App. 219, 893 S.W.2d 354 (1995). Additionally, this court has held that the presumption of permissive use erodes over time. In Hicks v. Flanagan, 30 ArkApp. 53, 782 S.W.2d 587 (1990), this court explained:
It is a rule of general application that where a grantor remains in possession there is a presumption that he does so in subordination to the grant and not in hostility to it._JjjThere is, however, an exception to the rule where the occupancy continues unexplained for an unreasonable length of time. Under those circumstances the presumption is gradually overcome by the lapse of time.
Id. at 57-58, 782 S.W.2d at 590. Appellants urge that any presumption of permissiveness is rebutted by this extensive and continuous use over two generations.
We disagree and hold that the circuit court properly assessed the credibility of the witnesses, specifically considered the testimony of Mrs. O’Neal, reviewed the photographs of the fence line, and determined that the elements of adverse possession had not been proven by a preponderance of the evidence. Because we hold that such finding was not clearly erroneous, we affirm.
Affirmed.
WYNNE and GLOVER, JJ., agree. | [
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KAREN R. BAKER, Justice.
| Appellant Baptist Health (“Baptist”) appeals from the Pulaski County Circuit Court’s order granting appellee Andre Hutson’s class-certification motion. This is the second interlocutory appeal. In the first appeal, we reversed the certification because the circuit court’s conclusion — that the requirements of commonality concerning issues of fact and law, predominance, and superiority were satisfied — was an insufficient analysis of class-action factors. See Baptist Health v. Haynes, 367 Ark. 382, 240 S.W.3d 576 (2006) (Baptist I). This court has jurisdiction pursuant to Ark. Sup.Ct. R. l-2(a)(7) (2010) because this is a subsequent appeal following an appeal previously decided by this court. Baptist argues on appeal that the circuit court abused its discretion by approving a class definition that impermissibly requires delving into the merits to identify the class members and by finding |2that Rule 23’s requirements of predominance and superiority had been satisfied. We affirm.
After remand in Baptist I, the complaint was voluntarily dismissed pursuant to Ark. R. Civ. P. 41(a). Upon refiling the class-action complaint, Hutson asserted that she underwent outpatient medical tests at Baptist on March 8, 2004, for which she had contracted to pay Baptist’s “regular rates and terms.” She alleged that she was billed an excessive amount, but she ultimately paid the charges. Baptist assessed her charges for five identified medical services (“IMS”) at rates found in the hospital’s master-charge catalog. She was billed pursuant to neither a governmental medical plan or program, nor a separate contract between Baptist and an insurance provider. Hutson argued that Baptist breached its contractual obligation to assess charges at no more than its regular rates and terms by assessing charges of class members at the master-charge-catalog rate and that a class action was the only feasible method to address the controversy as Baptist had breached its contractual obligation to more than one thousand patients for the IMS.
Baptist admitted that it provided medical services or goods to many patients who were not covered by a government plan or an insurance contract wherein prices for medical services had been negotiated. Baptist also admitted that it charges its patients for services or goods according to prices listed in its charge catalog or charge master. Baptist denied that it charged any of its patients an amount in excess of its regular rates and terms. Finally, Baptist asserted that the amount it accepts in satisfaction of a patient’s obligation to pay is subject to numerous factors, including negotiation of prices before or after the rendition of services, ^discounts, and charity care.
The circuit court conducted a hearing on the motion for class certification on July 6, 2010. By order dated July 26, 2010, the circuit court certified the class to include patients who were charged for one or more of the five IMS at the master-charge rates, who did not receive a discount from the master-charge-catalog rates under a government health program or a private insurance contract, and who either paid the charges or remain legally liable for payment. Baptist timely brings this appeal from the July 26, 2010 order.
I. Standard of Review
Class actions are governed by Rule 23 of the Arkansas Rules of Civil Proce dure, which provides that one or more members of a class may sue in a representative capacity only if the class is so numerous that joinder of all members is impracticable and there are questions of law or fact common to the class. Ark. R. Civ. P. 28(a). The claims or defenses of the representative parties must be typical of the claims or defenses of the class, and the representative parties and their counsel must fairly and adequately protect the interests of the class. Id. Am action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b). This court has held that the six requirements for class-action certification are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) ^predominance, and (6) superiority. See Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008).
The determination that the class-certification criteria have been satisfied is a matter within the broad discretion of the trial court, and this court will not reverse the trial court’s decision absent an abuse of that discretion. ChartOne, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008). In reviewing a class-certification order, this court focuses on the evidence in the record to determine whether it supports the trial court’s conclusion regarding certification. Id. Neither the trial court nor this court shall delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met. Id. In this regard, “ ‘a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action.’ ” Bryant, 374 Ark. at 42, 285 S.W.3d at 638 (quoting Carquest of Hot Springs, Inc. v. Gen. Parts, Inc., 367 Ark. 218, 223, 238 S.W.3d 916, 920 (2006)). We view the propriety of a class action as a procedural question. See id.
II. Class Definition
The circuit court defined the class as “[a]ll persons, from January 17, 2003, through the date of certification, who signed admissions forms with [Baptist] and were assessed, and either paid or remain legally liable for, charges for payment on the patient’s account for an [IMS] at the master charge catalog rate.” Baptist argues that the circuit court erred in defining the class to include persons who remain legally liable on their patient accounts as that definition requires the court to delve into the merits of the individual claims. Hutson | ¿responds that the circuit court will be able to determine class membership without resolving the ultimate issue in the case because all of the information can be found in the hospital records of the prospective class members.
We acknowledge at the outset that defining the class is not a specified prerequisite to class certification under Rule 23. In order for a class action to be certified, a class must exist. Ferguson v. Kroger Co., 343 Ark. 627, 632, 37 S.W.3d 590, 593 (2001) (quoting 5 Jeremy C. Moore, Moore’s Federal Practice § 23.2(1) (Matthew Bender 3d ed.1997)). The class must first be susceptible to precise definition to ensure that the class is neither “amorphous,” nor “imprecise.” Id. Concurrently, the class representatives must be members of that class. Id. Before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the pro posed class. Id. Furthermore, for a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria. Id. Clearly defining the class ensures that those people who are actually harmed by a defendant’s wrongful conduct will participate in the relief ultimately awarded. Ferguson, supra.
We find persuasive the underlying class-definition rationale in Farmers Insurance Co. v. Snowden, 366 Ark. 138, 233 S.W.3d 664 (2006). There, insureds sued an automobile insurer to recover for the diminution in value of their repaired vehicles. Farmers asserted that the identity of the class members could not be determined absent impermissibly inquiring | finto the facts of each individual case. Disagreeing, we noted “that in order to determine if an individual fits into the class, the court only has to ensure that the claimant had a specific coverage with Farmers, made a certain type of damage claim to their insured vehicle, received payment within a certain time frame, and did not receive payment for diminished value.” Id. at 147-48, 233 S.W.3d at 670. We acknowledged that to determine diminution in value required analyzing fifteen factors, many of which were not in the claim files of the insureds. Id. at 150, 233 S.W.3d at 672.
Here, the circuit court found that the class description was definite and administratively feasible for determining whether a particular person was a member. The court stated that identifying a potential class member required determining the date of admission, receipt of one or more IMS, assessment of charges at the master-charge rate, and payment or legal liability for the charges. Identification of a class member may require determining whether the person is legally responsible for the charges for services or goods received from Baptist; however, that does not require delving into the individual merits of each claim. Legal responsibility for the charges is but one factor to consider, and based upon the evidence presented to the circuit court, Baptist’s records contain much of the information needed to analyze this issue. We find no abuse of discretion in the circuit court’s approval of the definition.
III. Predominance
17Baptist argues that Hutson’s breach-of-contract claim does not satisfy Rule 23’s requirement of predominance because Hutson argues that regular rates in the admission agreement do not refer to master-charge-catalog rates; rather, they refer to some combination of the discounted prices accepted under either government contracts or private contracts. Baptist asserts that to ascertain whether it charged more than its regular rates, the trier of fact must fix the regular rate for each of the five IMS during the class period and that many variables are involved in attempting to fix rates by drawing upon the prices accepted by Baptist to satisfy the accounts of nonclass members; therefore, fixing the appropriate rate for each class member is more individual than common and does not avoid a multiplicity of suits.
Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Ark. R. Civ. P. 23(b). In Johnson’s Sales Co. v. Harris, 370 Ark. 387, 260 S.W.3d 273 (2007), this court reiterated that the starting point in examining the predominance issue is whether a common wrong has been alleged against the defendant. If a case involves preliminary, common issues of liability and wrongdoing that affect all class members, the predominance requirement of Rule 23 is satisfied, even if the circuit court must subsequently determine individual damage issues in bifurcated proceedings. Id. Moreover, this court has recognized that a bifurcated process of certifying a class to resolve preliminary, common issues and then decertifying the class to resolve individual issues, such as damages, is consistent with Rule 23. Id. If, however, the preliminary issues are individualized, then the predominance requirement is not satisfied. United Am. Ins. Co. v. Smith, 2010 Ark. 468, 371 S.W.3d 685.
We have never addressed what constitutes a regular rate regarding hospital charges; however, our analysis in Campbell v. Asbury Automotive, Inc., 2011 Ark. 157, 381 S.W.3d 21, is helpful in determining the issue of predominance. In Campbell, the plaintiffs alleged that Asbury charged an illegal document-preparation fee for preparing installment contracts for the purchase of a vehicle. We held that the predominating questions were whether Asbury’s dealerships engaged in a practice whereby buyers were approved at one rate of interest, but given another, higher rate of interest, for which the dealerships received an incentive, and whether those facts were concealed from the buyers. We concluded that the individual issues, such as the various lending entities and their respective incentive agreements, did not defeat the common questions.
Here, the circuit court found that the common questions of law and fact predominated over any individual questions. The court said that the focal point of Hutson’s case was the master-charge rate assessed a potential class member for each of the IMS in Baptist’s form contract. The common issue is a threshold one and will result in either a |9dismissal or a basis for determining damages. The court concluded that the case can efficiently resolve the interpretation of'the regular rate for each of the IMS. Like in Campbell, the individual issues here, applying the various factors to determine the prices accepted by Baptist to satisfy the patient accounts of non-class members, do not defeat the common question. We find no abuse of discretion in the circuit court’s finding that the requirement of predominance is satisfied.
IV. Superiority
Baptist argues that certifying this class will not avoid a multiplicity of lawsuits because Hutson challenges only five of the possible 88,000 items for which there are charges listed in the master-charge catalog; therefore, 87,995 items will not be resolved by the present case. Hutson responds that because this will be the first case in the state to interpret what regular rate means, such determination impacts not only the five IMS in this case, but all 88,000 items in the master-charge catalog as well.
Rule 23(b) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Ark. R. Civ. P. 23(b). The superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. Johnson’s Sales Co. v. Harris, 370 Ark. 387, 260 S.W.3d 273 (2007). Where a cohesive and manageable class exists, real efficiency occurs when common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues. Id. When a trial court is determining whether class-action status is 110the superi- or method for adjudication of a matter, it may be necessary for the trial court to evaluate the manageability of the class. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). Furthermore, the avoidance of multiple suits lies at the heart of any class action. Id.
We addressed the impact of excluded persons or claims on class certification in Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008), which involved evacuees from an area affected by explosions and fires at a hazardous-waste facility. There, we said that certification was not defeated simply because the defined class did not include some of the persons who were injured by the defendant’s conduct. We noted that those persons could pursue their own claims or be part of another class action.
Here, the circuit court found that a class action was the superior method for proceeding because the only alternative method to adjudicate the claims of the class would be through numerous separate trials, with the potential for different and inconsistent results. The circuit court stated that in this situation, certifying the class would provide a substantial benefit from the standpoint of efficiency and judicial economy. Additionally, the circuit court found that the claims typical of the class are generally too small to pursue individually, so that if they cannot sue as a class, it is likely that the claims will never be heard. That only five IMS are included in this class and that there may be numerous other persons or claims remaining was considered by the circuit court and rejected as a basis to defeat superiority. We have noted that the question of superiority is very much related to the broad discretion conferred lnon a circuit court. First-Plus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008). We find no abuse of discretion in the circuit court’s determination that the requirement of superiority is satisfied.
Affirmed.
. Hutson was one of the three plaintiffs in Baptist I.
. Baptist cites us to several cases from other jurisdictions: Eufaula Hosp. Corp. v. Lawrence, 32 So.3d 30 (Ala.2009); Maldonado v. Ochsner Clinic Found., 493 F.3d 521 (5th Cir.2007); Colomar v. Mercy Hosp., Inc., 242 F.R.D. 671 (S.D.Fla.2007); and Ahmad v. Yale-New Haven Hosp., Inc., 104 Conn.App. 380, 933 A.2d 1208 (2007). Decisions from other states and federal circuit courts are not binding on this court. Asbuiy Auto. Grp., Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006) (another state's decision is not binding authority on this court); Danner v. MBNA Am. Bank, N.A., 369 Ark. 435, 255 S.W.3d 863 (2007) (a federal circuit court's decision is not binding authority on this court). | [
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DAVID M. GLOVER, Judge.
|! Appellant Holly McClaran appeals from the trial court’s April 27, 2010 order, which granted a permanent injunction against her. The injunction involved an easement that was established in a May 12, 2008 judgment by Judge Philip Smith. The appellees in this case are Amos and Moon-Ja Traw, Tony and Selena Lowe, and David and Kathy Woodward, all of whom own property in the area and rely upon the easement to access their property, and, with the addition of the Wood-wards, who did not own their affected property at that time, are the same parties to the May 12, 2008 judgment. Ms. McClaran contends that the trial |2court erred in issuing its permanent injunction against her because the order was “contrary to the evidence” and “violated the doctrine of res judicata.” We reverse.
The judgment establishing the prescriptive easement provided in pertinent part:
On January 22, 2008, the above styled cause of action was submitted to the Court on the complaint of the Plaintiffs requesting the Court to declare that they had acquired a prescriptive easement over a roadway commonly known as “Traw Lane” and that the Defendants be enjoined from interfering with the rights of the Plaintiffs and the public in general in their use of said roadway.
The Court is well and sufficiently advised as to the premises, and upon consideration of the facts, pleadings and other matters finds as follows:
(3) The roadway known as “Traw Lane” transverses the section line between Sections 21 and 16 running East and West from a county road known as Pleasant Run Road to the Northwest corner of East Half of the Northeast Quarter of Section 21, Township 21 North, Range 4 West, where it continues on to the Plaintiffs’ lands.
(4) The Court finds that in a previous lawsuit involving the Plaintiffs herein, an easement was granted other [sic] the portion of the roadway leaving the Northwest corner running west to Neal and Cynthia Rogers. Neal and Cynthia Rogers v. Amos and Moon-Ja Traw, Sharp County Circuit Court No. CV-2000-227.
(5) From Mr. Traw’s testimony he claims a reservation of that roadway by the estate of his father, but from the abstract the Court does not find any specific reservation and then in the later deeds to that property and the surrounding property and doesn’t see that there had ever been any reservation of ownership of that roadway.
(6) The Court finds that the actual ownership of the roadbed, the property where the road is, is actually contained within the deeds of Mrs. McClaran because she purchased that whole East Half of the quarter sections that are on both sides of that road, north and south, so it looks like from the drawing that’s been introduced into evidence the roadway is probably contained in her deed to the East Half of the Northeast Quarter of Section 21.
(7) The Court finds that the Plaintiffs have used the roadway know as “Traw Lane” as their only means of ingress and egress to their property for a period of time |,⅞⅛ excess of seven years, and by reason of such use of the roadway the Plaintiffs and the public have acquired a prescriptive easement.
(8) The Court finds that it is clear that this road has been used for many years as a means to get into Mr. Traw’s property; in fact, the Traws owned it at one time until the property was sold off after his father’s death, and so it’s clear that there has been an easement established for use of that roadway in and our [sic] by Mr. Traw and Mrs. Traw and obviously to their heirs and assigns in ownership of the property. And the Court is going to declare that there is an easement by prescription to that roadway and that the roadway is an easement that is twenty feet in width. The Court understands that two fence lines are somewhat farther apart than that, but the Court is finding from the evidence and from the photographs here that the actual roadway does not go right up to the fence line. The reason the Court is limiting this to twenty feet is that there was no testimony that there’s any particular need for more than that. The Court finds that twenty feet is enough room for two vehicles to pass if they are careful, unless one of them is a big vehicle obviously, in which case one is going to have to pull over. The Court is specifically doing this in order to solve this problem that was seen in the photographs of some ditches that are being dug right back up against the fence posts and are eating into the bases of these fence posts and compromising the fences.
(9) The Court finds that the Plaintiffs have a right to maintain the roadway in and out, and, if it needs fixing they can fix it so you can get in and out and do whatever you want to as far as maintaining the roadway. However, don’t get into her fence lines and fence posts. The Defendant should be able to maintain her fences without having to go back out there and fill in ditches.
IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED, that the roadway known as “Traw Lane” has become a public way by the continuous, prescriptive use by the Plaintiffs and others; that the Plaintiffs and, the public are granted a prescriptive easement to said roadway which will be twenty (20) feet in width; and that the above findings by the Court are hereby ordered effective immediately-
(Emphasis added.)
Thus, the judgment established a prescriptive easement for the plaintiffs (the Lowes and the Traws) and the public. And it could not have been more clear in setting the limits of the easement: it was to be twenty feet in width, it did not extend the full width between the |4fences, and the right to maintain was limited to the “roadway.” There was no appeal from the judgment.
About a year and a half after the entry of the judgment, the Traws, the Lowes, and the Woodwards filed the motion for temporary and permanent injunction. In their motion, they acknowledged that the May 12, 2008 judgment “granted Plaintiffs a prescriptive easement for ingress and egress to ‘Traw Lane’ twenty (20) feet in width,” but sought to enjoin McClaran from .“keeping the present fence lines, from filling in the ditches, removing rock walls and from interfering with Plaintiffs’ right to maintain their easement to ‘Traw Lane.’ ” They also asserted that McClaran had “caused the fence lines which have defined the boundary between defendant’s property and ‘Traw Lane’ for more than forty-five (45) years to be moved inward causing a narrowing of ‘Traw Lane’ making it impossible for school buses that must traverse ‘Traw Lane’ to proceed safely.” Additionally, they claimed that other vehicles cannot pass safely without sustaining damage caused by the barb wire fencing now in place. Finally, they alleged that McClaran’s actions of filling in ditches and removing rock walls were causing erosion to “Traw Lane,” and if not abated, would permanently damage it.
Following a hearing concerning their request for permanent injunctive relief against McClaran, Judge Kevin King en tered the April 27, 2010 order, which provided in pertinent part:
4. That the Court interprets the pri- or order of Judge Smith to allow the Plaintiffs to use the roadway from the fence, as one is looking down Traw Lane, the fence on the right will continue to remain in its present location. The fence on the left will be moved back to the old location; an area of almost thirty feet to make improvements, either through the county_^or by themselves; the only restriction being that it cannot interfere with Defendant’s land;
6. Plaintiffs are to remain within that area between where the old fence was on the right, and the new fence is going to be moved back to the location of the old fence;
10. The Plaintiffs have the right to maintain the entirety of the ground between the two fence lines; that may be putting ditches in there as long as the ditches don’t bother the road, or bother Defendant’s land, and does not divert the water over on her land. The gates have to be within the fence line, they cannot protrude out into the roadwayf.]
(Emphasis added.) Although the trial court declared that it was merely interpreting the original judgment, its April 27, 2010 order goes beyond interpretation. It substantially changes the nature of the original easement. Consider, for instance, the May 12, 2008 judgment clearly defined the easement as being twenty-feet wide and as not extending the full width between the fences. Moreover, it limited maintenance to the roadway itself, which was particularly described as being twenty-feet wide. However, the April 27, 2010 order extends the “roadway,” i.e., the easement, to thirty feet — from fence to fence. If the Traws and Lowes did not agree with the May 12, 2008 judgment, they could have appealed. They did not.
The doctrine of res judicata has two aspects: claim preclusion and issue preclusion. Bisbee v. Decatur State Bank, 2010 Ark. App. 459, 376 S.W.3d 505. The purpose of the doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Id.
|fiThe issue-preclusion, or collateral-estoppel, aspect of res judicata is applicable to this case. It bars the relitigation of issues of law or fact previously litigated, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question and that the issue was essential to the judgment. Id. To apply collateral estoppel, the following elements must be present: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Id. Issue preclusion may be asserted by a stranger to the first judgment, but the party against whom it is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in that first proceeding. Id. The doctrine of res judicata applies to both the actual parties to a previous lawsuit and those in privity with them. Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000). We have explained that privity of parties within the meaning of res judicata means a person so identified with another that he represents the same legal right. Id. We have never required strict privity in the application of res judicata, but instead have supported the idea that there must be a substantial identity of parties to apply the doctrine. Id. A successor in interest in land is in privity with its grantor such that a prior ruling against the grantor is binding against the successor. Id.
Here, (1) the issue sought to be precluded in the second case involved the nature and extent of the prescriptive easement that had been granted in the original judgment, including the easement’s maintenance. Indeed, the second trial judge characterized his mission as ^interpreting the original judgment. Clearly, the issue in the second case was the same as that involved in the prior litigation; (2) the nature and extent of the prescriptive easement was actually litigated in the first case, as demonstrated by the lengthy quote from the original judgment set forth previously in this opinion; (3) the issue was determined by a valid and final judgment; and (4) the determination of the nature and extent of the prescriptive easement was essential to the original judgment. The doctrine of res judicata, in particular, issue preclusion, was asserted by McClaran against the Traws, the Lowes, and the Woodwards. The Traws and the Lowes were unquestionably parties to the original action, and they had a full and fair opportunity to litigate the issue in that first proceeding. Moreover, even though the Woodwards were not actual parties to the original action, they are both a successor in interest and members of the public to whom the original easement was granted.
Appellees, in countering appellant’s res judicata argument, contend: “Here, the appellant urges the affirmative defense of res judicata ... as one of two grounds for attacking the ruling of the trial court. The failure of the appellant to raise the issue of res judicata to the trial court prior to its ruling, or in a timely filed posttrial motion, should serve as a waiver upon appeal. The court has repeatedly held that something more than a mere assertion of an argument in the pleadings is required to preserve an issue for appellate review.” We have concluded that appellant did more than make a “mere assertion” of her res judicata argument. | aWhile it was not argued in the most efficient of manners, it would be incorrect to decide that it was waived. Appellant raised the doctrine of res judicata as an affirmative defense in her answer to the motion for injunctive relief. If that was all that she had done, appellees’ argument might prevail. But appellant did more. Throughout the presentation of evidence, the prior order and what it provided was before Judge King. Again, the trial court characterized its task as interpreting the earlier judgment. Appellant asserted “res judicata” as the basis for at least two objections — which were sustained by the trial court — contending that the issues had already been decided in the earlier opinion and should not be delved into again. We are not convinced that the argument was waived by the manner in which appellant asserted it. Having concluded that the doctrine of res judicata was not waived and that it applies to this case, we reverse the April 27, 2010 order.
Reversed.
ABRAMSON and HOOFMAN, JJ., agree.
. At the hearing before Judge King, Kathy Woodward testified that she and her husband purchased their property from Mr. and Mrs. Larry Flynn, who purchased it from Mr. and Mrs. Neil Rogers. See paragraph 4 of the May 12, 2008 judgment quoted previously in the body of this opinion. | [
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DONALD L. CORBIN, Justice.
|,Appellant Kojleb Kesai appeals the orders of the Washington County Circuit Court entered August 24 and 25, 2010, assessing certain costs associated with a trial in which Appellant took a voluntary dismissal pursuant to Rule 41 of the Arkansas Rules of Civil Procedure. Jurisdiction of this appeal is properly in this court pursuant to Arkansas Supreme Court Rule 1 — 2(b)(6) (2010), as an appeal requiring our interpretation of a court rule, specifically Rule 41(d). We conclude that the circuit court erred in awarding costs prematurely, and reverse and dismiss without prejudice.
The record in this case reveals the following course of events. Appellant filed a complaint for damages arising from an automobile accident. Approximately two years later, the case was set for a jury trial. Counsel for both sides announced to the circuit court they were ready for trial, and a Washington County jury was impaneled, selected, and sworn. The jury was then excused for lunch while counsel discussed with the circuit court their motions | ¿regarding evidentiary matters. The circuit court then reconvened after the lunch recess, and outside of the presence of the jury, Appellant’s counsel, Mr. Ken Swindle, stated, “[pjursuant to Rule 41, of the Arkansas Rules of Civil Procedure ... Plaintiff moves to use his first voluntary dismissal in this case.” In response, the circuit court stated, “I am going to tell you that if you choose to nonsuit the case, I am going to charge you for the cost of the jury and for the interpreter and for [opposing counsel’s] legal fees, if she applies for them.”
Counsel and the circuit court then discussed various expenses and fees that had been incurred thus far, and Appellant’s counsel stated, “whatever is taxable, under Rule 41. I understand that when the action is refiled that has to be taken care of before the case moves forward. I understand that.” (Emphasis added.) The circuit court then replied, “regardless of whether you bring this again, I am going to charge you for the cost of the jury.”
After further discussion concerning the per diem payment to the jurors and the expense of the jury’s lunch, the circuit court stated to Appellant’s counsel, “I am going to charge you for everything that’s taxable under that rule.” Appellant’s counsel then asked, “[A]re you charging the Plaintiff or charging me, Ken Swindle?” The circuit court then answered, “[Technically, I suppose it goes to your client. Although, that hardly seems fair, but he’s your client.”
The same day that Appellant took his nonsuit, on August 24, 2010, the circuit court entered an order assessing against Appellant the costs for the interpreter and for the jury’s attendance and lunch in the amounts of $500, $1,359.80, and $214.13 respectively. The ^following day, the circuit court entered an amended order substituting Appellant’s counsel, Mr. Swindle, as the person who was assessed the costs and ordered to pay. A few days later, the circuit court entered an order granting the voluntary dismissal without prejudice. Then, on September 2, 2010, the circuit court entered an order granting Appellant’s request to stay the payment of costs pending appeal, and clarifying that the August 24, 2010 order assessing costs against Appellant was nullified by the August 25, 2010 order assessing costs against Appellant’s counsel, Mr. Swindle.
This appeal followed. For reversal, Appellant first contends that the circuit court erred in assessing costs prior to the refiling of the case. Appellant further contends that the costs assessed by the circuit court were outside those provided for in Rule 54(d)(2) of the Arkansas Rules of Civil Procedure. No response brief has been filed in this court.
Generally speaking, an award of costs is within the sound discretion of the circuit court. Pope v. Overton, 2011 Ark. 11, 376 S.W.3d 400. However, when this court must construe a court rule, the appellate review is de novo. Id. When we construe a court rule, we use the same means and canons of construction that we use to interpret statutes. Id. The first rule in considering the meaning and effect of a statute or rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language; when the | language is plain and unambiguous, there is no need to resort to rules of statutory construction. Nat’l Front Page, LLC v. State ex rel. Pryor, 350 Ark. 286, 86 S.W.3d 848 (2002).
Turning now to the court rule at issue in the present case, we note that Rule 41(d) provides as follows:
(d) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action, or who has suffered an involuntary dismissal in any court, commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. For purposes of this rule, the term “costs” means those items taxable as costs under Rule 54(d)(2).
Ark. R. Civ. P. 41(d) (2010). Appellant argues that Rule 41 provides that no costs can be assessed until there has been a refiling of the same suit. Stated another way, Appellant argues that the rule limits a court’s ability to assess costs to situations where there has been a refiling, and in such a situation it is only the court in which the second action has be refiled that has the ability to assess the costs.
This court was previously called upon to interpret Rule 41(d) in Transit Homes, Inc. v. Bellamy, 287 Ark. 487, 701 S.W.2d 126 (1985), a case where there had been a nonsuit in state court and then a refiling of the same suit in federal court. When interpreting the language of Rule 41(d), this court stated the following:
This language makes clear that “the court” is that court in which the second action has been filed and it is that court which “may make such order for the payment of costs of the action previously dismissed ... and ... may stay the proceedings.”
The court in the first action has no authority under Rule 41(d), once the second action is filed, to do anything in respect to ordering the payment of costs or to IfiStay proceedings in the second action. It no longer has jurisdiction. Only the court in which the second action is pending, here the federal court, has jurisdiction to make such orders.
Id. at 489, 701 S.W.2d at 127.
Based upon our interpretation of Rule 41(d) in Transit Homes, we agree with Appellant that the timing of the circuit court’s assessment of costs in the present case was premature and therefore in error. The language of Rule 41(d) is clear that “[i]f a plaintiff ... commences an action based upon or including the same claim against the same defendant, the court may ... order ... the payment of costs of the action previously dismissed as it may deem proper.” Thus, according to the plain language of Rule 41(d), the refiling of the same suit or the “commence[ment] ... [of] the same claim against the same defendant” is a condition precedent to a court’s authority to order the payment of costs associated with the “the action previously dismissed.” Our conclusion in this regard is consistent with our conclusion in Transit Homes that it is the court in which the second action is pending that has the authority to order the payment of costs of the action previously dismissed.
The circuit court in the present case ordered the payment of costs on the same day the first nonsuit was entered. There had been no showing that Appellant had commenced the same claim against the same defendant. The circuit court therefore erred in ordering the payment of costs prior to the refiling of the suit. Accordingly, we reverse and dismiss without prejudice the order assessing costs to Appellant’s attorney.
|fiBecause there has been no showing that Appellant has refiled his case, there is no court with authority to assess any costs associated with the nonsuit, and we need not address Appellant’s further contention that the circuit court erred in awarding costs outside those provided for in Rule 54(d)(2). See Transit Homes, 287 Ark. 487, 701 S.W.2d 126.
Reversed and dismissed without prejudice.
HENRY, J., dissents.
. Appellant’s counsel, Ken Swindle, has a pecuniary interest in the order assessing costs against him personally. He therefore has standing to appeal as a nonparty. See Swindle v. Benton County Circuit Court, 363 Ark. 118, 211 S.W.3d 522 (2005), cited with approval in Aikens v. State, 368 Ark. 641, 249 S.W.3d 788 (2007). | [
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WAYMOND M. BROWN, Judge.
| ¶ This criminal case stems from transactions between the appellant, Zafar Iqbal, and Magness Oil Company, a wholesale and retail distributor of petroleum products. Iqbal was charged with and convicted of theft of property and sentenced to two years’ imprisonment followed by three years’ suspended imposition of sentence. Iqbal seeks reversal of the conviction, arguing that the criminal proceeding was merely an attempt to collect a debt. He further alleges that he was denied his constitutional rights to counsel and to due process when documents prepared and signed by his attorney were used against him. We hold that the State presented sufficient evidence to establish that Iqbal obtained fuel by deceiving Magness Oil into believing that he has interests in certain property. We also hold that Iqbal failed to show that the State created a conflict of interest between him and his trial attorney. Therefore, we affirm.
| ^Background
We recount the evidence in the view most favorable to the State. Iqbal’s wife, Betty Jane, is the sole owner of Chuck Wagon, Inc. d/b/a One Stop, a convenience store and gas station. Iqbal has no interest in the business, but he works as a manager. In March 2007, he started purchasing fuel from Magness Oil. The purchases were initially on a cash basis, but later that month, Iqbal filled out a “Credit Application/Consignment Application.” He listed Betty Jane as owner of the gas station, and he listed himself as the manager and the person to contact for further information. He stated that the store had been in business for six months, and he denied ever filing for bankruptcy. At trial, Magness Oil’s president, Benny Magness, explained that the question regarding bankruptcy was important because he did not want to do business with anyone who had filed for bankruptcy. The bottom of the form has the handwritten notation, “Approved — Consignment Fuel Account— Settlement 10 days from delivery. JM.” The initials “JM” refer to Jeffrey Magness, Magness Oil’s vice president and Benny’s son. Payment was made by automatic draft.
In November 2007, three automatic drafts were returned for insufficient funds. Jeffrey attempted to contact Iqbal, but to no avail. He went to Iqbal’s residence to look for him and was finally able to make contact. Jeffrey kept in contact with Benny via cell phone, and Benny ^instructed Jeffrey to sign a handwritten contract. Jeffrey explained that Iqbal represented himself to be the owner in any and all conversations. While at Iqbal’s home, Jeffrey drafted a “gas supply agreement” by hand. In the agreement, Iqbal is listed as the station owner. The agreement provided, in relevant part, “For security of gasoline station owner agrees to provide Magness Oil Company titles to two vehicles owned by station owner, 2nd mortgage of owner personal house, and assign proceeds of debt of three customer charge accounts.” Despite this agreement, Magness Oil never received the vehicle titles, the mortgage, or the assignment of proceeds. As it turned out, Iqbal did not own any vehicles or a house (the house in which he lived was in Betty Jane’s name).
On November 20, 2007, Iqbal traveled to Mountain Home and signed a normal consignment fuel-supply contract with Magness Oil. At trial, Benny explained that he was going to enter into a contract with Iqbal or turn the returned drafts to the hot-check office. The contract listed Iqbal as the owner of the One Stop, and Benny testified that Iqbal told him that he owned the One Stop with his wife Betty Jane.
At trial, Benny presented five unpaid invoices for fuel deliveries in March 2008, totaling $104,540.81 (there was testimony questioning whether this amount was actually paid in full, but for the purposes of this appeal, we assume that it was not). On March 29, he called Iqbal and told him that he owed money on the account. Iqbal wanted another delivery of gas, but he told Benny that he could not pay for the previous invoice. Benny threatened to file a complaint with the sheriffs office and the prosecuting attorney if Iqbal did not pay.
|4On March 31, 2008, Benny received a letter from Iqbal’s attorney, indicating that Iqbal had filed for Chapter 7 bankruptcy in August 2007 and that Iqbal had started taking delivery from another fuel provider. This was the first time Benny learned that Iqbal had filed bankruptcy. Other docu ments entered into evidence show that Iqbal filed for Chapter IB bankruptcy in August 2007 (it was converted to a Chapter 7 filing in January 2008). An amended filing shows Magness Oil as a creditor to the tune of $104,000.
During the bankruptcy proceedings, Benny learned that Iqbal did not own any real property or vehicles. He also learned that Iqbal did not own an interest in the One Stop. Benny testified that, had he known that Iqbal was merely an employee of the One Stop, he would not have done business with him. He also stated that he relied on the handwritten contract as proof that he was the owner. A few weeks after receiving the letter from Iqbal’s attorney, Benny filed a criminal complaint with the sheriffs office, who forwarded the matter to the prosecuting attorney. Iqbal was then charged with theft of property.
Betty Jane filed for Chapter 13 bankruptcy in October 2008. She filed a statement of financial affairs in bankruptcy court in December 2008. This statement listed her as 51% owner of the gas station and Iqbal as 49% owner. Regarding the statement of her current income, the filing listed Betty Jane as “manager” of the One Stop and Iqbal as the “eo manager.” She testified, however, that the filing was a mistake and that she owned 100% of the business. She could not explain why the filing had Iqbal as 49% owner. Also entered into evidence was a brief in support of a motion to dismiss, filed by Iqbal’s attorney. In the brief | Jtself, there are several references to “Zafar Iqbal d/b/a Chuck Wagon, Inc./One Stop.” There is a similar reference in an affidavit attached as an exhibit.
The court also heard testimony from Roger Mason and John Grisham, both of whom also deliver fuel to retail stores. Both sold gas to Iqbal, who represented himself to be the owner of the One Stop. Another distributor, Milton Satterfield, also testified that he delivered fuel to the One Stop and did business with Iqbal, not Betty Jane. In cross-examination, however, he stated that Betty Jane signed the authorization form for electronic drafts.
At the end of the State’s case, Iqbal moved for directed verdict. He argued that the proceeding was strictly an attempt to collect a debt, which was inappropriate for a criminal proceeding. The court denied his motion. The jury found Iqbal guilty of one count of theft of property, and he was sentenced to two years’ imprisonment, followed by three years’ suspended imposition of sentence. He was also ordered to pay $104,540.81 in restitution to Magness Oil.
Directed Verdict Motion
First, Iqbal argues that the circuit court should have granted his motion for directed verdict. As he did at trial, he asserts that the criminal proceeding against him was merely an attempt to collect a debt and that such procedure is not supported by the law.
When considering a challenge to the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the State, considering only the evidence in favor of the guilty verdict, and affirm if the conviction is supported by Insubstantial evidence. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. We make no distinction between circumstantial and direct evidence when review ing for sufficiency of the evidence. But for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence: The question of whether it does is for the trier of fact to decide.
To convict Iqbal of theft of property, the State had to prove that he knowingly obtained the property of another person, by deception or by threat, with the purpose of depriving the owner of that property. The definition of “deception” includes “[c]reating or reinforcing a false impression, including a false impression of fact, law, value, or intention or other state of mind that the actor does not believe to be true”; “[flailing to correct a false impression that the actor knows to be false and that he or she created or reinforced or that he or she knows to be influencing another person to whom the actor stands in a fiduciary or 17confidential relationship”; and “[e]mploying any other scheme to defraud.” The act of deprivation includes making use of the property of another for purposes other than for what it was promised.
A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Because intent cannot be proven by direct evidence, the fact-finder is allowed to draw upon common knowledge and experience to infer it from the circumstances. Because of the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Further, the intention and design of the party are best explained by a complete view of every part of his conduct at the time, and not merely from the proof of a single and isolated act or declaration.
The crux of Iqbal’s argument is that the mere nonpayment of a debt cannot form the basis for a theft charge. He is correct in this regard. As to a person’s intention to perform a |spromise, a jury may not infer “deception” solely from the fact that the person did not subsequently perform the promise. The appellate courts have reversed several theft convictions when the record lacked evidence showing deception.
In Cates v. State, the appellant contracted with a couple to build a house, and an escrow account was set up to pay for the costs. When the appellant received a bill from a subcontractor, he would take it to the couple for approval, then the bank would disburse the money. The appellant withdrew from the project when the home was only 77% complete. By this time, he had withdrawn $28,500 from the escrow account, including $4000 for his own use. The jury convicted the appellant of theft, but we reversed. We wrote that the only evidence presented that could support the conclusion that the appellant did not intend to pay the liens was inferred solely from the fact that he did not subsequently pay off the liens.
In Wiley v. State, the appellant was charged with theft after he failed to pay for some lumber. The evidence showed that he contracted with a company to buy lumber and building materials on credit. He intended to build a house on property left to him by his grandfather. The appellant purchased a substantial amount of lumber and materials, but the company received no payment. The owner of the company went to the property and found no lumber or materials on the site, at which point he concluded that he had been given false information | 9and contacted the prosecuting attorney. The appellant testified that he had intended to build a house but did not do so due to personal and financial difficulties. There was confusion as to whether the appellant was charged with theft by deception or by taking unauthorized control of property, but in either case, we held this evidence to be insubstantial proof to support the conviction.
And in Cox-Hilstrom v. State, the appellant leased a business from another person, but he vacated the premises five months later. He was charged with and convicted of theft by deception for maintaining an account under the lessor’s account number at a local newspaper. The court denied the appellant’s motion for directed verdict, reasoning that the appellant would have requested a new account number after taking over the business had he not intended to deceive. We could find no evidence that the appellant made a false statement to the newspaper, and we saw that the only evidence unfavorable to the appellant was that he failed to pay the account during the five-month period. We ultimately reversed the conviction.
In the aforementioned cases, there was no evidence upon which a jury could find that the appellant used deception to deprive the victims of their property. That being said, the appellate courts have affirmed convictions after the victim has come to realize that they had been deceived out of their money.
holn Dean v. State, the appellant was charged with the crime of false pretenses after he represented that he made money in the cattle business. He convinced the victim to invest his money in cattle. The victim became suspicious two months later, and conversations between the appellant and the victim’s attorney revealed that the appellant was not in the cattle business, that he had not purchased any cattle, and that he did not know what happened to the victim’s money. Our supreme court held that the State presented sufficient evidence to present the issue to a jury.
In Wilson v. State, the appellant made a deal to sell timber to a sawmill owner. The timber was to be cut from land that the appellant claimed to have either leased or purchased. After the owner paid for the timber, he learned that the appellant had no interest in the property where the timber was to come from. When the owner demanded return of his money, the appellant gave him two bad checks. Our supreme court held that this evidence was sufficient to support the charge.
Finally, the appellants in Williams v. State operated a store selling motorized scooters, four-wheelers, bicycles, and mini-choppers. Several of their customers complained after they purchased items but never received the items or a refund. The State charged the appellants with several counts of theft of property. We affirmed the subsequent conviction, noting that |nthe evidence showed a pattern of purposely delaying delivery of merchandise and offering mostly untrue excuses for why an item had not arrived.
Returning to the case presently before us, the State presented testimony regarding the Iqbals’ bankruptcies and Benny Magness’s desire not to deal with customers who have filed bankruptcy. The record shows that Iqbal did not file for bankruptcy until after he started receiving product from Magness Oil, and we find nothing in the record suggesting that Iqbal affirmatively hid that status.
Nonetheless, we affirm Iqbal’s conviction because the State presented substantial evidence that he knowingly deceived Magness Oil in an effort to get fuel for the One Stop. Specifically, a jury could reasonably find that Iqbal represented himself to be the owner of the One Stop when in fact he was not, that he represented himself to own certain other property intended to be used as collateral when in fact he did not, and that he made these representations so that Magness Oil would continue to supply him fuel for the One Stop. This case is not like Cates, Wiley, and Cox-Hilstrom, where the court had nothing before it to explain the nonpayment of an obligation. Rather, we liken this case to Dean and Wilson, where the appellants made affirmations to induce their victims to give up their money.
In light of the evidence suggesting that Iqbal misrepresented what he owned to induce Magness Oil to give him fuel for his wife’s convenience store, we hold that the State presented sufficient evidence to support a conviction for theft of property. We affirm on this point.
_[¿2Right to Counsel and Due Process
Next, Iqbal asserts that he was denied his constitutional rights to counsel and due process when several documents prepared by his attorney were used against him. He acknowledges that he made no objection at trial, but he contends that the introduction of those documents created a massive conflict of interest and that such a claim is an exception to the contemporaneous-objection rule, as outlined in Wicks v. State.
At trial, the State presented three documents prepared by Iqbal’s attorney, who also served as his attorney during the bankruptcy proceedings. The first was a letter from counsel to Benny, notifying Benny that Iqbal had filed for bankruptcy. The second was a copy of Iqbal’s bankruptcy filing, which listed his trial counsel as his bankruptcy attorney. An amended version of the filing showed a $104,000 debt owed to Magness Oil. The third was a brief in support of a motion to dismiss in this case and an attached affidavit. In these documents, there are several references to “Zafar Iqbal d/b/a Chuck Wagon, Inc./One Stop.” Iqbal’s trial attorney did not object to the admissibility of any of these documents.
Normally, a contemporaneous objection is necessary to preserve a matter for appeal. But our supreme court has recognized four narrow exceptions to this rule: (1) when the trial court, in a death-penalty case, fails to bring to the jury’s attention a matter essential to its consideration of the death penalty itself, (2) a trial court errs at a time when defense counsel | ishas no knowledge of the error and hence no opportunity to object, (3) a trial court should intervene on its own motion to correct a serious error, and (4) the admission or exclusion of evidence affects a defendant’s substantial rights. Iqbal asserts that the admission of the documents against him falls under exceptions three and four.
We pass on the question of whether this case presents a scenario that would fall under an exception under Wicks. Assuming (but not deciding) that it does, Iqbal failed to show that the introduction of the documents in question created a conflict of interest between him and his trial attorney. The letter from Iqbal’s attorney to Benny was introduced only to show the date that Benny learned of Iqbal’s bankruptcy filing. The bankruptcy filings were obtained by Benny’s attorney. Nowhere does Iqbal raise the issue of the accuracy or the propriety of these documents. And while Iqbal could not reasonably argue for the exclusion of his affidavit, we see nothing in the rest of the pleading that contains anything that was not presented to the jury at trial.
Iqbal’s entire argument is premised upon his assumption that the introduction of those documents was the equivalent of forcing his attorney to be a witness against his client. No such thing happened here. We agree that a lawyer is prohibited from mixing the role of 114advocate and witness. A defendant who can show that there existed a conflict of interest that affected the adequacy of his attorney’s representation need not demonstrate prejudice in order to obtain relief But this presumption does not arise until the defendant shows an actual conflict; the possibility of a conflict is insufficient to impugn a criminal conviction. The admission of the documents in question did not pit Iqbal against his attorney or vice versa. And the documents are consistent with other evidence introduced at trial.
In short, we hold that Iqbal failed to show that a conflict of interest arose as a result of the court allowing the State to introduce documents produced by his trial attorney in this case. We affirm on this point as well.
Affirmed.
HART and WYNNE, JJ., agree.
. See, e.g., Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004); DeShazer v. State, 94 Ark. App. 363, 230 S.W.3d 285 (2006) (both noting that, in reviewing the sufficiency of the evidence to support a criminal conviction, appellate courts view the evidence in the light most favorable to the State, considering only the evidence that supports the guilty verdict).
. Mitchem v. State, 96 Ark.App. 78, 238 S.W.3d 623 (2006).
. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003).
. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998).
. Id.
. Phillips v. State, 88 Ark.App. 17, 194 S.W.3d 222 (2004).
. Ark.Code Ann. § 5-36-103(a)(2) (Supp. 2009).
. Ark.Code Ann. § 5-36-101(3)(A)(i), (iii), (v) (Repl.2006).
. See Hardcastle v. State, 25 Ark.App. 157, 755 S.W.2d 228 (1988); Hixson v. State, 266 Ark. 778, 587 S.W.2d 70 (Ark.App.1979).
. Gikonyo v. State, 102 Ark.App. 223, 283 S.W.3d 631 (2008).
. Id.
. Id.
. Kerby v. State, 233 Ark. 8, 342 S.W.2d 412 (1961) (quoting Baker v. State, 4 Ark. 56 (1842)).
. Ark.Code Ann. § 5-36-101(3)(B).
. 267 Ark. 726, 589 S.W.2d 598 (Ark.App. 1979).
. 268 Ark. 552, 594 S.W.2d 57 (Ark.App. 1980).
. 58 Ark.App. 109, 948 S.W.2d 409 (1997).
. 258 Ark. 32, 522 S.W.2d 421 (1975).
. 277 Ark. 43, 639 S.W.2d 45 (1982).
. 2009 Ark. App. 848, 2009 WL 4851104.
. 270 Ark. 781, 606 S.W.2d 366 (1980).
. Id.
. Id.
. The State cites Rackley v. State, 371 Ark. 438, 267 S.W.3d 578 (2007), and Cook v. State, 76 Ark.App. 447, 68 S.W.3d 308 (2002), in support of its position that the Wicks exception is inapplicable here. In both cases, the appellate court declined to extend Wicks to claims of ineffective assistance of counsel where an attorney represents co-defendants. We believe the present case is distinguishable and decline to apply those cases here.
. See Ark. R. Prof! Conduct 3.7 (stating that lawyer shall not act as advocate at a trial in which he or she is likely to be a necessary witness except under narrowly defined circumstances); Smith v. Wharton, 349 Ark. 351, 78 S.W.3d 79 (2002) (citing several cases for the proposition that attorneys should not act as trial counsel and as a material witness).
. Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005) (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).
. Id. | [
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DOUG MARTIN, Judge.
| Appellant David Grothaus brings this appeal from a decision of the Workers’ Compensation Commission denying his claim for benefits. Grothaus was employed as a teacher by appellee Vista Health, L.L.C., a psychiatric facility for adolescents. On September 29, 2008, he was injured when a student attacked him in a classroom. Grothaus filed a claim for workers’ compensation benefits, and his employer initially accepted his injuries as compensable. Subsequently, however, Vista Health controverted his claim, and Grothaus sought a hearing before an administrative law judge . (ALJ). The ALJ found that Grothaus failed to meet his burden of proving that he suffered a com-pensable injury to his spine. In a two-to-one decision, the Workers’ Compensation Commission affirmed the decision of the ALJ. Grothaus urges on appeal that the Commission’s decision was in error.
| ¡After obtaining a bachelor’s degree and teaching certificate in the late 1970s, Gro-thaus was unable ,to find a teaching job and eventually took a job with a fire department. After a few years as a firefighter and paramedic, he broke his neck and lower back while on the job. As a result of those injuries, Grothaus had surgeries to fuse the vertebrae in his neck and, a few years later, in his lower back. Unable to work as a result of those injuries, Grothaus began receiving disability. In 1994 or 1995, he went back to school, earned a second bachelor’s degree, and began graduate school. Grothaus moved to Eureka Springs and began teaching.
In 2002, a student at the school in Eureka Springs .attacked Grothaus and cracked both of his fusions. He sought medical attention from Dr. Kresse, his family doctor, who referred him to Dr. Raben, who performed surgery on Grothaus’s neck in May 2002. In September 2002, Grothaus had a plate placed in his neck and rods and bolts placed in his lower back. By 2005, Grothaus had returned to teaching. In April 2007, however, one of the screws in his neck came loose and had to be surgically repaired.
Grothaus took a teaching position at Vista Health in August 2008. On September 29, 2008, Grothaus was teaching one of his classes when one of his students began taking the metal levelers off of the bottom of his desk. Grothaus knelt beside the student to tell him that he could not do that, and the student threw one of the levelers at Grothaus. Grothaus caught it, but the student began throwing punches at his face. Grothaus fell backward, and the student started kicking him in the head. Within minutes, other school employees were able |sto get to the classroom and subdue the student, and Grothaus continued to teach for the rest of the day.
By the time Grothaus got home, he was “pretty sore,” and by the next morning, he was “really, really sore” and had a “terrific headache.” Despite the soreness in his neck and lower back, he went to work. By mid-morning, however, he was experiencing not only stiffness and soreness, but also spasms in his neck and back. Grothaus reported his situation to his supervisor, who referred him to Dr. Vandergriff. Dr. Vandergriff took x-rays of Grothaus’s neck and recommended that he see a neurosurgeon; accordingly, Grothaus made an appointment for October 3, 2008, with Dr. Knox, who had done one of his previous surgeries.
Dr. Knox took Grothaus off work and ordered an MRI, which was performed on October 18, 2008. Grothaus was originally scheduled for a follow-up appointment with Dr. Knox, but the doctor’s office lost the appointment and had to reschedule for a month later. Rather than waiting that long, however, Vista Health’s insurance company arranged for Grothaus to see Dr. Blankenship, who prescribed a course of steroids and physical therapy.
Grothaus continued to experience stiffness and soreness, as well as numbness in his left arm and left foot. Eventually, Dr. Blankenship recommended surgery, but Grothaus felt more comfortable with Dr. Knox performing that surgery and requested a change of physician so|4he could return to Dr. Knox. Dr. Knox agreed that surgery was advisable, but he felt that a different kind of procedure would be more appropriate.
On cross-examination at the hearing before the ALJ, Grothaus explained that his primary complaints since the September 2008 incident had been neck pain and numbness in his left arm and hand. Grothaus acknowledged that these were the same symptoms about which he had complained prior to the September 2008 injury, although he stated that there were more, and more intense, symptoms. He also agreed that the post-September 2008 symptoms of pain in his lower back and left leg were the same as the symptoms he had experienced prior to that time.
On the basis of Grothaus’s testimony and the medical records introduced at the hearing, the ALJ determined that Grothaus had not demonstrated that he had suffered a compensable injury. The ALJ first noted that Grothaus had “an extensive history of prior low back and neck complaints before September 29, 2008,” including three surgical procedures on his cervical spine and two surgical procedures on his lumbar spine. The ALJ also pointed to several non-work-related incidents in which Grothaus had injured his neck, including a slip-and-fall in November 2007 and an accident in which a ceiling fan fell on his head in July 2008; between those two incidents, Grothaus’s cervical-thoracic fusion had been fractured.
| 5Further, the ALJ observed that only one physician had examined Grothaus’s medical records from both before and after the September 29, 2008 incident. Vista Health offered a report dated July 13, 2009, by Dr. Hronas, a board-certified radiologist, who stated that he compared an MRI of Grothaus’s lumbar spine taken on June 2, 2006, with an MRI taken on October 13, 2008, and a CT myelogram taken on January 13, 2009. Dr. Hronas found that the findings regarding Grothaus’s lumbar spine were “stable and unchanged from the three examinations of the lumbar spine.” In addition, Dr. Hronas compared a cervical MRI taken on July 18, 2008, to a cervical MRI taken on October 13, 2008, and a CT myelogram dated January 13, 2009; he concluded that “the three [cervical-spine] studies show similar findings with no change from one examination to the next.” Dr. Hronas’s report concluded as follows:
After the injury on 9-29-08, [Grothaus] had similar clinical findings and symptoms [as had been previously reported after his earlier injuries] with the only difference being an apparent increase in the magnitude of the subjective complaints, resulting in subsequent treatment with cervical epidural steroid injections as before the injury. Based on the clinical history and MRI findings prior to and after the incident on 9-29-08, it appears there was no significant change clinically or with medical imaging after the incident.
The ALJ found that Dr. Hronas’s opinion was credible and entitled to great weight; accordingly, the ALJ found that Grothaus had failed to offer medical evidence supported by objective findings establishing a new injury. As such, the ALJ concluded that Grothaus “failed to meet his burden of proving by a preponderance of the evidence that he suffered a compensable injury to his cervical and/or lumbar spine as a result of the incident on September 29, 2008.” In an opinion filed on May 18, 2010, the Commission affirmed and |r,adopted the ALJ’s findings. Grothaus filed a timely notice of appeal on June 14, 2010, and now argues for reversal that the Commission’s decision is not supported by substantial evidence.
Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ’s opinion as its own, which it is permitted to do under Arkansas law. Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s order and the Commission’s majority order.
In appeals involving claims for workers’ compensation, our court views the evidence in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Galloway v. Tyson Foods, Inc., 2010 Ark. App. 610, at 5, 378 S.W.3d 210, 213. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Galloway, 2010 Ark.App. 610, at 5, 378 S.W.3d at 213. The issue is not whether the appellate court might have reached a different result from the Commission; |7if reasonable minds could reach the result found by the Commission, the appellate court must affirm. Id. Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Id.
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Neal v. Sparks Reg’l Med. Ctr., 104 Ark.App. 97, 102, 289 S.W.3d 163, 167 (2008). The Commission is not required to believe the testimony of the claimant or any other witnesses, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.
An employer takes an employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark.App. 460, 120 S.W.3d 150 (2003). An aggravation of a preexisting noncompensable condition by a compensable injury itself is compensable. Oliver v. Guardsmark, 68 Ark.App. 24, 3 S.W.3d 336 (1999). An aggravation, being a new injury with an independent cause, must meet the requirements for a compen-sable injury. Ford v. Chemipulp Process, Inc., 63 Ark.App. 260, 977 S.W.2d 5 (1998). Arkansas Code Annotated section 11—9—102(4)(A)(i) (Supp.2009) defines a compensable injury as
[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results | Rin disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
A compensable injury must be established by medical evidence supported by objective medical findings. Ark.Code Ann. § ll-9-102(4)(D) (Supp.2009). “Objective findings” are those findings that cannot come under the voluntary control of the patient. Ark.Code Ann. § 11-9-102(16). Thus, to be compensable, Grothaus’s alleged aggravation of a preexisting condition must itself have been a compensable injury—that is, it must be established by medical evidence supported by objective findings.
In this case, as discussed above, Grothaus had an extensive history of problems with his cervical and lumbar spine. In April 2007, he underwent an anterior cervical diskectomy and posterior cervical fusion; although he did well after these procedures, he continued to complain of back pain and was referred to Dr. Ennis for nerve block injections. In November 2007, Grothaus slipped on a mossy embankment and “torqued” his neck; x-rays taken at that time showed a pseudoarthrosis at the bottom level of the fusion site with a fractured screw. Although that situation was resolved with a bone stimulator and his neck was “markedly improved” by the time he saw Dr. Knox in April 2008, he continued to have significant back and leg pain at that time and sought additional pain management from Dr. Ennis throughout May 2008. In July 2008, Grothaus saw Dr. Knox again for a “small accident with a ceiling fan that clunked him on the head the first of June and re-aggravated [his neck] pain.” A July 15, 2008 x-ray revealed that this incident with the ceiling fan “broke the underlying residual fusion at the cervical/thoracic junction.”
19When Grothaus was examined by Dr. Vandergriff on September 30, 2008, after the work-related incident, x-rays of his cervical spine, lumbar spine, left hip, and skull “showed no acute fractures or dislocations except for the fact that it looks like the hardware of the C-spine has a broken screw.” This was clearly not a new objective medical finding, as the July 2008 x-ray had revealed the broken screw. An October 3, 2008 x-ray report by Dr. Knox also showed “previous extensive reconstructive spine surgery with anterior cervical dis-kectomy and fusion at C5-6 and C6-7, with posterior cervical fusion, lateral mass screw, and rod formation at C5, C6, and C7 with pedicle fixation at T1.... There is a fractured screw at Tl.” Again, these are not new objective findings.
There was only one report offered into evidence that directly compared Grothaus’s pre-September 2008 and post-September 2008 medical records — that of Dr. Hronas. As noted above, Dr. Hronas opined, within a reasonable degree of medical certainty, that “there was no significant change clinically or with medical imaging after the incident.” Because there was no medical evidence supported by objective findings to demonstrate that Grothaus sustained a compensable injury as a result of the September 29, 2008 incident, the Commission’s decision was supported by substantial evidence. See Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (where MRIs taken in 2001 and 2005 — before and after alleged work-related injury-showed “no interval changes in moderate to severe central stenosis at L4-5 secondary to disc bulging,” the lack of significant changes between the MRIs supported the ALJ’s 110conclusion that the 2005 MRI did not establish a new injury or an aggravation). Accordingly, we affirm the decision of the Commission.
Affirmed.
VAUGHT, C.J., and GLADWIN, J„ agree.
. It was at this point that Vista Health began controverting the compensability of Grothaus’s injuries.
. One commissioner dissented, contending that Grothaus had established that the September 29, 2008 incident aggravated a preexisting condition. The dissent also suggested that the ALJ had "confuse[d] the 'objective finding’ element with the 'causal connection element’ ” of compensability, asserting that objective medical evidence is not essential to establish a causal relationship between the injury and the claimant’s work. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Micah Mark Marchand challenges the Lonoke County Circuit Court’s award of custody to appellee Rachel Campbell Marchand pursuant to the divorce decree filed February 5, 2010. Appellant contends that the trial court erred in determining that it was in the best interest of the parties’ minor child to award custody to appellee. We affirm the trial court’s decision.
Statement of Facts
On January 10, 2008, appellee filed for divorce from appellant in Lonoke County Circuit Court wherein she sought custody of the parties’ eighteen-month-old son. Appellant filed a counterclaim for divorce and also sought custody of the parties’ child. Immediately subsequent to filing for divorce, appellee relocated to Mississippi and left the parties’ minor child with appellant. There was testimony at the final hearing that appellee had planned to 12leave the state with the child without telling appellant, and there was testimony that appellant kept the child from appellee after hearing of her plan.
On February 11, 2008, a temporary hearing was held that resulted in entry of a temporary order on March 10, 2008. Among other things, the temporary order awarded the parties joint-legal and joint-physical custody of the minor child, with the parties alternating custody of the child on a weekly basis. The temporary order also found appellee to be in contempt of the trial court’s restraining order and in-eluded several standard prohibitions, such as prohibiting overnight guests of the opposite sex in the presence of the child.
For approximately one-and-a-half years, the parties exercised a literal joint-custody arrangement as ordered by the trial court, until the child was about three years old. Appellee continued to reside in Mississippi, and appellant continued to reside in Arkansas. Then, on October 28, 2009, the trial court held the final divorce and custody trial. Each party testified regarding their routines with the child, and both accused the other of having extra-marital affairs.
Appellee has a daughter from a previous marriage, and appellee and her two children live in a mobile home on property owned by her parents. Appellee’s parents live next door, and her grandmother lives close by as well. Appellee is a registered nurse and works at Southwest Mississippi Regional Medical Center in the cardiovascular-surgical unit. She also works part time as a paramedic. Appellee works thirty-six hours per week during three twelve-hour shifts, taking night shifts when her son is visiting appellant. Her schedule is flexible, and her parents and sister help her with the children.
| oAppellee testified that it was difficult to talk to appellant about their son. She said that she encouraged her son to be excited about visitation with his father and that the child loves his father. She claimed that she does not speak ill of appellant around the child. Appellee testified that neither she nor appellant spank the child.
Appellee admitted to having a serious boyfriend, even though her divorce was not final, but claimed that her boyfriend had never spent the night when the child was present because the restraining order prevented it. She stated that she did not believe having her boyfriend around her child set a bad example for the child. Ap-pellee claimed that appellant spent an inordinate amount of time playing Warham-mer, a game involving miniature, painted figures set up on a large game table. She stated that appellant is an instructor in the military, that he is a sniper, and that he kept guns and ammunition for his job at his house.
Appellee testified that appellant held a loaded pistol to his head and threatened to blow his brains out when she tried to leave him in March 2007. She claimed that appellant was controlling and had loaded an excessive amount of pornography into all three computers in the house, including her daughter’s computer. She testified that appellant was never sexually satisfied and that he began going to Sex Addicts Anonymous before she left him. She admitted to making a pornographic video for appellant.
Appellee also admitted to being hospitalized for taking eight pills — Percocet and Dora Tab — in 2004. She explained that appellant was in Iraq and that she was depressed because she and appellant had been fighting. She claimed that she did not intend to kill herself, but, that she had had enough and “just wanted to sleep.” She said that she now takes Wellbutrin, an antidepressant.
14Appellee stated that in her attempts to get appellant home from Iraq, she exaggerated her claims regarding her father’s abusiveness and her mother’s bad personality traits. She denied opening an account for appellant on adultfriendfin-der.com, even though her bank records showed that the account was charged to her credit card. Appellant denied paying for the adultfriendfinder.com account and stated that he did not have access to appel-lee’s bank account.
Appellant testified that he communicates with appellee very well when it comes to their son. He stated that when the child comes back to his house, it takes several days to get him in the routine of going to the bathroom without accidents. Also, he said that it takes the child a while to begin obeying him without argument.
Appellant testified that he did not know appellee’s boyfriend but did not want the child confused by having to associate with the boyfriend. Appellant claimed that ap-pellee was the one convinced that he had a sex addiction and that the only reason he sought professional help was so that he could work things out with appellee. He stated that he went to a mental-health clinic at the air base and. that the therapist he saw did not believe that appellant had a sex addiction.
Appellant explained that appellee is the one who insisted on having a child when he felt that they were not financially stable. He blamed her constant telephone calls and insistence on having a child for the decision to leave his employment in December 2003. He testified that he could not obtain another job because he got deployment orders for April, and no one would hire him knowing he would soon be deployed. He testified that he injured his back |fiin Iraq, and because of that injury, he is no longer subject to being deployed. He works as an instructor from 7:00 a.m. to 3:30 p.m., Monday through Friday, and he takes the child to daycare.
Appellant denied being obsessed with the Warhammer game and stated that he only models or paints when the child is asleep or at appellee’s house. He also denied ever having put a gun to his head while being married to appellee. He explained that because he was non-deploya-ble, he would be less likely to be able to relocate to the Mississippi base or the Mississippi National Guard.
Appellant testified that he lives in a house where the child has his own bedroom and bathroom, and the yard is fenced in back. The • child has a friend his age who lives next door and plays with him all the time. Appellant claimed that there were about eighteen children in the neighborhood that were between the ages of thirteen and two.
Appellant also stated that he did not know how it would work out if appellee won custody. He said that if appellee ever wanted to come to Cabot to see the child, that was fine. He said that he was not opposed to appellee being around the child. He insisted that appellee attempted to secret the child out of the state when she moved to Mississippi. He also claims that she took his personal firearms and some belonging to the National Guard but eventually returned them.
Dr. Paul Deyoub, a forensic psychologist, prepared a report after interviewing both parties and gave a recommendation to the trial court that appellee be awarded custody of the child. The parties had completed a series of written psychological tests and were interviewed |6by Dr. Dey-oub. Dr. Deyoub explained that appellant had some personality problems regarding his infidelity and possible sexual addiction. He explained that appellant had issues related to impulsivity and that some test scores indicated unusual elevations on the schizophrenic scale, although appellant was not schizophrenic. Further, Dr. Deyoub testified that the tests indicated that appellant had some obsessive-compulsive traits or controlling-type traits.
Dr. Deyoub testified that appellee had a history of some depression and was taking medication for that. He said that appellant’s personality traits related to his behavior and appellee’s depression related to her feelings. Dr. Deyoub acknowledged that appellee had an incident, before she had the child at issue, when she had been hospitalized for an overdose. He said that he took into account the fact that appellee takes medication for her depression.
Dr. Deyoub stated that either party in the absence of the other would be capable of raising the child. He recommended that appellee have custody because she had been the primary caretaker for both of her children, the child would not be separated from his sister, and that there was no compelling reason not to recommend that the mother have primary custody. He stated that she was not unfit in any way, she has the opportunity for stability in Mississippi, she has family support, she had a flexible job, and she had a plan for the care of her children.
Appellant presented several witnesses including two neighbors of the parties who both testified to appellant’s character and his overall good parenting of the minor child. Appellant also introduced the intake person at the child’s doctor’s office, who testified that it was almost |7always appellant who took the child to the clinic, and ninety-nine percent of the time, appellant brought the child in on his own. Appellant also called two acquaintances, one who was his former supervisor, who testified about appellant’s strong character and good parenting skills. Appellant called a daycare worker at the facility where the minor child attended daycare in Arkansas. She testified that appellant did well with the minor child and was a “hands-on” father. The parties stipulated that appel-lee’s parents would testify as appellee had.
After taking the matter under advisement, the trial court entered a Decree of Divorce finding that it was in the best interest of the child that the parties share joint-legal custody of the minor child with appellee having physical custody. Appellant was granted one week of visitation per month and extended summer and holiday visitation. Appellant subsequently filed a motion to reconsider (for a new trial), and appellee responded. The motion to reconsider was deemed denied by the trial court after thirty days. Appellant then filed a timely notice of appeal from the order, and this appeal followed.
Standard of Review
We review child-custody cases de novo, but we will not reverse a circuit court’s findings unless they are clearly erroneous. Ross v. Ross, 2010 Ark. App. 497, 2010 WL 2404168. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002). Because the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s [Sbest interest; Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007). There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. Bailey v. Bailey, 97 Ark.App. 96, 244 S.W.3d 712 (2006). The primary consideration in child-custody cases is the welfare and best interests of the child involved; all other considerations are secondary. Hicks v. Cook, 103 Ark.App. 207, 288 S.W.3d 244 (2008).
Discussion
Appellant sets forth five reasons he believes the trial court erred in finding that it was in the child’s best interest to award custody to appellee. First, he contends that appellee failed to produce any lay witnesses, other than herself, for the trial court’s consideration in support of her bid for custody. He admits that the par ties agreed to stipulate that appellee’s parents would testify to the same information that appellee testified, but argues that there were no coworkers, friends, family, or others to testify as to her relationship with the child, her participation in custodial duties, or any other factor.
Appellee points out that the stipulated witnesses address appellant’s concerns. Further, there was no mention made by appellant nor the trial court during the trial regarding the number of witnesses called by appellee. We agree.
Second, appellant argues that there were numerous witnesses presented in support of his proposition that it is in the best interest of the child for custody to be awarded to him over appellee. He points to the positive testimony of his neighbors, the doctor’s office employee, his former supervisor, and the child’s daycare worker. He emphasizes that the deposition of | flthe social worker where appellee had been an inpatient in 2004 is proof that appellee has had ongoing mental-health issues, including two suicide attempts. He submits that he introduced appellee’s prior counselor, who stated that appellee never disclosed to her that appellee had been hospitalized for a suicide attempt. He also points to the law-enforcement officer’s testimony that contrasted his calm demeanor with appel-lee’s unwillingness to cooperate.
Appellee contends that these witnesses offered weak evidence and lacked specificity. For example, she claims that the neighbors’ testimony that appellant was a good parent was broad and conclusory. Further, she argues that the doctor’s-office employee did not say anything other than appellant was the one who brought the child to the clinic and that the child would sit with appellant and giggle and play. We agree that this evidence does not support either party, but reflects ordinary behavior expected of every parent.
Third, appellant claims that Dr. Dey-oub’s recommendation to award custody to appellee was based primarily upon appel-lee’s lies and fabrications. Appellee had indicated to Dr. Deyoub that her family would be helping her by providing daycare and other critical support. However, on cross examination, Dr. Deyoub admitted that the description of appellee’s parents as described by appellee in her own email was different than what was portrayed to him by appellee. In an email to appellant, appellee had described needing a more supportive environment than the one she had when she was living with her parents. However, she portrayed her family as supportive to Dr. Deyoub. Appellant claims that this is inconsistent and was appellee’s attempt to use deception to manipulate the outcome of the | mease. Appellant contends that Dr. Deyoub did not have appellee’s mental-health records at the time he decided to recommend that appellee have custody.
Appellee points out that Dr. Deyoub was examined vigorously by the attorney ad litem. The ad litem advised Dr. Deyoub of appellant’s allegations, and he did not modify his recommendations. Dr. Deyoub stated that, even if appellee did not have family support, she would be responsible for the children. He discussed the need to put all issues in perspective regarding a family consolidating around a grandchild during a divorce. Dr. Deyoub was advised of appellee’s mental-health history, and such claims by appellant were insufficient to warrant Dr. Deyoub’s changing his recommendation one-and-a-half years after his evaluation and report.
Fourth, appellant claims that appellee acknowledged multiple instances of inappropriate and unacceptable behavior. He points out that she admitted that she planned to remove the child from his daycare and run off to Mississippi without telling appellant, despite the restraining order. Also, he claims that she admitted to having made multiple pornographic videos, had watched pornography, and had also been involved in multiple extra-marital relations. He asserts that she stated that there was nothing wrong with her boyfriend staying the night at her home when she is exercising custody of the child. He claims that she acknowledged that her boyfriend stays there when her daughter is at home, and she does not let the boyfriend stay when the son is home only because of the restraining order. Finally, he states that she admitted that she violated the restraining order and failed to pay the trial court’s contempt fíne.
1 nAppellee claims that, to her knowledge at the time, no case had been filed and she was within her right to take the child with her to Mississippi. She contends that appellant disallowed any contact with her son until her attorney was able to secure a temporary hearing. Appellant did not allow her to see her son for a month. She further claims that the one pornographic movie made by her was at his behest when he was deployed. She admits that a second video of both parties was made, claiming it was a desperate act of a wife trying to keep her wandering husband from having affairs. She admits that she had one affair before the child was born but asserts that it is appellant who trivializes his addiction to sex and porn, which resulted in serial affairs. She maintains that after a twenty-two month separation, having a boyfriend is not unreasonable. And finally, she contends that she did not willingly violate the order to pay a $500 attorney’s fee, but was unable to pay the fee. Given this contradictory evidence, the trial court was forced to make a determination as to credibility, which will not be overturned by this court unless that determination is clearly erroneous. We affirm the trial court’s decision, despite appellee’s ac-knowledgements.
Fifth, appellant argues that appellee made multiple efforts to deceive the trial court and manipulate the outcome of the case. He claims that an order to compel had to be issued to require her to execute a medical release; that she has continuously denied her mental-health problems and numerous suicide attempts; that she has continued to deny her family problems and claims to have strong family support when she does not; that she was deceitful regarding her “alcohol abuse problem”; and that she continuously resisted production of one month’s |12bank statement, which revealed that she had used her account to register appellant for an internet dating site.
Appellee denies making multiple efforts to deceive the trial court and to manipulate the outcome of the case. She contends that appellant’s claims are conclusory and repetitious. She cites other cases showing comparatively worse behavior on behalf of the custodial parent that were affirmed by this court. See Shively v. Plautz, 2009 Ark. App. 752, 2009 WL 3762921 (where mother engaged in behavior that interfered with the father’s visitation and Dr. Deyoub recommended change of custody, but trial court affirmed custody in the mother not to be changed); and Valentine v. Valentine, 2010 Ark. App. 259, 377 S.W.3d 387 (where trial court was concerned at mother’s adulterous behavior before and after divorce, but let stand the previous custody order). Appellant points out that these two cases are ehange-of-custody cases, not initial-custody determinations.
We agree that the issue before the trial court in this initial-custody determination was what was in the best interest of the child, not whether a material change of circumstances had occurred that would warrant a custody change. Because the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. See Sharp v. Keeler, supra. Given that deference, we hold that the trial court’s award of custody to appellee was not clearly erroneous.
Affirmed.
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RAYMOND R. ABRAMSON, Judge.
|tA Crittenden County jury awarded appellee Hotel Associates, Inc. (HAI), $13,000,000 in compensatory damages and $12,000,000 in punitive damages against appellant Holiday Inn Franchising, Inc. (Holiday Inn). On Holiday Inn’s post trial motion, the circuit court reduced the compensatory award to $10,056,000 and the punitive award to $1,000,000. Both sides now appeal. Holiday Inn argues that the circuit court erred in denying its motion for a directed verdict on HAI’s claims for fraud and promissory estoppel and in submitting the issue of punitive damages to the jury. HAI contends that the court erred in reducing the jury’s damage awards and in granting a directed verdict on its breach-of-contract claim. We affirm on direct appeal and affirm in part and reverse in part on cross-appeal.
lifi. Background facts
The following facts are derived from the evidence adduced during a five-day jury trial in July 2009. We view the evidence in the light most favorable to HAI, as the party in whose favor judgment was entered. King v. Powell, 85 Ark. App. 212, 220,148 S.W.3d 792, 797 (2004).
HAI is a hotel ownership and manage: ment company owned by J.O. “Buddy” House. Prior to the onset of this lawsuit, Mr. House, who was engaged in the construction business, enjoyed a long and rewarding relationship with Holiday Inn dating back to the 1950s. He was particularly close to Holiday Inn’s founder, Kemmons Wilson, and the two collaborated on several hotel-construction projects. House considered Wilson a man of his word, so much so that many of their projects were undertaken without benefit of a written contract.
In the 1970s, House expanded his business to include hotel ownership and operation, eventually owning several Holiday Inn franchises in Texas and Arkansas. His relationship with Holiday Inn continued to be characterized by the faith and informality that had defined his relationship with Kemmons Wilson. For example, when Bill Bradford of Holiday Inn approached House about converting certain Texas hotel properties to Holiday Inns, House bought the properties before obtaining the franchise licenses, simply on the strength of his trust in Holiday Inn. As Bradford said, House was one of a group of owners who had been with Holiday Inn a long time and generally trusted that Holiday Inn would do what it said it would do.
|sThis was the state of things when, in the mid-1990s, Bradford asked House to look at a 242-room hotel in Wichita Falls, Texas, for possible conversion to a Holiday Inn. The facility had been operated by another corporation and had fallen into disrepair, but Bradford believed that House could make a success of it. House inspected the hotel and determined that a considerable amount of money would be needed to get the building into shape— more than he could recoup or turn a profit on under a normal, ten-year Holiday Inn franchise license. House therefore informed Bradford that he wanted a fifteen- or twenty-year license. Bradford, understanding House’s need for assurance of a longer license term, took the request to Steve Romanella, Holiday Inn’s vice president of franchising. Romanella declined to grant a fifteen- or twenty-year license, but he stated that, if House operated the hotel appropriately, there was no reason to think that he would not receive a license extension at the end of the ten years. Bradford conveyed this to House, and House, being satisfied that he would receive a license extension (if all went well), bought the hotel property and signed a ten-year franchise agreement with Holiday Inn on March 27,1995.
House renovated the hotel in Wichita Falls and began what was, by all accounts, a successful operation. The facility generated substantial profits, and, after receiving several offers to buy the hotel, House considered selling it for as much as $15,000,000. He decided to retain the property, however, when his accountant informed him that he would make more money by seeking relicensure and continuing to operate the hotel for as long as possible. House therefore kept the hotel and made plans to seek early relicensure.
^Despite House’s success in Wichita Falls, at least one member of Holiday Inn’s franchise department, director of franchise development Greg Aden, decided that he would oppose House’s continued operation and would instead advocate the licensure of another local hotel that was being operated as a Radisson. Aden prepared a business plan to this effect in 1999 and provided the plan to his superiors. He stood to gain a commission of approximately $13,000 to $14,000 if the franchise was redirected to the Radisson. At some point, Aden shared his business plan with his contact at the Radisson, Mr. Patel; but neither Aden nor his superiors provided the plan to House or informed him of its existence. House was therefore unaware of the plan when, in 2001, his company contacted Holiday Inn to begin the early relicensure process.
In February 2001, Don Strahl of HAI spoke to a Holiday Inn representative about HAI’s interest in early relicensure. The representative replied that HAI should forward $2500 for preparation of a Property Improvement Plan (PIP), which would detail all of the updates needed to the hotel’s design and building specifications. HAI forwarded the $2500, and a Holiday Inn representative arrived to inspect the hotel within a few days. The result was an approximately thirty-page document detailing a wide variety of needed improvements, many of them involving major guestroom renovations. The document required HAI to submit certain design plans to Holiday Inn for approval, and it noted that HAI planned to spend approximately $2,000,000 on the project.
Additionally, the PIP document, as well as Holiday Inn’s correspondence with HAI, noted that the PIP was but one step in the application | .^process; that it did not mean that Holiday Inn would approve the license application; and that the Franchise Approval Committee would be responsible for granting the application.
HAI in fact spent $3,000,000 on the renovations. As required, it submitted certain design choices to Holiday Inn, referencing the proposed relicensure, and Holiday Inn duly approved the choices. At no time did Holiday Inn mention Aden’s business plan opposing HAI’s relicensure. In fact, Aden, at some point, took one of Mr. Patel’s associates, a Mr. Clancy, onto the premises at HAI’s hotel and, without identifying Clancy as a representative of a possible competitor, obtained a tom* of the hotel.
HAI completed the improvements required by the PIP in 2002. By that time, more than six months had passed since the PIP was issued, so Holiday Inn required a second PIP. HAI paid for another inspection and received a second, less-extensive PIP in October 2002. When those improvements were completed, HAI received a quality score of 96.05, which was considered good.
On October 3, 2002, Holiday Inn notified HAI that it had received an application from the Radisson to convert to a Holiday Inn. The letter stated that the Radisson was being considered as a possible partial replacement for HAI’s Holiday Inn “should it leave the system.” HAI immediately assured Holiday Inn that it wanted to continue operating its hotel and that it had just “completed a three million dollar PIP and [was] in negotiations for an extension or early renewal of [its] license.” Soon thereafter, HAI received a call that the Radisson application had been denied and that HAI should immediately send in its application for relicensure, which had yet to be done. On December 19, 2002, HAI submitted the | (¡application, and the Franchise Approval Committee’s consideration was scheduled for January 2003.
In early January 2003, two of Aden’s supervisors, Brown Kessler and Steve Dietrich, asked Heather Botwinik of Holiday Inn to postpone HAI’s relicensure hearing until they could re-visit the Wichita Falls area and possibly submit a “competing application.” Botwinik emailed that she would agree to the delay on the condition that Buddy House be informed that “you are looking to reposition in the market” and that “he could possibly replace himself in the market.” Otherwise, Bot-winik said, changes to the agenda on such short notice would “stir up a lot of questions that he will want answers to that I may not be able to provide for him.” Dietrich responded that Buddy House had been informed of a “replacement project” in November and that House “did not want to renew himself.” Aden told Botwinik that House had been “thoroughly communicated with” on their intentions. At some point thereafter, Aden and his colleagues succeeded in reviving the Radisson application. The Franchise Approval Committee considered both the application from the Radisson, which was presented by Aden and his superiors, and the application from HAI, which was presented by Heather Botwinik. The Committee chose the Radisson and voted not to renew HAI’s license.
After learning of the vote, House contacted Holiday Inn personnel to find out what had happened; he was unaware that the Radisson application was still under consideration. He told Holiday Inn that, while he had known that HAI was not guaranteed relicensure, there had “always been a realm of trust you could depend on.” Ultimately, Brown Kessler of 17Holiday Inn told House that the vote had been a “beauty contest”; in other words, the Radisson was the more attractive facility. HAI continued to operate the hotel through 2005 under its original, ten-year Holiday Inn license, then operated the hotel under other brand names before eventually selling it in 2007 for $5,000,000.
As the result of these events, HAI sued Holiday Inn on August 15, 2005, seeking compensatory and punitive damages and asserting causes of action for breach of contract, promissory estoppel, and fraud. As developed at trial, HAI claimed that Holiday Inn’s denial of the relicensure violated the implied covenant of good faith and fair dealing in the parties’ contract; that Holiday Inn had promised to renew HAI’s license at the end of ten years if the hotel was operated appropriately and that HAI had relied on that promise to its detriment; and that Holiday Inn fraudulently failed to disclose the Aden report advocating licensure of a competing facility in Wichita Falls. During the trial, Buddy House testified that, if he had known of the 1999 Aden report, he would not have spent the $3,000,000 on the PIP renovations in 2001 and 2002, and he would have sold the hotel in 1999-2001 for $15,000,000, rather than the amount he eventually sold it for in 2007, which was $5,000,000.
At the close of the proof, the circuit court granted Holiday Inn’s motion for a directed verdict on the breach-of-contract count but denied its directed-verdict motion on the promissory-estoppel and fraud counts. The jury was instructed on those claims and returned a verdict in HAI’s favor on both causes of action. It also awarded HAI $3,000,000 for | ^amounts spent in renovating and improving the hotel; $10,000,000 associated with HAI’s lost opportunity to sell the hotel; and $12,000,000 in punitive damages.
In a timely fashion, Holiday Inn moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial and remittitur. The circuit court, after a thorough and painstaking review of the motion, let the jury’s liability verdict stand. The court, however, remitted the damage awards: the compensatory award was reduced from $13,000,000 to $10,056,000 in recognition of amounts that HAI had earned or profited from the hotel between 2000 and 2007, and the punitive award was reduced from $12,000,000 to $1,000,000. With regard to punitive damages, the court ruled that the award did not shock the conscience of the court and did not appear to be the result of passion or prejudice. ■ However, the court concluded that the punitive damages ran afoul of federal due-process guidelines established in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996).
The above proceedings led to the appeal and cross-appeal now before us. Holiday Inn argues on direct appeal that the circuit court erred in 1) denying its motion for a directed verdict on HAI’s claim for fraud; 2) denying its motion for a directed verdict on HAI’s claim for promissory estoppel; and 3) submitting the issue of punitive damages to the jury. HAI argues on cross-appeal that the circuit court erred in 1) reducing the compensatory-damage award; 2) reducing the punitive-damage award; and 3) granting a directed verdict on its breach-of-contract claim.
J9II. Direct appeal — Directed verdicts on fraud and promissory estoppel
At the close of the plaintiffs case, Holiday Inn moved for a directed verdict on fraud and promissory estoppel, citing several specific grounds. The motion was renewed at the close of the proof, then denied by the court. Holiday Inn contends that this denial was error.
In reviewing the denial of a motion for a directed verdict, we must determine whether the jury’s verdict is supported by substantial evidence. King, 85 Ark. App. at 220, 148 S.W.3d at 797. Substantial evidence is proof of sufficient force and character that it compels a conclusion one way or the other without resort to speculation or conjecture. Id. We review the evidence and all reasonable inferences therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
A. Procedural issue
We first address HAI’s contention that Holiday Inn’s argument on this point is procedurally barred because the directed-verdict motions were not renewed at the conclusion of all evidence. Rule 50(e) of the Arkansas Rules of Civil Procedure provides that, in a jury trial, a person who does not have the burden of proof must move for a directed verdict “at the conclusion of all the evidence” to preserve a challenge to the sufficiency of the evidence
l10on appeal. See Willson Safety Prods, v. Eschenbrenner, 302 Ark. 228, 232-33, 788 S.W.2d 729, 732-33 (1990). HAI asserts that the timing of Holiday Inn’s motion did not comport with Rule 50(e).
The record reveals that, after the last witness in the case had testified, Holiday Inn’s counsel stated, “That’s all, Your Hon- or.” The court then recessed for lunch and dismissed the jury. After the recess, with the jury still away from the courtroom, Holiday Inn renewed its previous motion for a directed verdict on all three counts — breach of contract, fraud, and promissory estoppel. The court granted a directed verdict on the breach-of-contract claim but denied the motion with regard to promissory estoppel and fraud. Following a lengthy colloquy over jury instructions that consumed the remainder of the day, the court reminded Holiday Inn’s counsel that he had not rested in the jury’s presence. The next day, the court opened the proceedings in front of the jury and asked if Holiday Inn had rested. Counsel stated that the defense rested, but counsel did not renew the motion for directed verdict at that time.
HAI contends that, because Holiday Inn did not move for a directed verdict after it formally rested its case before the jury, it did not comply with Rule 50(e)’s requirement that a motion for a directed verdict be made “at the conclusion of all the evidence.” We disagree. The motion was made after the last witness had testified and before any instructions or arguments were made to the jury. Cf. Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002) (holding that a directed-verdict motion made after the jury was instructed was untimely); State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002) (holding that a directed-verdiet motion madeja during closing arguments was untimely). Further, no additional proof was introduced after Holiday Inn renewed its directed-verdict motion, which distinguishes this case from Davis v. State, 2009 Ark. 478, 348 S.W.3d 553. In Davis, the appellant moved for a directed verdict in chambers, which the court denied. The appellant then returned to court and introduced several documents
into evidence before resting. Our supreme court held that the appellant’s directed-verdict motion was not timely because it did not come at the conclusion of all evidence. Here, by contrast, the proof was closed and remained closed at the time Holiday Inn renewed its motion for a directed verdict. The motion was therefore made “at the conclusion of all the evidence” and complied with Rule 50(e).
B. Directed verdict on fraud
The elements of fraud are 1) a false representation of a material fact; 2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; 3) intent to induce action or inaction in reliance upon the representation; 4) justifiable reliance on the representation; and 5) damages suffered as a result of the reliance. Wochos v. Woolverton, 2010 Ark. App. 802, at 12, 378 S.W.3d 280, 288. On appeal, Holiday Inn challenges the sufficiency of the evidence on the first and third elements.
Regarding the first element, Holiday Inn points out that HAI’s fraud claim was not based on a false representation of fact but on an alleged failure to disclose the 1999 Aden report. Holiday Inn contends that, because it had no fiduciary or other confidential or special relationship with HAI, it had no duty to disclose the report.
| ^Generally, a mere failure to volunteer information does not constitute fraud. Farm Bureau Policy Holders v. Farm Bureau Mut. Ins. Co., 335 Ark. 285, 302, 984 S.W.2d 6, 14-15 (1998). But silence can amount to actionable fraud in some circumstances where the parties have a relation of trust or confidence, where there is inequality of condition and knowledge, or where there are other attendant circumstances. Id. The duty to disclose is not limited to confidential or fiduciary relationships, as Holiday Inn suggests. See Camp v. First Fed. Savings & Loan, 12 Ark. App. 150, 154, 671 S.W.2d 213, 216 (1984). There may be a special relationship or special circumstances requiring disclosure. Id. In determining whether such special relationships or circumstances exist, the events surrounding the parties’ transaction may be considered. Lambert v. Firstar Bank, 83 Ark. App. 259, 265, 127 S.W.3d 523, 527-28 (2003).
In this case, substantial evidence supports the existence of a duty on Holiday Inn’s part to disclose the Aden report to HAI. Buddy House had a long-term relationship with Holiday Inn characterized by honesty, trust, and the free flow of pertinent information. He testified that Bill Bradford’s assurances at the onset of licen-sure in 1995 led him to believe that he would be relicensed after ten years if the hotel was operated appropriately. Yet, despite Holiday Inn’s having provided such an assurance to House, it failed to apprise House of an internal business plan, developed only four years into his licensing period, that advocated licensure of another facility instead of the renewal of his license. A duty of disclosure may exist where information is peculiarly within the knowledge of one party and is of such a nature that the other party is justified in
assuming its nonexistence. Bridges v. United, Savings Ass’n, 24613Ark. 221, 228, 438 S.W.2d 303, 306 (1969); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. First Nat’l Bank of Little Rock, 774, F.2d 909, 913-14 (8th Cir.1985). Given House’s history with Holiday Inn and the assurance he received from Bradford, we are convinced he was justified in assuming that no obstacles had arisen that jeopardized his relicensure.
Holiday Inn asserts that it would have provided Buddy House with the Aden report if he had asked for it. But, Holiday Inn cannot satisfactorily explain why House should have been charged with the responsibility of inquiring about a plan that he did not know existed. Moreover, several Holiday Inn personnel testified that Buddy House in fact should have been provided with the Aden marketing plan. Aden himself stated that, if Buddy House told someone at Holiday Inn that he was interested in relicensing, House should have been given the plan. Company vice-presidents Brown Kessler and Kirk Kinsell similarly stated that if House had told Holiday Inn that he was interested in relicensing and wanted a PIP for that purpose, House typically would have been informed of the marketing strategy in order to evaluate the economic risk of spending millions of dollars. These witnesses intimated that Holiday Inn was not aware of House’s desire for relicensing or his intention to spend a great deal of money on facility improvements. Yet, that intimation is not borne out by the proof. Holiday Inn’s initial correspondence with HAI in February 2001 stated, “it was a pleasure speaking with you today regarding your potential early re-licensing....” The thirty-page PIP, issued later in February 2001, contains a title page referencing the “proposed relicensing” |14of the hotel and notes HAI’s intention to spend approximately $2,000,000 on the improvements. In light of these circumstances, we see no ground for reversal on this aspect of HAI’s cause of action for fraud.
Holiday Inn argues next that HAI did not present sufficient evidence of the third element of fraud, i.e., that Holiday Inn intended to induce action or inaction in reliance upon a representation. Holiday Inn has failed to preserve this argument for appellate review. In its directed-verdict motion on HAI’s fraud claim, Holiday Inn argued that it had no duty to disclose the Aden plan and that, in any event, HAI was bound to honor its contract to keep the hotel franchise for ten years. Holiday Inn did not argue that HAI failed to produce evidence of an intent to induce action or inaction in reliance on a representation. A party cannot change his argument on appeal and is bound by the scope of his argument below. Exigence, LLC v. Baylark, 2010 Ark. 306, at 10, 367 S.W.3d 550, 555. Further, even though Holiday Inn touched on this argument in its post trial motion, an argument made in a JNOV motion not previously made in a directed-verdict motion is not preserved for appeal. Carr v. Nance, 2010 Ark. 497, at 22, 370 S.W.3d 826, 839.
Based on the foregoing, we conclude that the jury’s verdict on fraud was supported by substantial evidence and that the circuit court did not err in denying Holiday Inn’s motion for a directed verdict.
C. Directed verdict on promissory estoppel
To recover on the theory of promissory estoppel, HAI had the burden of proving the following propositions: 1) that Holiday Inn made a promise to HAI; 2) that Holiday Inn | ^should have reasonably expected HAI to act or refrain from acting in reliance on the promise; 3) that HAI acted or refrained from acting in reasonable reliance on the promise to its detriment; and 4) that injustice can be avoided only by enforcement of the promise. AMI Civ. 2444 (2008); see also Van Dyke v. Glover, 326 Ark. 736, 744-45, 934 S.W.2d 204, 209 (1996); Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 27, 129 S.W.3d 324, 341 (2003). The alleged promise at issue in this case was Bill Bradford’s 1995 statement to Buddy House that, if HAI operated the hotel appropriately, there was no reason to think that HAI would not receive an . extension of its license at the end of ten years. Holiday Inn argues on appeal that the circuit court should have granted a directed verdict on promissory-estoppel because 1) Bradford’s statement did not constitute a promise, and 2) HAI did not rely on Bradford’s statement.
Because we ruled in the preceding section that the jury’s fraud verdict should be upheld, we deem it unnecessary to reach the issue of whether a directed verdict should have been granted on HAI’s promissory-estoppel claim. The verdict interrogatories used by the jury awarded damages of $3,000,000 in connection with the PIP improvements and $10,000,000 in connection with the lost opportunity to sell the hotel without differentiating between the two theories of recovery. Moreover, Buddy House testified that, if he had known of the 1999 Aden report — the basis for the fraud claim — he would not have spent the $3,000,000 on improvements and he would have sold the hotel for a net gain of $10,000,000. Thus, the fraud verdict supports the full, $13,000,000 compensatory-damage award, and any disposition of the promissory-estoppel claim on our part would be academic. Our court does not
answer academic questions. Kuelbs v. Hill, 2010 Ark. App. 427, at 7, 379 S.W.3d 47, 52-53.
| i6III. Direct appeal—submission of punitive damages
Holiday Inn contends that the jury should not have been instructed on punitive damages because HAI proved no malice or intent to injure. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Carr, 2010 Ark. 497, at 23, 370 S.W.3d 826, 839-40. We will not reverse a circuit court’s decision to given an instruction unless the court abused its discretion. Id.
We see no abuse of discretion here. Punitive damages may be proved not only by showing that the defendant intentionally pursued a course of conduct for the purpose of causing injury but also by showing that the defendant knew or should have known that, in light of surrounding circumstances, its conduct would naturally and probably result in injury and that it continued the conduct in reckless disregard of the circumstances, from which malice may be inferred. HCA Health Sens. v. Nat’l Bank of Comm., 294 Ark. 525, 533, 745 S.W.2d 120, 125 (1988); AMI-Civil 2218 (2008). The evidence in this case, as recounted above, showed that Holiday Inn had a long-standing relationship with HAI and had assured HAI of relicensure if HAI operated the hotel appropriately; that Holiday Inn was aware that 117HAI was applying for early relicen-sure in 2001 and that HAI intended to spend millions of dollars in improvements as a result; that Holiday Inn, knowing that its files contained a marketing report advocating licensure of another facility, provided that report to HAI’s competitor but stood by while HAI spent the PIP money and pursued relicensure, without providing the report to HAI; that Holiday Inn personnel knew that HAI should have received the report under the circum stances; and that some Holiday Inn personnel made what appeared to be false statements and manipulated the Franchise Approval Committee’s consideration of the competing application by implying that HAI had no interest in relicensing. These facts constitute “some basis in the evidence” to support Holiday Inn’s knowledge that its conduct would naturally and probably result in injury but that it continued its conduct in reckless disregard of the consequences to HAI. Further, such deliberate deceit in the context of a fraud claim warrants submission of punitive damages to the jury. See Firstbank of Ark. v. Keeling, 312 Ark. 441, 446, 850 S.W.2d 310, 314 (1993).
Based on the foregoing reasons, we affirm on direct appeal.
IV. Cross-appeal — remittitur of compensatory damages
HAI’s first point on cross-appeal concerns the $10,000,000 awarded to HAI in connection with its lost opportunity to sell the hotel. Buddy House testified that he would have sold the hotel in the 1999-to-2001 time period for $15,000,000 had he known about the Aden report. Instead, he sold the hotel for $5,000,000 in 2007. That difference constitutes the jury’s $10,000,000 verdict.
|18In a post trial motion, Holiday Inn argued that the jury failed to reduce HAI’s $10,000,000 recovery by the amount that HAI earned or profited from hotel operations between the time it could have sold the hotel and the time it did sell the hotel. The court agreed and deducted $2,944,000 from the jury’s award for a new total of $7,056,000 on the hotel-sale damages. HAI argues on cross-appeal that the court’s remittitur was in error.
We review remittiturs de novo. Carr v. Nance, 2010 Ark. 497, at 25, 370 S.W.3d 826, 841. A remittitur is proper where the jury’s compensatory award cannot be sustained by the evidence. Id. at 25-26, 370 S.W.3d at 841. The question for us is whether substantial evidence supports the jury’s verdict. Id.
We uphold the compensatory-damage remittitur in this case. Buddy House’s own testimony, as well as figures from HAI’s spreadsheets, revealed that HAI generated $4,317,000 in net operating income between 2000 and 2007. House testified that his true net profit would be reduced by approximately $4,000,000 in interest he had paid during those years and that such interest would “almost wipe out” the $4,317,000 in net operating income. Thus, he sought the entire $10,000,000 in lost-sales opportunity without deductions for any earnings. On closer questioning, however, House referred to HAI’s spreadsheet, which contained figures showing interest payments of only $1,373,000 between 2000 and 2007. After trial, the circuit court used that figure to reduce HAI’s earnings from $4,317,000 and |19arrive at a true net-earnings figure of $2,944,000 between 2000 and 2007. That figure was, in turn, deducted from the jury’s $10,000,000 damage award in connection with the sale of the hotel. In our de novo review, we concur with the court’s calculations. They were based on objective evidence of HAI’s earnings and expenditures and fulfilled the charge to the jury to reduce HAI’s recovery by amounts “earned or profited.”
HAI claims that the court did not consider depreciation as an additional factor in reducing HAI’s earnings, but House testified that depreciation did not constitute a cash expenditure like the interest payments. HAI also argues that the court erred in including year 2000 net operating income in its calculations because House testified that he would not have sold the hotel for $15,000,000 until 2001. However, House did testify at one point that he could have sold the hotel in 1999 or 2000 for $15,000,000. We therefore affirm on this point.
V. Cross-appeal — remittitur of punitive damages
HAI argues that the circuit court erred in reducing the punitive-damages award to $1,000,000 and that the jury’s original $12,000,000 punitive-damages verdict should be restored.
Punitive damages are reviewed by our courts in a two-step process: first, whether the award is consistent with state law, and second, whether it violates the Due Process Clause, as analyzed by the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Allstate Ins. Co. v. Dodson, 2011 Ark. 19, at 27, 376 S.W.3d 414, 431. The circuit court in this case found that the jury’s $12,000,000 award passed muster under state 12ftlaw but ordered remittitur because the amount violated federal due-process guarantees. Our review is de novo. Bronakowski v. Lindhurst, 2009 Ark. App. 513, at 12, 324 S.W.3d 719, 726.
A. State-law considerations
Our supreme court has set forth the following law related to remittitur and punitive damages in the context of state common-law analysis:
When considering the remittitur of punitive damages ... we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Punitive damages are a penalty for conduct that is malicious or perpetrated with the deliberate intent to injure another. When punitive damages are alleged to be excessive, we review the proof and all reasonable inferences in the light most favorable to the appel-lees, and we determine whether the verdict is so great as to shock the conscience of this court or to demonstrate passion or prejudice on the part of the trier of fact. It is important that the punitive damages be sufficient to deter others from comparable conduct in the future.
Advocat, Inc. v. Sauer, 353 Ark. 29, 50, 111 S.W.3d 346, 357-58 (2003) (citations omitted) (quoting Routh Wrecker Serv. v. Washington, 335 Ark. 232, 240-41, 980 S.W.2d 240, 244 (1998)).
The circuit court in this case applied the above-mentioned factors and determined that, while Holiday Inn had no overall intent to harm the plaintiff, certain employees stood to gain financially from their actions, and their conduct was imputed to Holiday Inn. The court also noted that Holiday Inn was a multi-national company that had sold several hotels just prior to trial for an average price of $34,000,000 each. Under these circumstances, the court concluded that the jury’s $12,000,000 punitive-damages award did not shock the conscience of the court and did not demonstrate passion or prejudice.
laiBecause the circuit court upheld the jury’s punitive-damages verdict under state law, HAI does not challenge this portion of the court’s ruling. In our de novo review, however, we will remain mindful of these state-law considerations as part of our overall evaluation of the punitive-damages award.
B. Federal due-process considerations
In BMW of North America v. Gore, supra, the United States Supreme Court set forth three guideposts to consider in determining whether a punitive-damages award is excessive under federal law: 1) the degree of reprehensibility of the defendant’s conduct; 2) the disparity between the harm or potential harm suffered by the plaintiff and the punitive-damages award, also expressed as the ratio between compensatory and punitive damages; and 3) the difference between the punitive award and comparable civil penalties authorized or imposed in comparable cases. Dodson, 2011 Ark. 19, at 28, 876 S.W.3d 414, 431; Jim Ray, Inc. v. Williams, 99 Ark. App. 315, 321, 260 S.W.3d 307, 310 (2007). Both the appellate court and the circuit court are charged with conducting a thorough and independent evaluation of the jury’s punitive-damages award using these three factors. Jim Ray, 99 Ark. App. at 321, 260 S.W.3d at 310.
The circuit court found that the jury’s $12,000,000 award violated due process for the following reasons: the award was disproportionately high because Holiday Inn’s failure to disclose the Aden report to HAI appeared to have been more of an accident; HAI was fully compensated for its losses, and the punitive damages would constitute an excessive windfall; and comparable civil penalties under Arkansas’s Deceptive Trade Practices Act and Civil |8⅞Justice Reform Act were far less than the punitive-damages award. Before engaging in our own analysis, we note in particular that we do not share the circuit court’s concern that the punitive damages will present a windfall to HAI. Even where the plaintiff has been made whole by compensatory damages, punitive damages may be justified to punish the wrongdoer and to deter similar conduct in the wrongdoer and others. Jim Ray, 99 Ark. App. at 321, 260 S.W.3d at 310. Punitive damages are aimed not at compensation but retribution and deterring harmful conduct. Exxon Shipping Co. v. Baker, 554 U.S. 471, 492, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008).
1. Degree of reprehensibility
In assessing the defendant’s degree of reprehensibility, we consider the following factors: whether the harm to the plaintiff was physical or economic; whether the defendant’s conduct evidenced an indifference or real disregard of the safety of others; whether the target of the defendant’s conduct was financially vulnerable; whether the conduct involved repeated actions or an isolated incident; and whether the plaintiffs harm resulted from intentional malice, trickery, or deceit, or mere accident. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513,155 L.Ed.2d 585 (2003).
Here, HAI’s damages were purely economic; no individual’s health or safety was compromised. However, infliction of economic harm may warrant substantial exemplary damages under the right circumstances. Dodson, 2011 Ark. 19, at 29-30, 376 S.W.3d 414, 432-33. In the very recent case of Dodson, supra, our supreme court reversed a remittitur in an economic-damage ease where the trial court had remitted a $15,000,000 punitive-damages award to the sum of $6,000,000 to match those awarded for compensatory damages.
123As in Dodson, most of the evidence presented here reflected that the harm caused to HAI, although purely economic, was substantial. In the instant case, Holiday Inn, a multi-national corporation, failed to disclose valuable information to a businessman who had worked with and trusted the company for over half a century. In doing so, Holiday Inn caused the businessman, over a period of more than a year, to expend significant sums of money on a hotel that he believed would be reli-censed but whose relicensure certain Holiday Inn personnel were determined to thwart. Further, the nondisclosure of Holiday Inn’s business plan, which Holiday Inn knew that HAI was entitled to have, combined with Holiday Inn’s providing the plan to HAI’s competitor, indicates, at the very least, outright disregard of HAI’s interest as a franchisee and, at most, a deliberate attempt by certain Holiday Inn employees to reap their own economic benefits by keeping HAI in the dark. On these facts, notwithstanding the trial court’s finding that Holiday Inn’s nondisclosure appeared to be “more of an accident,” we conclude that Holiday Inn’s degree of reprehensibility supports a significant punitive-damages award. See Dodson, supra.
2. Ratio
Our courts have not established an acceptable, bright-line ratio of compensatory damages to punitive damages, but the U.S. Supreme Court in Campbell, supra, stated that, in practice, few awards exceeding the single-digit ratio will satisfy due process. Campbell, 538 U.S. at 425, 123 S.Ct. 1513.
In this case, the jury’s $12,000,000 punitive-damages award is well within constitutional territory. The compensatory award, as reduced by the circuit court, is |?4$10,056,000, yielding a ratio of 1.19-to-l. This is a far cry from the 145-to-l ratio or the 500-to-l ratio found constitutionally wanting in Campbell and Gore, respectively. This ratio also falls easily within the range of generally accepted ratios (most of which are single digit) that our courts have approved in other punitive-damages cases. See, e.g., Dodson, supra (upholding jury award of $6 million in compensatory damages and reinstating the $15 million in punitive damages in actions for defamation and tortious interference with a business expectancy; ratio of 2.5-to-l); Advocat, supra (affirming on condition of remittitur but noting that a $63 million punitive damages award in a $15 million negligence and medical-malpractice action resulting in a ratio of 4.2-to-1 was not so “breathtaking” as to “raise a suspicious eyebrow”); Bronakow-ski supra (finding a punitive-damages ratio of 42-to-l in an action for improperly removing timber from an adjoining lot not so grossly excessive as to violate due process); Jim Ray, supra (remitting a punitive-damages award in a fraud and deceptive-trade-practices case to a ratio of 7-to-1); Hudson v. Cook, 82 Ark. App. 246, 105 S.W.3d 821 (2003) (affirming a punitive-damages award of $250,000 in a $35,000 compensatory-damage case involving re-plevin, conversion, and interference with a business and business expectancy resulting in a damages ratio of 7-to-l). See also Exxon Shipping, supra (stating that a ratio of 1-to-l is the upper limit in a maritime case).
3. Comparable civil penalties
The Arkansas Deceptive Trade Practices Act imposes a $10,000 penalty for unconscionable trade practices. Ark.Code Ann: § 4-88-113(a)(3) (Repl.2001). Additionally, our Civil Justice Reform Act, which was not in effect at the time this cause of action arose, | ^limits punitive damages to $1,000,000 in many circumstances. Ark.Code Ann. § 16-55-208 (Repl.2005). These statutes militate in favor of reducing the jury’s punitive-damages award, but they are not alone disposi-tive. Dodson, 2011 Ark. 19, at 32, 376 S.W.3d 414, 434. When balanced against the reprehensibility of the defendant’s con duct and a compensatory-to-punitive ratio of 1.19-to-l, our analysis compels a net result in favor of the jury’s full punitive-damages award. We therefore find no due-process violation in the award of $12,000,000 and reverse on this point with instructions to restore the jury’s punitive-damages award.
VI. Cross-appeal — directed verdict on breach of contract
HAI argues that the circuit court erred in granting a directed verdict on its breach-of-contract claim. In its appellate brief, however, HAI states an intention to forego this issue in the event we affirm on direct appeal. Because we have affirmed on direct appeal, we need not address this point.
Affirmed on direct appeal; affirmed in part and reversed in part on cross-appeal.
VAUGHT, C.J., and GRUBER, J., agree.
. In the event of relicensure, Aden would not receive a commission.
. HAI also sued for breach of the Arkansas and Texas Deceptive Trade Practices Acts. Those counts were dismissed prior to trial and are not at issue on appeal.
. With regard to fraud, Holiday Inn argued that it had no duty to disclose Aden’s business plan to HAI and that HAI was contractually bound to operate the hotel as a Holiday Inn for ten years. On promissory estoppel, Holiday Inn argued that there was no evidence it had made a promise to HAI or that HAI reasonably relied on an alleged promise.
. HAI contends that Holiday Inn's argument on this point is procedurally barred because Holiday Inn did not object to the punitive-damages instruction and seek a directed verdict on punitive damages. Both were not required. The failure to preserve a punitive-damages argument at one of these stages— directed verdict motion or objection to jury instructions — waives the argument on appeal. Prendergast v. Craft, 102 Ark. App. 237, 245, 284 S.W.3d 104, 110 (2008); Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 20, 129 S.W.3d 324, 336 (2003). Holiday Inn preserved its argument at the jury-instruction stage.
. The jury was instructed that it could award HAI the difference between the amount for which HAI could have sold the hotel and the amount for which HAI did sell the hotel, "less the amount that HAI earned or profited” between the time it could have sold the hotel and did sell the hotel. | [
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DOUG MARTIN, Judge.
I,Billy Berry brings this appeal from the order dismissing his shareholder-derivative action against various officers and di rectors of Dillard’s, Inc. In dismissing the action, the Pulaski County Circuit Court found that the complaint was defective because it failed to | ¡properly allege that Berry made a presuit demand of Dillard’s board of directors or that such a demand was futile, requirements imposed both by statute and the rules of civil procedure. For reversal, Berry asserts that he pled sufficient facts such that the demand requirement should be excused as futile. We affirm.
Berry is a shareholder of Dillard’s, Inc. He brings his claim on behalf of Dillard’s alleging breach of fiduciary duties of loyalty and good faith against all defendants and unjust enrichment against the four members of the Dillard family and Stephens. On June 10, 2009, Berry filed his verified complaint in Pulaski County Circuit Court. In the complaint, Berry maintains that the compensation paid to the members of the Dillard family was exorbitant in view of the company’s financial condition. In awarding themselves such exorbitant compensation at the expense of the company and its shareholders, Berry asserted that the Dillard family board members had breached their fiduciary duties of loyalty and good faith. Stephens, Johnson, and Connor, members of the board’s compensation committee, were alleged to have breached their fiduciary duties to the company and its shareholders by approving the family members’ compensation. The complaint further alleges that Freeman, Haslam, Martin, Mori, and White, the remaining members of the board, breached their fiduciary duties by knowingly allowing the exorbitant compensation to continue and by failing to provide oversight as required by their positions.
Additionally, Berry contended that this compensation unjustly enriched the Dillard family board members.
The complaint further alleges that the Dillard family board members rewarded Stephens for approving their excessive compensation by making excessive and improper Inpayments to Stephens’s corporation, Stephens, Inc. Such excessive and improper payments were allegedly tunneled to Stephens, Inc., as payment for Stephens, Inc.’s assistance to Dillard’s, Inc., in evaluating Dillard’s options regarding its partial ownership of CDI, Inc., a general contractor. Berry asserted that the decision to retain Stephens, Inc., was made without any input or approval from the board and that the non-Dillard family members of the board failed to evaluate the agreement. The decision to , retain Stephens, Inc., was presented by Berry as evidence that the board members violated their fiduciary duties. Berry further applied this allegation to support his unjust enrichment claim against Stephens.
In the complaint, Berry pled presuit demand futility, alleging that a presuit demand would be futile because the “Board could not independently or disinterestedly consider whether to bring the allegations alleged.... ” Berry identified reasons specific to each defendant as to why a presuit demand would be futile. Among such alleged reasons were familial ties, business ties, professional ties, direct oversight of the corporate misconduct, direct participation in the corporate misconduct, failure to remedy the corporate misconduct, authorization or acquiescence in the corporate misconduct, employment with Dillard’s, the likelihood of liability, the possible lack of insurance coverage, the possible resulting civil actions, and the domination and control of the Dillard family over the other board members.
The directors responded to the complaint with a motion to dismiss. Two grounds were asserted for dismissal: (1) the failure to plead particularized facts demonstrating that demand would have been futile, and (2) the failure to state a claim against the directors because the |4Restated Certificate of Incorporation eliminates the personal liability of directors to the company for the claims asserted in the complaint.
In response, Berry asserted that there was reason to doubt that the Dillard family board members, Warren Stephens, or James Freeman could be independent or disinterested and, therefore, demand was futile as to those directors. Berry also asserted that the demand requirement was excused as to the claims of corporate waste and unjust enrichment. Finally, Berry argued that the complaint stated proper claims under Ark. R. Civ. P. 12(b)(6).
The Circuit Court’s Ruling
The circuit court held a hearing on the motion to dismiss on February 5, 2010. At the conclusion of the hearing, the court ruled from the bench and granted the directors’ motion to dismiss. The court found that the complaint failed to allege sufficient facts creating a reasonable doubt that the eight members of the board who were not members of the Dillard family could exercise disinterested and independent judgment in considering a demand to bring the claims sought to be alleged in the complaint. The court’s written order was entered February 19, 2010. This appeal followed.
|sStandard of Review
We review a circuit court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.
Discussion
Although Berry argues seven points for reversal in his brief, we need not address all seven. The circuit court and the parties proceeded below as if the four members of the Dillard family were interested so that they could not objectively consider a demand made to them. The directors do not seriously argue otherwise. Moreover, Berry has abandoned his argument that outside directors James A. Haslam, III, Peter R. Johnson, Robert C. Connor, R. Brad Martin, Frank R. Mori, and Nick White are not unbiased and disinterested. We will, therefore, consider only the points relating to directors Warren Stephens and James Freeman, and the argument that Berry should be allowed to amend his complaint.
Dillard’s is incorporated under Delaware law and headquartered in Little Rock, Arkansas. In Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991), the United States Supreme Court explained that, in a shareholder-derivative suit, any demand requirement or exception thereto is deemed a matter of substantive law; thus, we apply Delaware law to resolve the substantive issues.
| fiGenerally, the management of the business and affairs of a Delaware corporation is entrusted to its directors, who are the duly elected and authorized representatives of the shareholders. Under normal circumstances, the business-judgment rule mandates deference to directors’ decisions, presuming that, in making a business decision, the directors of a corporation acted on an informed basis, in good faith, and with the honest belief that the action taken was in the best interests of the company. Aronson v. Lewis, 473 A.2d 805 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000).
A derivative action is a procedural device that permits shareholders to assert a claim belonging to the corporation and on the corporation’s behalf. Aronson, 473 A.2d at 811. Because such a suit impinges on the authority of a company’s board of directors over matters of corporate governance, including whether to litigate a claim on behalf of the corporation, Delaware, like most jurisdictions, requires that shareholders make a demand on the board to take action prior to filing suit. Rales v. Blasband, 634 A.2d 927, 932 (Del.1993); Aronson, 473 A.2d at 811-12. It is well settled that, to prosecute a derivative suit, shareholders must demonstrate either that a demand was made on the board and it was wrongfully refused or that demand should be excused because the directors are incapable of making an impartial decision regarding such litigation. Rales, 634 A.2d at 932.
The demand requirement serves three beneficial purposes. First, it requires the exhaustion of intracorporate remedies and provides an alternative-dispute-resolution process that may prevent the litigation altogether. Grimes v. Donald, 673 A.2d 1207, 1216-17 (Del.1996), overruled on other grounds by Brehm, 746 A.2d at 254. Second, if the derivative suit has |7merit, the presuit demand on the board allows the directors to control the proceedings. Id. Third, if the board -wrongfully refuses to initiate the action, the shareholder can then control the proceedings. Id. These alternative conditions precedent to the right to initiate derivative litigation under Delaware law provide a mechanism designed to deter frivolous and costly suits based solely on suspicion or conclusory allegations, while simultaneously affording shareholders who can allege sufficient particularized facts access to the courthouse. Aronson, 473 A.2d at 809-10.
The present case implicates the futility exception to the requirement of presuit demand on the board. The Delaware Supreme Court has set forth two different standards to apply to the various decisions or non-decisions a board may make. For conscious board decisions, whether to act or not, the two-pronged Aronson test applies. The first prong of the futility rubric is “whether, under the particularized facts alleged, a reasonable doubt is created that ... the directors are disinterested and independent.” Aronson, 473 A.2d at 814; see also id. at 816 (holding that “[independence means that a director’s decision is based on the corporate merits of the subject before the board rather than extraneous considerations or influences”). The second prong is whether the pleading creates a reasonable doubt that the challenged transaction was otherwise the product of a valid exercise of business judgment. Aronson, 473 A.2d at 814. These prongs are in the disjunctive. Therefore, if either prong is satisfied, pre-suit |sdemand is excused. A board’s failure to act absent a conscious decision to refrain from acting," such as a failure to supervise, is analyzed under Bales. The Bales court articulated the analysis as follows:
[A] court must determine whether or not the particularized factual allegations of a derivative stockholder complaint create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand. If the derivative plaintiff satisfies this burden, then demand will be excused as futile.
Id at 934. An evenly divided board satisfies the requirement that a majority of the board is unable to consider a demand impartially. See Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1046 n. 8 (Del.2004) (citing Beneville v. York, 769 A.2d 80, 85-86 (Del.Ch.2000)). “Demand futility analysis is conducted on a claim-by-claim basis.” Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 833 A.2d 961, 977 n. 48 (Del.Ch.2003).
In Brehm, swpra, the Delaware Supreme Court held that derivative-action pleadings “must comply with stringent requirements of factual particularity that differ substantially from the permissive notice pleadings governed solely by Court of Chancery Rule 8(a) [Rule 8(a) ]. Rule 23.1 is not satisfied by conclusory statements or mere notice pleading.” Brehm, 746 A.2d at 254 (emphasis added). Specifically, the Brehm court found that a plaintiff must sufficiently set forth with particularity “ultimate” or “elemental” facts. Id. Thereafter, the plaintiff would be entitled to “all reasonable inferences that logically flow from the particularized facts alleged, but conclusory allegations are not considered as expressly pleaded facts or factual inferences.” Id. at 255.
|9The Delaware Supreme Court has thus observed that the basis for claiming that demand is excused normally would be that “(1) a majority of the board has a material financial or familial interest; (2) a majority of the board is incapable of acting independently for some other reason such as domination or control; or (3) the underlying transaction is not the product of a valid exercise of business judgment.” Grimes, 673 A.2d at 1216.
Presuit demand is excused by the Delaware courts when a derivative plaintiff establishes a reason to doubt the disinterestedness and independence of a majority of the board. Bales, 634 A.2d at 934; Aronson, 473 A.2d at 814. Thus, for his complaint to withstand a motion to dismiss, Berry must show that a majority of the board is both interested in the challenged transactions and lacking independence. He has failed to meet this test. He also appears to have conflated the two issues, which the Delaware Court of Chancery has noted are sometimes confused. See Orman v. Cullman, 794 A.2d 5, 25 n. 50 (Del.Ch.2002).
We analyze the allegations against directors James Freeman and Warren Stephens in turn. The complaint contains no allegations that Freeman is interested in either the compensation paid to the members of the Dillard family or the transactions between Dillard’s, Inc., and Stephens, Inc. In fact, Berry abandons his contention that Freeman is interested, focusing instead on the argument that Freeman is not independent by virtue of his employment as chief financial officer of'the corporation. The Delaware courts have held that the continued employment and compensation of one serving as both a director and a corporate officer can raise a reasonable doubt as to the director’s independence for purposes of acting upon a demand. Rales, 684 A.2d at 937; see also Beam, 833 A.2d at 977-78. Contrary | into the directors’ arguments, Berry has, in fact, raised a reasonable doubt as to Freeman’s independence by alleging that Freeman’s employment as an officer and director of the company was his principal employment and, therefore, material to Freeman. Such fact, however, does not mandate reversal of the circuit court’s dismissal of Berry’s complaint because Berry has not shown that a majority of the board is both interested and lacking independence.
Director Warren Stephens presents a different analysis. First, Stephens stands on both sides of the transactions between Dillard’s, Inc., and Stephens, Inc. The Aronson court defined interest as “meaning that directors can neither appear on both sides of a transaction nor expect to derive any personal financial benefit from it in the sense of self-dealing, as opposed to a benefit which devolves upon the corporation or all stockholders generally.” 473 A.2d at 812; see also Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 362 (1993). Self-interest alone, however, is not a disqualifying factor, even for a director. Cede & Co., 634 A.2d at 363. There must be evidence of disloyalty such as the motives of entrenchment, fraud upon the corporation or the board, abdication of directorial duty, or the sale of one’s vote. Id. No such allegations are made in Berry’s complaint.
Also absent from the complaint are any allegations that Stephens is not independent of the members of the Dillard family. The Delaware Supreme Court has held that the mere allegation that directors are dominated and controlled does not raise, per se, a reasonable doubt as to the board’s independence and thus will not suffice to meet the demand-futility standard. Heineman v. Datapoint Corp., 611 A.2d 950, 955 (Del.1992). Rather, the plaintiff |1T“must advance particularized factual allegations from which the Court of Chancery can infer that the board members who approved the transaction are acting at the direction of the allegedly dominating individual or entity.” Id.; see also Orman, 794 A.2d at 25 n. 50 (defining the factors that would potentially make a director not independent). A plaintiff seeking to advance such contentions must establish that there exists “a nexus between the domination and the resulting personal benefit to the controlling party.” Heine-man, 611 A.2d at 955. The complaint contains no allegations that the Dillard family board members orchestrated or directed that a majority of the board support the transactions. In addition, there are no allegations that Stephens, a member of the board’s compensation committee, controlled or directed the other two members of the committee so that Stephens directed said members in approving the allegedly excessive compensation of the members of the Dillard family. As a result, the factual allegations of Berry’s complaint are deficient. Heineman, 611 A.2d at 955.
While there are allegations in the complaint of quid pro quo transactions between Dillard’s and the Stephens entities, there are no factual allegations showing that the transactions were in any way tied to each other or to the compensation paid to the members of the Dillard family, or that the Dillard family board members orchestrated the decision to enter into the transactions with the Stephens entities. The complaint also contains no allegations that the transactions between Dillard’s and the Stephens entities were not in the best interest of Dillard’s, Inc., or its shareholders. Nor are there any allegations that the Stephens entities did not competently perform the services rendered or that they were paid excessive fees for such services.
| ^Because Berry’s allegations are con-elusory, the complaint fails to properly plead a basis showing that the demand would be futile. As such, the circuit court properly dismissed Berry’s complaint.
We must address Berry’s alternative argument that he should be allowed to amend his complaint to properly allege demand futility. Such matter is governed by Arkansas procedural law. Berry is correct that, when a complaint is dismissed for failure to state facts upon which relief can be granted, the dismissal should be without prejudice. Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 245 S.W.3d 115 (2006). Such rule has no application under the circumstances of this case, however. Upon the dismissal of the complaint, a plaintiff has the election to either plead further or appeal. Id. If an appeal is taken, the option to plead further is waived in the event of an affirmance. Id. The reasoning behind this exception is that, once the case is dismissed for failure to state sufficient facts and is then affirmed on appeal, nothing remains to be amended. Here, Berry chose to appeal and thus waived his right to amend his complaint.
Delaware law is in accord. In White v. Panic, 783 A.2d 543 (2001), the Delaware high court noted that shareholder “[p]lain-tiffs may well have the ‘tools at hand’ to develop the necessary facts for pleading purposes,” including the inspection of the corporation’s books and records under Del. Code Ann. tit. 8, § 220 (Supp.2010); 783 A.2d at 549 n. 15. The White court also discussed the rationale behind the rule that a dismissal for failure or inability to properly plead the basis for demand futility is normally with prejudice:
The policy against permitting stockholder plaintiffs to amend their complaints after an unsuccessful appeal encourages the plaintiff to investigate their claims before | isfiling a complaint so that they have a basis at the outset to make particularized factual allegations in the complaint. In contrast, if plaintiffs were granted leave to amend after an unsuccessful appeal, plaintiffs would have a reduced incentive to ensure that their original complaints are complete from the start.
783 A.2d at 555-56.
Affirmed.
VAUGHT, C.J., and GLADWIN, J., agree.
. These officers and directors are appellees William Dillard, II, James I. Freeman, Alex Dillard, Mike Dillard, Drue Matheny, James A. Haslam, III, Peter R. Johnson, Robert C. Connor, R. Brad Martin, Frank R. Mori, Warren A. Stephens, and Nick White. William Dillard, II, Alex Dillard, Mike Dillard, and Drue Matheny are siblings. Freeman and the Dillard family members are also executives of the company.
. The directors also filed a motion seeking to stay discovery until their motion to dismiss was disposed of because, as they argued in their brief supporting the motion, Berry was not entitled to discovery in order to demonstrate futility. There is no issue concerning the stay of discovery raised in this appeal.
. Although Berry raised these claims in his complaint, he does not pursue the claims on appeal. To the extent he alleges that presuit demand was excused as to these claims, Berry fails to provide any argument or citation to authority. Because the validity of his assertion is not apparent without further research, we decline to address the issue. See, e.g., Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817.
. The actual text in Aronson uses the word "and,” but the test clearly was not intended to be conjunctive, as the analysis adopted in the opinion demonstrates. Subsequent decisions have made it clear that the test is disjunctive. See Brehm, 746 A.2d at 256; Rales, 634 A.2d at 933. | [
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JOHN B. ROBBINS, Judge.
| Appellant Keith Laron Newton was convicted in a jury trial of possession of cocaine with intent to deliver, possession of drug paraphernalia, and compounding. He was sentenced to concurrent prison terms of thirty, three, and five years. On appeal, Mr. Newton challenges the sufficiency of the evidence to support each of his convictions. He also argues that the trial court erred in denying his motion for continuance that he made on the day of trial. We affirm.
We consider sufficiency of the evidence before addressing other alleged trial errors. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a | {¡conclusion and pass beyond suspicion and conjecture. Id. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). In considering the evidence, we will not weigh the evidence or assess credibility, as those are questions for the finder of fact. Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005).
Officer Thomas Miller of the Warren Police Department testified that on February 2, 2010, he received a report of some unlawful activity in a backyard at the corner of Rock and Kelly streets. In response to the report, officers were dispatched to the area.
Officer Terrance Moore was sent to the scene at the corner of Rock and Kelly, and when he arrived he observed five people in the yard and a black truck. Officer Moore indicated that the people were ordered to the ground, and that everyone except Keith Newton complied. Mr. Newton ran down the street and two officers chased him. Meanwhile, other officers conducted an inventory search of the black truck, which Mr. Newton had been driving that day, and the truck was towed.
Officer Timothy Nichols testified that he chased Mr. Newton in his patrol car, while Officer Michael Warren chased appellant on foot. Officer Nichols indicated that he caught up with Mr. Newton and Officer Warren, who were engaged in a confrontation. Officer Nichols testified that Mr. Newton was holding a white paper bag in his left hand. Officer Warren was telling Mr. Newton to get on the ground, but Mr. Newton refused. Due to |sMr. Newton’s refusal to cooperate, Officer Nichols sprayed him with pepper spray. At that time, Mr. Newton dropped the paper bag and the police were able to handcuff and arrest him. Officer Nichols testified that he took possession of the paper bag and it contained four baggies of a white, rock-like substance. On the ground near the paper bag was a set of digital scales. Upon searching Mr. Newton, Officer Nichols found $2034 in cash in Mr. Newton’s front pants pocket. The contents of the white paper bag were transported to the police station and then sent to the crime lab, where a chemist confirmed the presence of more than fifty-two grams of a cocaine-based substance. When searching Mr. Newton’s truck, the police found $3288 in cash.
Officer Warren testified about his pursuit of Mr. Newton and their confrontation. Officer Warren stated that while he was chasing Mr. Newton he saw something in his left hand. When Officer Warren caught up with Mr. Newton, he observed a white paper bag and a dark-colored square object in Mr. Newton’s left hand, and Mr. Newton began swinging at the officer with his right hand. Officer Warren testified:
As he swung at me and I told him to get on the ground, I struck him with my asp baton on the left leg, which had no effect on him. That’s when he made the statement that he couldn’t go down like this. He said he had five thousand dollars if I would just turn around and let him go. I gave him another command to get on the ground, then he swung at me again. I struck him with my asp baton again, which had no effect. He used the phrase five G’s, which I took to mean five thousand dollars.
Officer Warren testified that when Mr. Newton started to come at him again, Mr. Newton was pepper sprayed by Officer Nichols and dropped the items he had been carrying in his left hand.
14Mr. Newton testified on his own behalf, and he said that on the day at issue he was afraid because “the officer got out, waving guns and I didn’t know what was going on.” Mr. Newton testified that he and his wife had recently deposited their income tax refund of more than $6000 into their bank account. Mr. Newton stated that on February 2, 2010, he did not possess drugs.
Mr. Newton’s first argument on appeal is that there was insufficient evidence to support his conviction for possession of cocaine with intent to deliver, which is made criminal by Ark.Code Ann. § 5-64-401 (Supp.2009). Mr. Newton acknowledges that both Officers Nichols and Warren testified that they observed him drop a white bag that was later found to contain a large amount of a cocaine-based substance. However, Mr. Newton contends that both of these witnesses were biased against him. While Officer Warren testified that Mr. Newton swung at him, this was not contained in Officer Warren’s report. Thus, Mr. Newton asserts that Officer Warren acted excessively in twice striking him with his baton. Moreover, Mr. Newton asserts that Officer Nichols’s action of pepper spraying him was inappropriate because at that time Mr. Newton was no longer running and was not fighting with the officers. Mr. Newton argues that because of Officer Nichols’s and Officer Warren’s bias, the jury should have disregarded their testimony. Appellant asserts that without the testimony of these witnesses, the jury was left to speculation and conjecture in reaching its decision that he possessed cocaine with intent to deliver.
|KMr. Newton’s first argument is unavailing. While he questions the credibility of the arresting officers, that is a matter for the jury’s consideration. See Woods, supra. Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008). Moreover, a jury is not required to believe the defendant’s version of events because he is the person most interested in the outcome of the trial. See Springston v. State, 61 Ark.App. 36, 962 S.W.2d 836 (1998).
In this case the jury was free to credit the testimony of Officers Nichols and Warren, and both officers testified that Mr. Newton ran from the police and attempted to avoid arrest. Evidence of flight to avoid arrest may be considered by the jury as corroborative of guilt. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). Upon being apprehended, Mr. Newton dropped a set of digital scales and a bag containing more than fifty-two grams of cocaine. There is a rebuttable presumption of intent to deliver if the amount of cocaine is in excess of one gram. See Ark.Code Ann. § 5-64-401(a) (Supp. 2009). The police also found more than $2000 in cash on appellant’s person and more than $3000 in the truck he was driving. Viewing the evidence in the light most favorable to the State, there was substantial evidence to support the jury’s finding that Mr. Newton committed possession of cocaine with intent to deliver.
| nMr. Newton next challenges the sufficiency of the evidence to support his conviction for possession of drug paraphernalia. Arkansas Code Annotated section 5-64-403(c)(l)(A)(i) (Supp.2009) makes it unlawful for any person to possess, with intent to use, drug paraphernalia for certain unlawful purposes. Mr. Newton argues that there was no testimony upon which the jury could conclude that the digital scales entered into evidence could be considered drug paraphernalia. Mr. Newton submits that there was no evidence that such scales were used to weigh drugs or used for any other drug-related purpose. Therefore, Mr. Newton contends that this conviction was based on speculation or conjecture.
Mr. Newton’s second argument is not preserved for review because he did not raise this specific sufficiency argument below. See Davis v. State, 2009 Ark. App. 573, 2009 WL 2877625 (appellant must raise issue with specificity and make argument to the trial court for it to be preserved on appeal); see also Ark. R.Crim. P. 3B.1 (requiring motion for directed verdict to state “the specific grounds therefor”). In making his directed-verdiet motions below, appellant argued that the State failed to show that he had custody and control of the scales. He did not contend that the State failed to prove that the scales constituted drug paraphernalia.
Nonetheless, even had the argument been preserved, there was substantial evidence that the digital scales fit the statutory definition of drug paraphernalia. Pursuant to Ark.Code Ann. § 5-64-101(14)(B)(v) (Supp.2009), “drug paraphernalia” includes “a scale or balance used, intended for use, or designed for use in weighing or measuring a controlled substance.” _JjIn the present case, there was testimony that Mr. Newton possessed the digital scales along with large quantities of cocaine and cash. From this evidence the jury could reasonably conclude that the digital scales were intended to be used for weighing and measuring the cocaine.
Mr. Newton’s third challenge to the sufficiency of the evidence is directed toward his conviction for compounding. Arkansas Code Annotated section 5-54-107(a) (Repl.2005) provides:
(a) A person commits the offense of compounding if he or she:
(1) Solicits, accepts, or agrees to accept any pecuniary benefit as consideration for refraining from reporting to a law enforcement authority the commission or suspected commission of any offense or information relating to an offense; or
(2) Offers, confers, or agrees to confer a benefit and the receipt of the benefit is prohibited by this section.
Mr. Newton again contends that Officer Warren was a biased witness, and therefore asserts that the jury should have disregarded his testimony concerning this offense.
We conclude that there was substantial evidence to support appellant’s compounding conviction because, as stated earlier, it was for the jury and not this court to determine Officer Warren’s credibility. Officer Warren testified that Mr. Newton offered him $5000 to let him go without a charge, and this testimony satisfied the elements of the offense.
Mr. Newton’s final argument is that the trial court committed reversible error by denying his motion for a continuance. On the day of the trial, which was on June 30, 2010, Mr. Newton filed a motion for continuance, asserting:
IsOn or about June 22, 2010, a key defense witness suffered a stroke and was hospitalized at UAMS, in Little Rock. Yesterday, this witness had a set back in recovery due to a mild heart attack. His testimony is material to this case. Therefore, the above numbered case should be continued to some time after the witness’s release date.
The motion prayed that the jury trial be reset for not less than thirty days after the scheduled trial date.
At the outset of the proceedings on June 30, 2010, Mr. Newton orally argued his motion for continuance to the trial court. Mr. Newton asserted that his distant cousin, Jeremy Newton, was present when the police arrived on February 2, 2010, and that he could offer exculpatory testimony about where appellant was situated at the time the police arrived and what transpired after the police ordered everyone to the ground. Appellant asserted that he learned of Jeremy’s stroke just a couple of days before trial. The State made an objection based on the fact that the witness was not disclosed until the day of trial despite the State’s prior request for disclosure of defense witnesses. Mr. Newton acknowledged that he did not have any medical report documenting the condition of the proposed witness, nor did he issue a subpoena for the proposed witness.
In denying Mr. Newton’s motion for continuance, the trial court announced that Mr. Newton did not exercise due diligence and that there had already been substantial public expense in providing Mr. Newton his right to a jury trial set for that day. Mr. Newton now argues that he did exercise diligence, and that this was an abuse of discretion. Mr. Newton |0maintains that he was prejudiced by the denial of his motion for continuance because a key witness was unavailable to testify in his defense.
The grant or denial of a continuance is within the sound discretion of the trial court, and the decision will not be overturned absent an abuse of discretion amounting to a denial of justice. Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in a prompt disposition of the case. Ark. R.Crim. P. 27.3. The following factors are to be considered by the trial court in deciding a continuance motion: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996).
Applying the relevant factors to the circumstances of this case, there was no abuse of discretion in denying the continuance. The proposed witness was not subpoenaed and was not disclosed to the prosecution until the day of trial. Mr. Newton did not offer any specifics about the proposed testimony, stating only that the witness was there when the police arrived and that his testimony would be exculpatory. There was no demonstration that this witness, who had allegedly suffered a recent stroke and heart attack, would likely be procured if the trial were postponed. And finally, there was no affidavit filed contemporaneously with the |inmotion stating what facts the proposed witness would prove. The appellant later submitted an affidavit of Jeremy Newton, but this affidavit was not before the trial court when it ruled on the continuance motion. The affidavit was attached to a motion for bond pending appeal submitted two weeks after the notice of appeal was filed. And even had the affidavit been timely filed and presented to the trial court for consideration, it contained only a general assertion that Jeremy Newton believed that some other unspecified person possessed the drugs that day. On this record, we hold that there was no error in denying appellant’s continuance motion and that there was no resulting denial of justice.
Affirmed.
PITTMAN and GRUBER, JJ., agree. | [
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JOSEPHINE LINKER HART, Judge.
|, Glenda K. Vaughn appeals from the grant of summary judgment in favor of her automobile insurance company, Shelter Mutual Insurance Company (Shelter). The trial court ruled that Vaughn was not entitled to underinsured coverage. In support of its ruling, the trial court found that the policy was unambiguous as a matter of law. Further, it found that Vaughn failed to comply with the “ADDITIONAL DUTIES OF AN INSURED” requirements in her policy, which it opined were conditions precedent to coverage. On appeal, Vaughn raises two arguments. First, she asserts that, viewed in the light most favorable to her, the record contains evidence whereby a reasonable person could conclude that she complied with the Un-derinsured Motorist Endorsement of her policy because the record shows that she provided the specified 30 days’ notice; the trial court’s conclusion that Shelter objected to the settlement offer is of no legal significance; and the trial court erred in finding | .that the ADDITIONAL DUTIES provisions are unambiguous and created a condition precedent. Second, in the alternative, Vaughn argues that the trial court erred in applying Fireman’s Fund Ins. Co. v. Care Management, Inc., 2010 Ark. 110, 361 S.W.3d 800, “retrospectively” to the case at bar. Although we find error in some of the trial court’s findings, we nonetheless conclude that this case must be affirmed.
It is appropriate for a trial court to grant summary judgment when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Scott Street Townhouses, LLC v. Underwriters at Lloyd’s London, 2010 Ark. App. 773, 2010 WL 4638166. On appellate review, we must determine whether summary judgment was proper based on whether the evidence presented by the moving party, viewed in the light most favorable to the party resisting the motion, left a material fact unanswered. Id. Where there are no disputed material facts, our review must focus on the trial court’s application of the law to those undisputed facts. Id.
The legally significant facts are not in dispute. On June 14, 2005, Vaughn was injured in an automobile accident caused by the negligence of Juanita Patton. The car that Juanita was driving was owned by Harlon Patton and insured by State Farm. State Farm settled for policy limits and sent a check dated June 10, 2008, to Vaughn. By letter dated July 31, 2008, Vaughn’s attorney sent Shelter the draft of the settlement from State Farm, a schedule of her medical bills, the accident report, and a request for underinsured coverage. Shelter, through its claims department representative, Missy Pledger, responded that it had no prior notice of lathe accident, but agreed to investigate further, but under a reservation of rights, contending that notice of the accident was a condition of coverage. Vaughn concluded her case against the Pattons on August 28, 2008, when an order was entered in Scott County Circuit Court dismissing the case with prejudice.
Vaughn filed suit against Shelter on April 14, 2009, alleging breach of contract. Shelter moved for summary judgment, asserting that Vaughn agreed to settle with Patton without giving the notice to Shelter that was required under the policy. Shelter referred to this notice as a “condition precedent” to coverage. Shelter also asserted that Vaughn failed to comply with two other notice requirements, by 1) failing to give Shelter “prompt notice” of the accident; and 2) failing to “immediately” give written notice of making a claim for damages against Patton, because uncompensated damages may have been payable. Significantly, Shelter asserted that it was entitled to only “substantial compliance” with these provisions. Attached to Shelter’s summary-judgment motion was an affidavit from Missy Pledger in which she asserted that Shelter received no notice of the accident until Vaughn contacted them by telephone on July 31, 2008, and it subsequently received the certified letter from Vaughn’s attorney.
Vaughn opposed Shelter’s summary-judgment motion by asserting that on June 14, 2005, at 2:45 p.m., she reported the accident to Shelter through her agent Steve Jones. She attached an affidavit to that effect as well as a copy of her phone records. Vaughn also asserted that she had complied with the notice provisions regarding her proposed settlement with the RPattons. She stated that the notice was sent by certified letter on July 21, 2008, and Shelter did not object within thirty days. Vaughn also argued that the underinsured provisions of her policy were ambiguous because there were two conditions precedent, the exhaustion of all liability coverage and giving notice of a tentative settlement. Vaughn also argues that summary judgment was not appropriate because Shelter was not prejudiced by her acceptance of a settlement of Patton’s policy limits.
In granting summary judgment, the trial court acknowledged that there may be an issue of fact as to whether Vaughn gave notice of the accident to Shelter. However, it found that the duties required of her under the “ADDITIONAL DUTIES OF AN INSURED” — providing Shelter with copies of the summons, petition, complaint or “other process” immediately upon filing — were conditions precedent to coverage. Further, it found that Shelter’s dispute about proper notice of the accident was “an objection sufficient to put any ‘tentative’ settlement on hold until the issue of proper notice of the accident could have been shown to [Shelter].” Vaughn timely appealed.
For expediency, we consider Vaughn’s second argument concerning the applicability to the case at bar of our supreme court’s recent decision in Fireman’s Fund Ins. Co. v. Care Management, Inc., supra, “retrospectively” to the case at bar. We agree with Shelter that it was not new law but reaffirmance of century-old precedents. Accordingly, we find the following holding to be binding authority:
| tj[A]n insured must strictly comply with an insurance policy provision requiring timely notice where that provision is a condition precedent to recovery. Failure to do so constitutes a forfeiture of the right to recover from the insurance company, regardless of whether the insurance company was prejudiced by the failure. On the other hand, if notice is not a condition precedent, the insurance company must show it was prejudiced by any delay in notice in order to be relieved of liability.
Id. We note that this rule of law is in harmony with Shelter Mutual Insurance Company v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992).
We now turn to Vaughn’s argument concerning the appropriateness of summary judgment in this ease. First, she argues that, viewed in the light most favorable to her as the party resisting summary judgment, the record contains evidence whereby a reasonable person could conclude that she complied with the Underinsured Motorist Endorsement of her policy. She asserts that the only notice requirement that was a condition precedent was found in the section of her policy entitled “Substitution of Coverages.” Pursuant to that section, she was required to provide only notice of settlement, which she claims to have done through her July 21, 2008 certified letter to Shelter. Vaughn notes that under her policy, the settlement is not concluded until the tort-feasor is released. The Pattons were not released until the August 28, 2008 order of dismissal was entered. She acknowledges that the trial court concluded that Shelter “objected” to the settlement, but she asserts that this conclusion has no legal significance because the policy did not specify a right or remedy in that event. We find this argument to be unpersuasive.
Vaughn’s assertion that she complied with the policy’s requirement that she notify Shelter thirty days prior to settlement is contradicted by the transmittal letter, which was dated | r,July 31, 2008. Vaughn provided no other proof in the record regarding when she notified Shelter of her pending settlement. Accordingly, Vaughn has failed to refute Pledger’s affidavit that alleges that Shelter did not receive notice of the settlement until Vaughn’s July 31, 2008 phone call. Even resolving all issues in the light most favorable to Vaughn as the non-moving party, as we must, we conclude that Vaughn provided, at best, twenty-eight days’ notice to Shelter prior to the effective date of settlement of this case.
In our review, we next consider the consequences of the lack of a full thirty days’ notice. Rules of interpretation for insurance contracts require that they be construed strictly against the insurer, but where language is unambiguous, and only one reasonable interpretation is possible, it is the duty of the courts to give effect to the plain wording of the policy. Prock v. Southern Farm Bur. Cas. Ins. Co., 99 Ark.App. 381, 260 S.W.3d 737 (2007). Ambiguous terms within an insurance policy should be construed against the insurer. Id. However, the terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid. Id. Language of an insurance policy is to be construed in its plain, ordinary, and popular sense. Id. The different clauses of a contract must be read together, and the contract should be construed so that all parts harmonize. Id. Construction that neutralizes any provision of a contract should never be adopted if the contract can be construed to give effect to all provisions. Id.
Here, the only applicable condition precedent found within the insurance contract was the duty to inform of a proposed settlement offer. Within the underinsured motorists endorsement, the paragraph titled “EXCLUSIONS” states in pertinent part:
17This Coverage does not apply:
(5) To any damages or uncompensated damages for which the insured or the insured’s legal representative, has released any tortfeasor without giving us the notice required by the section of this Coverage headed SUBSTITUTION OF COVERAGES and allowing us the time stated to respond.
Under the referenced SUBSTITUTION OF COVERAGES section, it states:
If a tentative settlement for the insured damages has been reached between the insured, a tortfeasor, and the tortfea-sor’s liability insurer, written notice may be given by the insured to us.
(2) If that insured elects not to give us such notice, and concludes such tentative settlement by releasing any tortfeasor, no insurance is provided under this coverage.
As noted previously, we concluded that Vaughn failed to satisfy this condition.
While we agree with Vaughn that the trial court erred in finding that Shelter “objected” and that its objection had legal significance, we do not believe that this error affects the disposition of this appeal. The SUBSTITUTION OF COVERAGES section sets out Shelter’s rights in the event of a proposed settlement by its insured. These stated rights are limited to deciding whether it desired to make substitute payments to the insured. Nowhere is it stated that an “objection” to a settlement is a barrier to Vaughn’s right to underinsured coverage.
Likewise, while we also agree with Vaughn’s argument that the trial court erred in finding that she failed to fulfill a condition precedent by failing to send Shelter copies of her pleadings, it does not change the disposition of the appeal. While it is true that under the section titled “ADDITIONAL DUTIES OF THE INSURED” there is a requirement that _[iVaughn or her legal representative forward to Shelter copies of all pleadings in the event it files suit, the plain wording of the policy does not condition coverage on fulfilling this condition. This omission stands in stark contrast to the previously discussed condition precedent associated with the requirement to give notice of a tentative settlement. Moreover, Shelter itself did not assert that this duty was a condition precedent to coverage. Accordingly, under Fireman’s Fund, Ins. Co. v. Care Management, Inc., supra, Shelter would have to show prejudice to be afforded relief for breach of this condition. Shelter did not assert that it was prejudiced by Vaughn’s failure to fulfill this duty. However, the trial court’s erroneous conclusion regarding this breach of duty by Vaughn does not alter the fact that she failed to satisfy the above-discussed condition precedent.
Affirmed.
WYNNE and BROWN, JJ„ agree.
. As noted previously, the letter was dated July 31, 2008. | [
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RAYMOND R. ABRAMSON, Judge.
|! Delaplaine Farm Center (Delaplaine) appeals from an order of the Arkansas Workers’ Compensation Commission awarding benefits to Ralph Crafton. The Commission found that Crafton had suffered a compensable, unexplained fall from the cab of an auger truck, resulting in broken ribs and a crushed vertebrae. De-laplaine disagrees with the Commission’s conclusion, contending that Crafton’s injuries were caused by an idiopathic event— acute renal failure — and, as such, his injuries were completely unrelated to his work and not compensable. Because there is substantial evidence to support the Commission’s finding of a compensable injury, we affirm.
On June 26, 2009, Ralph Crafton was sitting in the cab of his auger truck awaiting the return of a loader truck so he could fill it with fertilizer. When he saw the loader truck return, he stood up to get out of the cab. Crafton’s next recollection was of walking to the 12back of the truck, turning on the auger, and falling to his knees. He did not remember falling from the truck.
Crafton was airlifted to a hospital in Memphis. Upon examination, it was discovered that he had sustained fractures to his back and ribs. His lab results indicated that his creatinine levels were extremely high, indicating acute renal insufficiency. While his initial medical reports indicated a history of chronic renal disease, Crafton’s primary care physician denied he suffered from any such condition. Later medical records indicated that, as his creatinine levels had eventually normalized, Crafton had actually suffered from acute, rather than chronic, renal insufficiency.
Crafton subsequently filed a claim for benefits, which Delaplaine controverted. A hearing was held before the administrative law judge (ALJ) on February 5, 2010.
At the hearing, Crafton testified that he was working for Delaplaine on June 26, 2009, when he apparently fell out of the cab of his truck. He claimed that he remembered standing up to get out of the truck, but had no recollection of actually getting out of the truck or of falling. The next thing he remembered was walking around the back of the truck. He did not realize he had fallen until he saw gravel marks on his hand when he turned the wheel to open the hoppers at the back of the truck. When he turned the wheel, he fell to his knees because of the pain in his back.
Crafton admitted that he used alcohol on occasion, that he had been fired from previous jobs for drinking or being intoxicated, and that he • would occasionally buy vodka on |ahis way home from work; yet he denied any alcohol use on the date in question. He stated that the accident occurred on a Friday at the end of a long and tiring week and that he was generally working thirteen to fourteen hour days. He stated that the temperature on the day of the accident was in the nineties but that he was sitting in the shaded portion of the cab. Crafton stated that he was drinking water and Gatorade and denied feeling dehydrated. While he had previously been diagnosed with high blood pressure and was on medication for that condition, medical reports indicate that he was hypoten-sive after the accident. Crafton also admitted having dizzy spells on occasion, but denied ever passing out or losing time.
Teresa Ann Prince testified that she observed Crafton prior to his accident. She stated that he was a “really white, grayish, pallid color with bluish around his lips” and that he did not look like he felt well. She had previously worked in a hospital and as an EMT and was concerned for him. She told him to get some wet towels, but he assured her that he was okay. She testified that abnormally high creatinine levels can be caused by several things and that alcoholism could be a factor.
Dr. Greenman, an internal medicine specialist, reviewed Crafton’s medical records. Dr. Greenman opined:
There is little doubt that he had acute renal failure. The available record does not support a diagnosis of chronic renal failure. What is the question is the mechanism of his acute renal failure. Although renal consultant comments that the diagnosis is acute renal failure due to rhabdomyolysis, no record of myoglovin levels is present. However, the CPK was very high at 1032, supporting this diagnosis. Presuming normal pre-existing renal function, acute renal failure by any mechanism would require 3-4 days for the creatinine to climb from 1.1 up to 7.8. This simply did not happen within a few hours or even a whole day.
l4If, in fact, there is documentation that the injury occurred immediately prior to admission to the hospital, then there had to have been an incident or circumstance which occurred in the time frame of 3-4 days before the report of injury which was actually the underlying cause of the renal failure.
In my opinion, there must be a part of the story that has not been told. It is interesting that he has a prior history of alcohol abuse. It is not uncommon to see rhabdomyolysis with renal failure following alcohol induced unconsciousness.
Dr. Troxel, Crafton’s primary care physician and a relative of Crafton, provided the following opinion on August 19, 2009:
Ralph Crafton has been a patient of mine for over 10 years, and has been in my family for 38 years. He has contacted me because of concerns over a Workers’ Compensation claim that an accident that occurred in June of 2009 was due to a pre-existing condition with his kidneys. His lab findings from September 3, 2009 showed a BUN of 15 and a serum creatinine of 1.1. In all my years of providing him care, prior to his injury he never had any evidence of renal disease. He does have a history of well controlled hypertension, which certainly can cause renal impairment over time, but his pressures were always noted acceptable and his compliance with medical treatment was always outstanding. Certainly a fall with a resultant fracture in an otherwise healthy man is not related to any pre-existing condition.
Mr. Crafton suffered a fall on 6/26/09 which resulted in a T4 vertebral body fracture with associated rib and pedicle fractures. As a result of the fall and associated muscle injury, Mr. Crafton’s creatinine rose to a level of 7.8 indicating a NEW CONDITION, Rhabdomyo-lysis, unrelated to any previous conditions. Mr. Crafton was monitored closely and hydrated, which resulted in the creatinine levels returning to normal and underwent spinal surgery on 7/6/09. He did well with surgery, and continues to do well after surgery with continued acceptable renal function.
None of the events from this injury are related to a hypothesized pre-existing renal condition. This injury resulted in muscle damage which resulted in renal impairment which was treated with hydration and time and resulted in return of normal renal function.
15After reviewing additional information provided by Dr. Troxel, Dr. Greenman gave the following opinion:
I have reviewed the additional information provided by Dr. Troxel. There is no evidence to support anything other than acute renal insufficiency. Rhabdomyolysis is an acute or subacute condition which can be caused by trauma but is usually related to prolonged pressure on muscle tissue such as occurs when unconscious or otherwise immobilized. Muscle enzyme elevation can be present within hours.
His blood pressure levels would not be relevant to rhabdomyolysis. Potassium elevation usually occurs later in the course of rhabdomyolysis and would be somewhat dependent on what the baseline was prior to injury.
As stated in my previous report, I think it is very clear that his problems preexisted the accident. For a creatinine level to climb from a normal 1.1 up to 7.8 takes at least 3^4 days to happen. I don’t think that the evidence of peripheral vascular disease with aortic calcific and coronary calcification and mierovas-cular changes have anything to do with the accident. They are incidental.
The ALJ found that Crafton’s injuries were compensable. Specifically, the ALJ found that the fall sustained by Crafton was the product of dehydration brought on by Crafton’s exposure to heat while discharging his. employment duties and was not idiopathic and awarded benefits. De-laplaine timely appealed to the Commission.
After conducting a de novo review of the record, the Commission affirmed the award of the ALJ, but on different grounds. The Commission found that Crafton’s injuries were due to an unexplained cause. The Commission stated that Crafton did not know why he fell from the cab of his truck, and that the medical evidence corroborated his testimony. The Commission further noted that none of the hospital records explain how or why Craf-ton fell hand sustained his injuries. The Commission specifically found that the evidence did not support Delaplaine’s assertions that Crafton blacked out and fell from his truck as a result of “renal failure.” While the Commission recognized that Dr. Greenman opined that “[tjhere is little doubt that [Crafton] had acute renal failure,” they noted that Dr. Troxel had concluded that “[n]one of the events from this injury are related to a hypothesized pre-existing renal condition.” The Commission then stated that “Dr. Troxel’s opinion is entitled to more evidentiary weight than the opinion of Dr. Greenman.”
Alternatively, the Commission found that, even if the fall was idiopathic in nature, the record shows that Crafton’s work on the auger truck increased the dangerous effect of the accident. Finally, the Commission found that there was no evidence in the record to support Dela-plaine’s assertion that the accident was caused by alcohol consumption. It is from this order that Delaplaine appeals.
Delaplaine first argues that the Commission’s determination that Crafton suffered a compensable injury is not supported by substantial evidence. More specifically, Delaplaine argues that the ALJ found and the Commission affirmed, without any medical evidence, that Crafton was dehydrated, resulting in a blackout that caused his fall.
This argument is misplaced because the Commission did not find that Crafton’s fall was caused by dehydration, the ALJ did. The Commission, while affirming the decision of the ALJ, affirmed on different grounds. It is a well-established principle of Arkansas law that the findings of the ALJ, unless expressly adopted by the Commission, are irrelevant for purposes 17of appeal. Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000); see Jones v. Tyson Foods, Inc., 26 Ark.App. 51, 759 S.W.2d 578 (1988). We are required by settled precedent to ignore the findings of the ALJ and restrict our review to the findings of the Commission. See Matthews, supra; see also Scarbrough v. Cherokee Enters., 306 Ark. 641, 816 S.W.2d 876 (1991); Stiger v. State Line Tire Serv., 72 Ark.App. 250, 35 S.W.3d 335 (2000). Thus, as our review is restricted to the findings of the Commission, Dela-plaine’s arguments as they relate to the ALJ’s findings are irrelevant.
Delaplaine next argues that Crafton’s injuries were the result of an idiopathic fall. In arguing that the fall was idiopathic, Delaplaine relies on the opinion of Dr. Greenman, an internal medicine specialist, that Crafton was suffering from renal failure that pre-existed the fall and that the renal failure caused Crafton to black out and fall from the truck. They assert the Commission incorrectly relied upon the opinion of Dr. Troxel that Crafton’s renal failure was a new condition caused by the accident. Delaplaine notes that Dr. Troxel is not a specialist and had not treated Crafton since September 2008. As Dela-plaine’s fall was idiopathic in nature and not unexplained, they contend the Commission’s decision was in error.
In appeals involving claims for workers’ compensation, our court views the evidence in a light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Death & Permanent Total Disability Fund v. Legacy Ins. Servs., 95 Ark.App. 189, 235 S.W.3d 544 (2006). Substantial evidence exists if reasonable minds | scould reach the Commission’s conclusion. Foster v. Express Pers. Servs., 93 Ark.App. 496, 222 S.W.3d 218 (2006). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark.App. 428, 58 S.W.3d 853 (2001). When the Commission weighs medical evidence and the evidence is conflicting, its resolution is a question of fact for the Commission. Green Bay Packaging v. Bartlett, 67 Ark.App. 332, 999 S.W.2d 695 (1999).
The Arkansas Supreme Court has distinguished injuries suffered from unexplained causes and injuries sustained from idiopathic causes:
We first note that injuries sustained due to an unexplained cause are different from injuries where the cause is idiopathic. An idiopathic fall is one whose cause is personal in nature, or peculiar to the individual. 1 LARSON, WORKERS’ COMPENSATION LAW, §§ 12.11 (1998); See also Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996); Little Rock Convention & Visitors Bur. v. Pack, 60 Ark.App. 82, 959 S.W.2d 415 (1997); Moore v. Darling Store Fixtures, 22 Ark.App. 21, 732 S.W.2d 496 (1987). Because an idiopathic fall is not related to employment, it is generally not compensable unless conditions related to employment contribute to the risk by placing the employee in a position, which increases the dangerous effect of the fall. LARSON, supra.
Whitten v. Edward Trucking/Corporate Solutions, 87 Ark.App. 112, at 116-17, 189 S.W.3d 82 (2004) (quoting ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998)).
|⅛A workers’ compensation claimant bears the burden of proving that his injury was the result of an accident that arose in the course of his employment and that it grew out of, or resulted from the employment. Whitten, supra. “Arising out of the employment” refers to the origin or cause of the accident, while “in the course of the employment” refers to the time, place and circumstances under which the injury occurred. Whitten, 87 Ark.App. at 117, 189 S.W.3d at 85. When a truly unexplained fall occurs while the employee is on the job and performing the duties of his employment, the injury resulting therefrom is compensable. Id.
The Commission found that Craf-ton’s fall was unexplained and, therefore, compensable. Crafton testified that he did not know why he fell from the cab of his work truck. None of his treating physicians opined as to what caused him to lose consciousness and fall. While Dr. Greenman did opine that Crafton was suffering from renal failure at the time of the fall, Dr. Greenman never stated that the renal failure caused Crafton to lose consciousness and fall. In any event, Dr. Greenman’s conclusions were directly contradicted by Dr. Troxel, who stated that Crafton’s renal issues were not pre-exist-ing and were caused by the fall. The Commission expressly stated that it gave more weight and credibility to Dr. Troxel’s opinion over Dr. Greenman’s. The Commission is the ultimate arbiter of weight and credibility; it has the authority to accept or reject medical opinions, and its resolution of conflicting medical evidence has the force and effect of a jury verdict. Amaya v. Newberry’s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008); Wal-Mart Stores, Inc. v. Sands, 80 Ark.App. 51, 91 S.W.3d 93 (2002).
|inThus, accepting Dr. Troxel’s opinion as true — that Crafton’s renal insufficiency was caused by the fall, not the cause of the fall — the exact reason for the fall remains unexplained. Accordingly, the Commission correctly determined that Crafton’s injuries were compensable.
We also note that, even were we to determine that the fall was idiopathic rather than unexplained, Delaplaine still cannot prevail. The Commission specifically found that, even if Crafton’s accident and injuries resulted from an idiopathic cause, the record showed that Crafton’s work on the auger truck increased the dangerous effect of the accident. As Delaplaine has not challenged this finding, its claim must fail.
Affirmed.
GLOVER and HOOFMAN, JJ„ agree. | [
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McCurroch, J.,
(after stating the facts.) The testimony as to the financial condition of Stephen James at the time he executed the deed in question is conflicting, but we think by a fair preponderance his insolvency is established. It is shown that, in addition to the debt to appellees, he was indebted in a large amount to another firm of merchants in Memphis, Tenn., who were unable to collect anything from him, and whose debt remains unpaid. There is some evidence tending to establish the fact that he caused the conveyance to be executed to his children without any actual fraudulent intent, and under the honest belief that he was solvent and would be able to pay all his debts. He owned a large quantity of land, and perhaps expected to receive at some time sufficient sums from the sale of this land to pay his debts; but this hope was never realized. On the contrary, the lands upon which appellees held a lien as vendors were sold under decree, leaving him hopelessly insolvent. If he was in fact insol-, vent at the time, and voluntarily conveyed away his property without consideration, the conveyance is void as against creditors, even though he had no actual intent to defraud.
It is contended on behalf of appellants that the conveyance of lands by Stephen James to appellees on January 16, 1893, extinguished his debt to them, and that his notes for the price of the lands reconveyed to him by them was a new debt created subsequent to the conveyance to King. It 'is proved, however, that the conveyance to appellees was not in extinguishment of the debt, but as security therefor, and appellees must be treated as creditors whose debts existed at the time of the fraudulent conveyance. In a recent decision on this subject we said: “The conveyance must be judged according to the real intent of the parties. If there is a debt subsisting between the parties, and it is the intention to continue the debt, it is a mortgage; but if the conveyance extinguishes the debt, and the parties intend that result, a contract for a resale at the same price does not destroy the character of the deed as an absolute conveyance.” Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027. Applying the rule thus announced to the facts of this case as proved with reference to the conveyance, it must be treated as a mortgage.
But counsel for appellant say that appellees, by suing to foreclose the lien reserved in the quitclaim deed, elected to treat the original debt as having been extinguished, and are now estopped to assert that the conveyance was only a security. Not so. The form of the debt only was changed, and the suit was to foreclose the security on the land, and the position assumed in this suit is not inconsistent with their position in the former suit.
It is urged here that a portion of the land was the homestead of Stephen James, and that a conveyance thereof could not have been fraudulent. The proof is not sufficient to establish the homestead right. No reference is made in the pleadings to the homestead question, and no direct proof introduced to show that the land was the homestead of James. If it was in fact his homestead, it could easily have been proved; but no witness was asked a question calculated to elicit information on the subject. All that was said about it in the testimony came out incidentally. Witness King said that James spoke of redeeming a portion of the land which his home was on, in section twenty-seven. This is too vague to base a finding upon that the land was his homestead at the time he made the conveyance in question. If that fact had been relied upon, direct proof should have been introduced tending to establish it. Steele v. Robertson, 75 Ark. 228, 87 S. W. 117.
The recent case of Baldwin v. Williams, 74 Ark. 361, 86 S. W. 423, settles the question of limitations against the contention of appellant. ' We there held that there must be an actual adverse holding of the property for the statutory period before a creditor is barred of his right to set aside a fraudulent conveyance and subject the property to the payment of his debt, so long as the debt itself is not barred by limitation.
In this case the debt was not barred, and there is no proof of adverse occupancy. On the contrary, it appears that Stephen James, the debtor, remained in possession of the property until the commencement of this suit. The suit is not barred. . We find no error in the decree, and the same is affirmed. | [
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Battle, J.
On the 20th of April, 1904, Mountain Park Terminal Railway Company filed a petition for condemnation of a right of way through certain lands of W. H. Field and others. “The petition is in the usual form, alleging the incorporation of the railroad company; the route of said railroad; that its road is surveyed and located in Pulaski County; that the defendants are the owners of certain lands, which are described; that said lands are unimproved; that it has failed to obtain the right of way over the said land by an agreement with the owner thereof ,- that it is desirous of beginning work on its railroad; and asks the court to designate a sum of money to be deposited by plaintiff for the purpose of making compensation, etc., and that a jury be impaneled to ascertain the amount of compensation to which the owners of said land may be entitled, and that an appropriate order and judgment be entered, vesting the petitioner with a right of way one hundred feet in width through said land, etc. .
“Notice was only served on the defendants, notifying them that on a certain date the plaintiff would apply to the judge of the second division of the Pulaski Circuit Court for an order fixing the amount of the possible damages that would result from the construction of said railroad over the land of the defendant.”
On the 7th day of May, 1904, the defendant filed an answer as follows:
“The defendants deny the right of the plaintiff to maintain this condemnation proceeding, and say that the plaintiff was not organized in good faith for the purpose of building a railroad, nor for any public purpose, but is organized solely to carry out the private enterprise of one Charles M. Newton, who has subscribed for substantially all of the stock of said company. The fact is that on the south side of the Choctaw, Oklahoma & Gulf Railroad, along where the line of plaintiff is sought to be constructed, there is a high hill, composed entirely of stone, that is valuable for crushing into small fragments of stone, suitable for ballasting railroads, making macadam highways, the construction of concrete and other like purposes. The front of these hills cannot be utilized, because any rock blasted' from them would fall upon the track of the Choctaw, Oklahoma & Gulf Railroad; but at a point where the plaintiff seeks to condemn there is a narrow gorge, penetrating said hill, up which a railroad track can be built, for a short distance, but the part of said hills, adjacent to the right of way of said railroad, belongs to defendants, who contemplate the erection of a crushing plant in said gorge. A part more remote, and further up said gorge, belongs to said Newton, who also desires to put in a crusher; but said gorge is so narrow that, if a railroad track is constructed up said gorge, so as to reach the property of said Newton, it will preclude these defendants from the erection of any crusher for their own use, and will also destroy the value of the great rock deposits which they may possess in that vicinity. The sole purpose of said Newton in seeking to condemn a right of way is merely to traverse the defendant’s land in order to get to a crusher of his own, at the sacrifice of the property of these defendants. It is impossible to build said railroad, as laid out, because the grade up to the said property, known as Mountain Park, is so steep that no railroad train could be run upon any railroad that might be built. The said Newton has caused a railroad to be surveyed, only for a distance of about 1,700 feet, just far enough to bring it to the site of his proposed crusher, and at this point the railroad survey sinks to a depth of twelve feet, into the hill, and further progress is impossible. Defendants deny that said plaintiff ever contemplates building any further 01-doing more than to construct a switch to reach a crusher of said Newton, and they deny that any public purpose will be sub-served by 'the building of the proposed railroad. The railroad of the plaintiff is laid out to run from the city of Little Rock to said Mountain Park; but these defendants say this is merely a pretense and a scheme to perpetrate a fraud upon the law and upon this honorable court, and that the plaintiff has taken no steps to acquire the right of way, save the few feet that are necessary to reach from the Choctaw, Oklahoma & Gulf Railroad, to the site of the proposed crusher of the said Newton.”
Plaintiff filed a motion to strike the answer from the files of the court, and on the 21st of May, 1904, the court overruled the same. After hearing the evidence, the court found that the proposed construction is for private purposes, .and the right of eminent domain does not exist in this case, and dismissed the petition.
Did the court err in overruling the motion to strike the answer from the files?
The proceeding prescribed by statute for the condemnation of land for right of way for a railroad is special. Section 2947 of Kirby’s Digest provides: “Any railroad * * * company, organized under the laws of this State, after having surveyed and located its lines of railroad, * * • * shall, in all cases where such companies fail to obtain, by agreement with the owner of the property through which said lines of railroad * * * may be located, the right of way over the same, apply to the circuit court of the county in which said property is situated, by petition, to have the damages for such right of way assessed, giving the owner of such property at least ten days’ notice in writing of the time and place where such petition will be heard.” Section 2952 provides: “It shall be the duty of the court to impanel a jury of twelve men, as in other civil cases, to ascertain the amount of compensation which such company shall pay, and the matter shall proceed and be determined as other civil causes.” Section 2955 provides: “Where the determination of questions in controversy in such proceedings is likely to retard the progress of the work on or the business of such railroad company, the court, or judge in vacation, shall designate an amount of money to be deposited by the company.” Section 2954 provides: “In all cases where damages for the right of way for the use of any railroad company have been assessed in the manner hereinbefore provided, it shall be the duty of such railroad company to deposit with the court or to pay to the owners the amount so assessed, and pay such costs as may, in the discretion of the court, be adjudged against it, within thirty days after such assessment; whereupon it shall and may be lawful for such railroad company to enter upon, use and have the right of way over such lands forever.” From these statutes it appears that the sole object of the proceedings provided for by them is_to ascertain the damages that the railroad company shall pay for right of way. They seem to assume that the railroad company is entitled to the right of way upon making compensation for same.
In Neimeyer & Darragh v. Little Rock Junction Railway, 43 Ark. 111, the appellants sought to enjoin the railroad company from building its road along a certain alley and taking certain lots, alleging in their complaint “that the organization of the company was a fraud upon the State, in this, that it was not a bona fide company organized to build and operate a railroad company as pretended, but in effect a bridge company, taking the guise and semblance of a railroad company for the purpose of building, using, and deriving service from the bridge with the exemption from taxation accorded by statutes to the bridges of railroads,” etc. One of the questions in that case was, was not the appellants barred from maintaining their suit by the proceedings instituted by the railroad company for right of way ? The court said: “Nor is it at all clear to our minds that the appellants have a full, complete remedy at law, to be obtained by way of defense to the special proceedings in the circuit court for condemnation. The Junction Company, in all purely legal aspects, is a proper corporation, clothed with franchise of eminent domain to the extent of its necessities. The proceeding under our statutes is a special one, directed solely to the object of determining the compensation to be paid the owner of property proposed to be taken. No provision is made for any issue upon the right to condemn. It could not there be proved that the Junction Company was not a corporation. To attack its existence collaterally is not permissible. A plea in the nature of md tiel corporation would not be safe, in the face of complete articles of association. Besides, it is plain that the Legislature never contemplated any such defense as a want of right to condemn in the corporation. For, where the proceedings are liable to delay, it is made the duty of the court to fix a sum to be deposited by the company, and to allow the property to be taken and used, in anticipation of the settlement of damages.” See also Bentonville Railroad v. Stroud, 45 Ark. 280.
It follows, then, that the court erred in overruling plaintiff’s motion, and trying the issue presented by the defendants’ answer.
But are the defendants without a remedy? Property cannot be taken from its owner without his consent, even under an act of the Legislature, and appropriated solely and exclusively to the private use of another person or corporation. Courts have the power to determine whether a particular use for which private property is authorized by the Legislature to be taken is in fact a public use.' Shoemaker v. United States, 147 U. S. 298; Moore v. Sanford, 151 Mass. 285, 288; Welton v. Dickson, 22 L. R. A. 496, 500, 501; Chicago & Eastern Illinois Railroad Co. v. Wiltse, 116 Ill. 449; Cooley’s Constitutional Limitations (7th Ed.) 774; 1 Lewis, Eminent Domain (2d Ed.) 158; 3 Elliott on Railroads, 962. As an incident to this power, in the absence of a statutory remedy, a court of equity has the power to restrain a railroad corporation from taking property for a private use.
In Neimeyer & Darragh v. Little Rock Junction Railway, 43’Ark. 120, the court said: “Further, with regard to corporations not acting under special charters of legislative grant, but voluntarily organized under general laws, although their existence as corporations cannot be questioned collaterally, yet if they have resulted from fraudulent combinations of individuals to procure powers under circumstances and for purposes not within the scope and purpose of legislative intent, and the corporators, under shelter of their articles, are about to exercise powers oppressive to the individual, they may be restrained by private suit of those injured or about to be. Fraud has no immunity-anywhere in any guise. * * * This is the course that in this case has been pursued. We think that the chancery court properly entertained the bill, and had jurisdiction to enjoin the company, if the merits o.f the case required that relief.”
So, individuals cannot combine as a railroad corporation, and convert property of individuals solely and exclusively to their private use. That would be an abuse of the power to form such corporations under the statutes, and contrary to their spirit and intent, and “may be restrained by private suit by those injured or about to be.”
The judgment of the circuit court is reversed, and the cause is remanded, with leave to appellees to amend their answer so as to invoke equitable relief; and with directions to the court, when so amended, to transfer the cause to the proper chancery court. | [
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McCulloch, J.
This is an action for slander. The plaintiff (appellee) recovered judgment below, and the defendant (appellant) took an appeal to this court. Since the appeal was perfected, the appellant died, and his attorney, as amicus curiae, presents this motion to abate the cause. The appellee responds to the motion, and asks that the cause be revived against the administrator or executor of the deceased.
At common law actions of this kind abated with the death of either party, the wrongdoer or the party injured. “Actio personalis moritur cum persona” was a maxim of the common law. The statute of this State providing for revival of causes of action for wrongs done to the person expressly excepts from its operation actions for slander or libel, thus leaving the common-law rule in force as to those actions. Kirby’s Digest, § 6286. It does not follow, however, that after a verdict and judgment in favor of the plaintiff an action for slander or libel abates. On the contrary, we hold that the cause of action becomes merged in the judgment, and, unless the same be set aside or reversed, there can be no abatement. This view is sustained by authority. Newellon Slander and Libel, p. 375; 21 Enc. of Pl. & Pr. p. 351; Dial v. Holter, 6 Ohio St. 228; Ackers v. Ackers, 16 Lea (Tenn.), 7.
An appeal and supersedeas do not have the effect of vacating a judgment, but only stay proceedings, thereunder. Fowler v. Scott, 11 Ark. 675; 2 Cyc. p. 971; 20 Enc. Pl. & Pr., p. 1240; Runyon v. Bennett, 4 Dana, 599; Low v. Adams, 6 Cal. 277; Martin v. South Salem Land Co., 94 Va. 28; Fawcett v. Superior Court, 15 Wash. 345.
The motion to abate is therefore overruled. | [
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Hxuu, C. J.
Joseph H. Jackson died, leaving a widow, Sallie B. Jackson, nee Moore, and three minor children, Jami-son A. Jackson, Martha Jackson and Lida Jackson. He left $8,000 in insurance to his wife. Mrs. Jackson was possessed of real estate, consisting of farm and other property in Phillips County. Mrs. Jackson, some years after her first husband’s death, married Fred W. Kraft, and, after living some time in Helena, they moved to East St. Louis, Illinois, and there made their home until the death of Mrs. Kraft. Mrs. Kraft left one child, Overton A. Kraft, as the issue of her second marriage. Her husband, F. W. Kraft, took out letters of administration on her estate at the place of her domicil, East St. Louis, 111., and John P. Moore, her father, took out letters on her estate in Phillips County, Arkansas, about one year prior to the letters of Kraft in Illinois. Several claims were probated in Phillips County, among others one of John P. Moore and another of Frierson Moore, Mrs. Kraft’s brother.
On the petition of the administrator, the Phillips Probate Court ordered some réal estate sold to pay debts; it was bought by Frierson Moore, and his purchase of it confirmed. Thereafter Kraft in his own right and as next friend to his child, Overton A. Kraft, brought suit in Phillips Chancery Court to assign him his estate of curtesy in the lands sold, to set aside the sales, and attacking the debts of Moore and son. Since this appeal was taken, Overton A. Kraft has died, and his estate has passed to his half brother and half sisters, who are not parties here. Counsel agree that the issues in the original suit, as to these sales and debts, died with Overton A. Kraft, and left only a question of costs for determination. -There are decisions to the effect that an appellate court will npt proceed to determine a question formerly in the case in order to determine the present question of costs. In this case the costs are all in one suit, and the determination of the issues of the cross complaint will settle all the costs, as the costs in the suit and cross suit are inseparable, except possibly trivial amounts.
After meeting the issues in the original suit, John P. Moore,' in his capacity as administrator, sued Kraft in a cross-complaint, alleging that he had obtained $6,000 of his wife’s money under promise of investment in her» name, and converted' it to his own use, and bought property with it, taking title to himself. He prayed judgment for this as such administrator, or in the alternative that Mrs. Kraft’s children by her first marriage be made parties, and judgment rendered in their favor for three-fourths of it. Kraft denied the allegations, and pleaded res judicata. The chancellor found in favor of Moore on both the suit and cross suit, except as to Kraft’s curtesy, interest which was decreed to him, and there was no cross appeal on that issue, and gave judgment against Kraft for $4,800 with interest. The latter is the only matter before the court.
1. Moore, as-next friend of the Jackson children, had sued Kraft in Illinois, making substantially the same allegations as herein made in regard to money obtained by Kraft from his wife under promise of re-investment for her, and sought to impress a trust on certain real estate in Illinois alleged to have been purchased with this money thus obtained, title to which was taken in himself. The Supreme Court of Illinois decided the case against the Jackson children, on the ground that they failed to trace the money received from Mrs. Kraft as the whole or a definite part of the consideration of the properties-sought to be impressed with' the trust. In that case the court found Kraft received large sums from his wife, and that undoubtedly he was to use it or invest it for the benefit of his wife, and to account for it to her in some manner'; and that it was not a gift from her to him, as he contended. For lack of tracing it into the property the Jacksons failed, and no relief was sought in that action other than the subjection of certain real estate to a trust in their favor. There was not an identity of issues in that suit and this suit which will render the defense of res judicata availing here. 2 Black, Judgments, § 160.
2. Objection is here made to the cross-complaint being filed by Moore as administrator when he and his son were sued individually, and further that it is not responsive to the complaint. These questions were not raised below. The cross complaint charged Kraft with appropriating money belonging to Mrs. Kraft to his own use, and sought its recovery. Kraft denied the allegation as a first defense, and as a second defense pleaded that the matters alleged had been adjudicated in the Illinois suit heretofore referred to. He cannot raise such issues now after having accepted the issues tendered and unsuccessfully defended against such cross suit, the only issues then interposed.
3. The next question, and it is one not free of difficulty, is the right of the ancillary administrator to sue a resident of the State of the domiciliary administration who happens to be in the jurisdiction of the ancillary administrator. On this point the following authorities may be consulted with profit. Greene v. Byrne, 46 Ark. 453; Shegogg v. Perkins, 34 Ark. 117; Turner v. Risor, 54 Ark. 33; Lewis v. Rutherford, 71 Ark. 218; Minor’s Conflict of Taws, §■ 113; 1 Woerner on Administration, § 158; Equitable Life Assurance Society v. Vogel, 76 Ala. 441, s. c. 52 Am. Rep. 344; Merrill v. Ins. Co. 103 Mass. 245, s. c. 4 Am. Rep. 548.
This question, however, like the preceding one, was not raised, by the pleadings. It seems, from the chancellor’s opinion in the record, that it was raised in argument, but the record shows the cross complaint • and the answer thereto on the merits. This is a matter‘to be raised in limine. The chancery court is one of general jurisdiction'in equitable causes of action, where it- has jurisdiction of the persons. The objection now raised, if tenable, went to the jurisdiction over the situs of the debt-represented -by the debtor- before the court, and could be waived ’by him like any other personal right to the proper place -to' be sued: Where not waived, -and an appearance to the merits is entered,' there was nothing for the court to do but proceed ’to adjudicate -the issues thus presented.
4. The evidence sustains the chancellor’s finding that Kraft had taken money of Mrs. Kraft intrusted to' him as trustee for herself and her children by her former marriage for investment for them, and appropriated it to his own use. Finding no error, the decree is affirmed.
Battle, J., absent. | [
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McCurroci-i, J.,
(after stating the facts.) Appellees gave a written order for the bill of jewelry to the traveling salesman of appellants, and same was forwarded to appellants for acceptance and shipment of the goods. Appellees thereafter wrote and mailed a letter to appellants countermanding the order. This case is similar upon the facts to the recent case of Merchants’ Exchange Company v. Sanders, 74 Ark. 16, except that in the Sanders case the proof failed to show satisfactorily that the letter countermanding the order was received before the acceptance of the order and shipment of the goods, while in this case the manager of appellants’ business testifies positively that the countermand was not received until after the shipment of the goods. His testimony is uncontradicted- on this point. There was no other testimony tending to show when the letter was or could have been received. Neither the precise date when the letter was mailed, nor the length of time which would, in the ordinary course of mail, have been required to carry the letter to appellants’ place of business, was proved, nor any other circumstance from which the jury could have found that the letter was received by appellant before shipment of the goods. This being true, the verdict finds no support from the evidence, as it is shown beyond dispute that appellees gave the order for the goods, and the same were shipped to them in accordance with the terms of the order.
The court erroneously gave an instruction at appellees’ request submitting the case to the jury upon a theory not warranted by the pleadings or proof, but the bill of exceptions does not disclose any objection thereto by appellants, and we cannot consider the assignment of error as to that in the motion for new trial.
On account of the insufficiency of the evidence to sustain the verdict, the judgment is reversed, and the cause remanded for a new trial. | [
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Wood, J.,
(after stating the facts.) Conceding that -the appellee was guilty of negligence, which we think the proof tends to show, still there is nothing to show that such negligence was the proximate cause of the injury, or concurred in producing it, and, if it did, then it is clear from appellant’s testimony that his own negligence also contributed. While appellant testifies that the night was dark, and that the headlight was not burning, and that he had no lantern, and that no signal was given before starting, still it does not appear that, if the headlight had been burning, it would have lighted the place where appellant wás walking when he was injured. Nor does appellant say that the failure to give the signal, or to furnish him a lantern, caused him to stumble and fall. He says, “When I was within four feet of my place, walking by the side of the engine, I fell down, and my left hand fell across the rail.” He does not say that it was caused by the darkness or the starting of the engine without signal. We know that his injury was caused by his falling, but no one can say from the evidence what was the cause of his falling. The jury were not at liberty to find as a fact that the appellant fell because he could not see, or because the engine started without a signal If such had been' the fact, appellant might have stated it as a fact. If such was the fact, appellant knew it, better than any one else.
It was not shown that the place where appellant was walking was rough. For aught that the proof shows to the contrary, appellant’s fall may have been the result of accidental misstep, not caused by any of the things charged as negligence in the company. It might just as well have been attributed to some inherent clumsiness or physical defect in appellant as to any other cause. The whole matter was left to conjecture, and in such case the inference from the undisputed evidence most favorable to appellee must .be taken, for appellant has the burden.
Again, it appears that appellant did not get off to help make the coupling, but to get sand. He says: “When the train stopped this night, I got off to get sand.” True, after he had got off “to get sand,” finding that no sand was needed, he started to assist in making the coupling, but was told that he was not needed for that, and was warned to “keep out,” as the place was dangerous. It appears that he did not discover that the bucket contained “plenty of sand’-’ until he was off the engine. “1 didn’t get any sand; they had plenty to go over the hill,” he says. Again, he says, “I got off, and saw there was enough sand in the bucket;” then he went around to see about the trouble in coupling. Now, it was shown that he sat on one end of a plank on the front of the engine, and another brakeman sat on the other, and there was a sand bucket between them from which they each sanded the track. The bucket was about “two or three feet” from appellant, and he could just as easily have discovered that it had “plenty of sand” before he got off as afterwards, yet he says he “got off to get sand,” and “as quick as he got off he saw he had plenty of sand.” “If he had noticed, he would have known” that there was “plenty, of sand in the bucket.” It .conclusively appears that the carelessness of appellant himself in not discovering that there was plenty of sand in the bucket was the cause of his getting off; and if he had not left the engine to get sand, he would not have been injured, of course. He was guilty, by'his own undisputed evidence, of contributory negligence. ■
The court did not err. Let the judgment -be affirmed. | [
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McCueeoch, J.
This is a suit in chancery seeking to set aside, on account of alleged fraud in its procurement, an assignment by the plaintiff, Mary A. Smith, to Guy Nelson, one of the defendants, of an alleged cause of action against the defendant railroad company for the negligent killing of her ■ minor son and a compromise with said defendant railroad company of said action.
On January 23, 1903, the court sustained a demurrer to the complaint, and entered a decree dismissing it for want of equity and permitting the plaintiff to amend by setting forth the additional facts stating a cause of action. To this decision the plaintiff excepted. During the April term, 1903, the plaintiff filed an amended complaint, stating substantially the same facts as in the original complaint. The defendants again demurred, and also interposed a plea of res judicata, on the ground that the amended complaint states no additional facts, and that the decision of the court sustaining a demurrer to the original complaint was a conclusive adjudication of the sufficiency of the amended complaint. The court sustained this plea, and exceptions were duly saved.
Inasmuch as exceptions were saved to the ruling of the court in sustaining the demurrer to the original complaint, and the appeal was taken within a year from that time, the whole record is before us; and if it should be found that the court erred in sustaining that demurrer, the cause must be reversed, without consideration of the sufficiency of the plea of res judicata.
The' complaint states, in substance, that the plaintiff, Mary A. Smith, had a good cause of action against defendant railroad company for the negligent killing of her son, and had brought suit thereon for damages in the sum of $12,000 against said company in the circuit court of Nevada County, her co-plaintiff herein, J. O. A. Bush, and defendant Guy Nelson, who were partners in the law practice, being her attorneys in that -suit, under contract with her to receive one-half of the amount recovered as their fee; that the suit was tried, and she recovered a judgment for $1200 damages against said company, and the latter took an appeal to this court; that while the cause was pending in this court she assigned her half interest in said judgment to defendant Nelson in consideration of his conveyance to her of a tract of land valued at $400; that said judgment was reversed by this court, and the cause remanded for a new trial, and that thereafter, before a new trial could be had, she and Bush and Nelson entered into a new contract, whereby it was agreed that Bush should receive one-half of any amount recovered in said suit, and Nelson should receive one-half of any sum recovered, not exceeding $1200, and one-fourth of any sum recovered in excess of $1200; that thereafter said Nelson and defendant railway company and its attorney entered into a conspiracy to fraudulently procure from the plaintiff, Mrs. Smith, an assignment of the whole of said cause of action and a compromise of the same, and that Nelson, pursuant to said conspiracy, by deception, falsehood and fraud induced her to execute such assignment, and then filed the same with the papers in said damage suit, and compromised and dismissed said suit in consideration of the sum of $500 paid to him by said railway company.
It is alleged that the plaintiff, Mrs. Smith, is illiterate and ignorant of all forms of law, and. that Nelson falsely represented to her that the paper she executed was only an assignment of the part of said cause of action which she had agreed to assign to him, and that her attorney, Bush, knew all about it, and had advised her to sign it; that she was ignorant of the contents of said paper, and signed it under the belief that by it she only assigned the part of said cause of action which she had previously agreed to assign to Nelson, and no more; that at the time of said compromise said railway company well knew that said transfer had been obtained by said Nelson through falsehood, fraud and deception, and that he had no authority to represent Mrs. Smith in making said compromise.
Accepting the allegations as true, which we must do in testing the sufficiency of the complaint on demurrer, they sufficiently state a cause of action, and the learned chancellor erred in sustaining the demurrer. If, as alleged, Nelson and the railway company conspired together, and by falsehood and fraud procured from Mrs. Smith an assignment of her whole cause of action against the company for damages, when she only intended to assign the part which she had previously agreed upon, and was led to believe by Nelson that she was only signing a transfer of such part, and said company compromised with Nelson, then a court of equity should set aside the assignment and compromise, in so far as the rights of Mrs. Smith, and of Bush, who claims through her an interest in the cause of action, are concerned.
As to the rights of Nelson, who is conceded to be entitled to one-half of the recovery on the cause of action up to $1,200, and one-fourth of any recovery over that sum, the assignment and compromise must stand. Nor should Mrs. Smith, as contended by learned counsel for appellees, be required first to surrender and restore to Nelson the tract of land conveyed by him to her. No such condition can be imposed upon her right to set aside the assignment, for the reason that she is not seeking to set aside the part of her cause of action against the railway company which she assigned to him in consideration of the conveyance of the land. That transaction is, so far as the pleadings show, free from fraud, and must stand.
It is contended that Bush cannot maintain this suit because the assignment to him of an interest in the alleged cause of action against the railway company is not shown to be in writing duly acknowledged and filed and noted on the docket of the court where the action was pending, as provided by section 4457 of Kirby’s Digest; and because it is not alleged that the railway company had any actual notice of the assignment to him. This would be true if he were suing upon a statutory assignment, but such is not his attitude in this case. Mrs. Smith sues upon the alleged fraud in the procurement of her assignment to Nelson of the whole cause of action, and Bush is properly joined as plaintiff because of his interest therein. His rights are worked out through her, entirely independent of the statute in question. If no fraud has been perpetrated upon Mrs. Smifh in the procurement of the assignment, then Bush has no standing in the suit, unless he has complied with the statute by filing a written transfer, duly acknowledged, etc., with the papers in the suit, or unless the railway company had actual notice of the same, as held by this court in Kansas City, F. S. & M. Rd. Co. v. Joslin, 74 Ark. 551.
It may be said that the plaintiffs had a remedy at law, and might, in avoidance of the assignment and compromise, show fraud in the procurement, upon a motion in Nevada Circuit Court to reinstate the cause, or in a new action against the railway company to recover the damages. St. Louis, I. M. & S. Ry. Co. v. Brown, 73 Ark. 42, 83 S. W. 332. But this remedy does not ■oust the concurrent jurisdiction of courts of equity to grant relief against fraud by cancelling a written release or assignment obtained by such means. 1 Pom. Eq. Jur. (3 Ed.), § 188; George v. Tate, 102 U. S. 564; Delaine v. James, 94 U. S. 207.
Our conclusion is that the chancellor erred in sustaining the demurrer, and the cause is reversed with directions to overrule the same, and for further proceedings not inconsistent with this opinion. | [
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McCueeoch, J.,
(after stating the facts.) 1. The initial question presented for our consideration is, should the action have been abated on account of the remarriage of the administratrix? In passing upon that point we waive the question whether, conceding that the remarriage of • the administratrix ipso facto revoked her letters and left no administration pending, the widow and heir at law could properly be made parties plaintiff, and the cause be allowed to proceed in their names. This was done, and the cause proceeded in their names as well as in the name of the administratrix, though the final judgment was rendered in favor of the administratrix.
The statute provides that “every such action shall be brought by and in the name of the personal representative of such deceased person; and if there be no personal representative, then the same may be brought by the heirs at law of such deceased person.” Kirby’s Digest, § 6290.
But we uphold the ruling of the court upon a different ground from that of the right of the widow and heir to be substituted as parties plaintiff. The plaintiff derived her powers from letters of administration issued to her from the proper court exercising probate jurisdiction in the State of New York, where the decedent lived and claimed his citizenship at the time of his death, and where the plaintiff also resided.' A foreign executor or administrator is permitted by the statutes of this State to sue here. Kirby’s Dig. § 6003. Under the laws of that State, which must control us in determining the question, and of which we take judicial knowledge (Act April 11, 1901, Kirby’s Digest, § 7823), married women are legally capable of acting as administratrices, and, that being true, it necessarily follows that the marriage of an administratrix did not revoke her letters. The course of legislation in that State on the subject is reviewed in the case of Re Benj. Cur ser Estate, 89 N. Y. 401. See also Hamilton v. Levy, 41 S. C. 374; Moss v. Rowland, 3 Bush, 505; Kansas Pacific Railway Co. v. Cutter, 16 Kan. 568.
No error was committed in refusing to sustain the plea in abatement.
2. Numerous errors are assigned in the giving of instructions asked by plaintiff, and in refusing to give certain instructions, and modifying others asked by the defendant.
Nine separate instructions were given at the request of the plaintiff, and fifteen at the request of the defendant, some of which were modified. All of them need not be copied here, but only such as we deem it important to discuss.
Instruction number three given at plaintiff’s request is as follows:
“3. If you find from a preponderance of the evidence that the defendant railway backed one of its engines over a track between the coaches and the platform, without a guard or look out, or, not having such a guard or lookout, without signal or warning which, under the circumstances, would reasonably attract the attention of a man of ordinary care and prudence who was rightfully engaged in passing between the coaches and the station platform, the railway was guilty of negligence, and you should so find.”
Error is alleged in that the word “guard” is used in the instruction, though the statute only requires a lookout to be kept; and that the instruction assumes the existence of the fact that plaintiff’s intestate was rightfully upon the track.
We do not think that the instruction is open to either of the objections named. The court was there telling the_ jury what would constitute negligence on the part of the railway company. It is true that the statute only requires that a lookout be kept, but the court in effect said that if either a guard or lookout was kept, or if, in the absence of such guard or lookout, such signals or warnings were given as would, under the circumstances, reasonably attract the attention of a man of ordinary care and prudence rightfully engaged in passing between the coaches and station, then the company was guilty of no negligence. An instruction on that subject which omitted the word “guard” would have been erroneous and prejudicial to appellant’s interest, as there was some testimony tending to show that a guard was maintained near by who warned persons about.the tracks, and, in the face of that testimony, it would have been improper to instruct the jury that the failure to keep a lookout was negligence. On the other hand, if the servants of the company kept neither a guard nor lookout, nor gave signals or warnings such as would reasonably attract the attention of a man of ordinary care and prudence rightfully engaged in passing between the station and the coaches then .open for the reception of passengers, then they were guilty of negligence, and the jury were properly so instructed.
This instruction must, of course, be considered in connection with the others, and particularly the following, given at the instance of the defendant:
“17. The court instructs the jury that defendant’s only duty in running said engine was to use ordinary care, with reference to speed of same, to keep a.lookout while passing through the station, and to give signals by ringing the bell; and if the proof shows that these things were done, then there was no negligence, and your verdict should be for defendant.”
The two, when read together, constitute a correct and complete exposition of the law on the question of negligence, as applicable to the facts of this case, and were quite as favorable to appellant as the facts warranted.
No higher degree of care was exacted of appellant’s servants by the instruction complained of than is done by the following language contained in the fourteenth instruction asked by appellant’s counsel, viz: “Although it is the duty of the railway company, by lookout, by bell signals, and by such other means as ordinary prudence may .dictate, to endeavor to protect him, it has the right to assume that he has knowledge of his surroundings, and knows that the. engines and trains may pass, and that he will use ordinary care to protect himself,” etc.
Nor does the instruction involve an assumption by the court of the fact that Tomlinson was rightfully upon the track. The question whether he was, at the time he was killed, crossing the tracks upon the invitation of the railway company was the chief point at issue in the case, and the proof and instructions were directed specifically to it. All the instructions must be considered together, and the question was plainly submitted to the jury for determination upon instructions given at the instance of each party, and the jury could not possibly have understood that the existence of that fact was assumed by the court. Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325; Fort v. State, 52 Ark. 180.
The eighth instruction, given at the request of the defendant, is an example of the manner in which the question was submitted:
“One who, after having escorted a passenger to his coach, leaves the coach, and then returns without any necessity therefor, and for his own pleasure merely, is a licensee, and cannot be said to have returned upon an implied invitation of the carrier, and the carrier owes him no duty save to keep a lookout, and not to wantonly injure him.”
The next assignment of error is in the giving of instruction number seven, asked by the plaintiff, which is as follows:
“7. You are instructed that the fact alone, if proved, that Tomlinson pulled his cape over his head in such manner as only partially to obstruct his ability to see or hear an approaching train, or both, and in that condition stepped or walked in front of an approaching engine, does not necessarily render him guilty of contributory negligence; the question for you to determine being, then, whether Tomlinson exercised ordinary care and prudence under the circumstances.”
The court also gave, in the following modified form, instructions on the- subject of contributory negligence, asked by appellant, viz.:
“7. The court charges the jury that if they find from the evidence that Tomlinson, in order to keep the rain off, enveloped his head in the cape or hood of his coat just before he passed upon the track, so as to obstruct his vision or hearing, and in this condition stepped, ran or walked upon defendant’s track immediately in front of a backing engine, and was immediately struck and killed by it, when he would have seen or heard the engine approaching had his vision or hearing not been obstructed, then he was guilty of contributory negligence, and your verdict should be for the defendant.
“9. If the jury find from the evidence that the deceased attempted to cross over one of defendant’s tracks during a heavy rain, with his -head and ears so muffled up as to obstruct his hearing or seeing an approaching engine, and, in making such an attempt stepped in front of a • moving engine, was struck, and killed, then the court tells you that he was guilty of contributory negligence, and there can be no recovery against the defendant.”
And the following in the form asked by appellant, viz.:
“15. If the jury find from the evidence that Tomlinson pulled his cape or hood over his head, covering his eyes and ears so that he could only see directly in front, and in this condition plunged on the track just before the tender of the backing engine, then he was guilty of contributory negligence, and your verdict should be for the defendant.”
This court on the former appeal of this case said:
“While it cannot be said as a matter of law that a person crossing a track of a railroad by invitation of the company should under all circumstances look and listen for approaching trains, neither, on the other hand, can it be said that they should not do so; the question, as before stated, being usually one for the jury to determine. Yet certainly a person in such situation should not lose sight of the fact that he is in a place of danger to a careless person. He should not close his eyes or stop his ears, so that warning of danger would not reach him.”
It will be observed that the court did not hold that a partial obstruction to the sight or hearing -would necessarily be contributory negligence, but said that, if Tomlinson “pulled his cape over his head, covering his eyes and ears, so that he could see directly in front only, and' plunged, in this condition, on the track just before the tender of a backing engine,” he was guilt) of such negligence as would bar a recovery. In other words, it was held that Tomlinson’s failure to look and listen was not necessarily negligence, but that if he obstructed his vision and hearing so as to put it beyond his power to see or hear, he was, as a matter of law, guilty of contributory negligence. It follows from this that if, in crossing the track, he pulled his cape over his head in such manner as only partially to obstruct his vision or hearing, and not to put it beyond his power reasonably to hear the approaching engine, then it cannot be said, as a matter of law, that he was guilty of negligence, but it was a question for the jury to determine whether or not he exercised ordinary care and prudence under the circumstances. To hold that, as a matter of law, he could not with prudence even slightly or partially obstruct his vision or hearing would be to declare that he must have looked or listened — the very thing which the court in the former opinion in this case would not declare, but said that it should be submitted to the jury as a question of fact. The court said:
“If, then, a passenger or his escort is injured while attempting to pass an intervening track to reach a depot or train, when the circumstances justify him in believing that he is invited by the company to pass over the track, it becomes a question for the jury, after considering all the circumstances, to say whether or not he is guilty of ordinary care. In determining that question the jury should no doubt consider whether he did or did not look and listen, along with the other circumstances in proof; but the mere fact, if proved, that he did not look or listen does not, .under such circumstances, conclusively establish negligence, it being for the jury to say whether he should have looked or listened, and whether, under all the circumstances, he was guilty of negligence or not.”
We do not think there was any error in giving the instruction complained of, especially in connection with those herein quoted on the same subject. They were entirely harmonious, and in no wise inconsistent with each other, or with the former opinion of the court, which is established as the law of this case.
Appellant also complained on accpunt of the giving of an instruction asked by the plaintiff to the effect that the jury should not consider the remarriage of the widow as affecting the assessment of damages. This was a correct instruction, as it was not proper for the jury to consider the remarriage of the widow to reduce the amount of the damage. The defendant alleged the remarriage in its amended answer, and the fact was brought out in the proof; hence it was not improper for the court to tell the jury that they could not consider it in assessing the damages. In Railway Co. v. Maddry, 57 Ark. 306, this court said: “The reason is that a right of action arises at the time of the death to recover just what was lost by it; and that the loss thus occasioned is none the less, even though the-injured party thereafter acquire, through his own skill or industry, or the charity or affection of another, more than he lost.” The precise question was passed upon in Davis v. Guarnieri, 45 Ohio St. 470, and it was held that damages to the husband for the loss of his wife could not be reduced by proof that he has married a second wife, who performed the services for him formerly performed by his first wife. We cannot agree with learned counsel that “the pecuniary loss of the wife by the death of her husband was, in a manner, recouped by her second marriage, and her loss 'could and should extend only up to such time as she married the second time, and not up to the probable life of her deceased husband.” To so hold could but lead to an inquiry as to the comparative capacity of the two husbands and the amount of their respective contributions to the support of the wife. We find no error in the refusal and modification of certain other instructions asked by the defendant.
The fifth instruction withdrew from the consideration of the jury the question whether there should have been lights upon the moving engine and tender, and was properly refused, as there was some testimony tending to show that it was dark enough to require lights, so as to enable those passing over the tracks to observe the approach of the engine.
The other refused instructions involved a declaration that the failure to “look and listen” on the part of Tomlinson was negligence when the court in the former opinion in this case held that such failure was a question of care and prudence to be submitted to the jury. The instructions were contrary to the law of the case announced in the former opinion, and were properly refused.
3. Counsel for appellant strenuously urge that the testimony was insufficient to support the verdict. We do not agree with the contention of counsel for appellee that the decision of this court on the former appeal, reversing the case for a new trial, is conclusive of the question of the sufficiency of the evidence in support of the verdict of the jury on the retrial. We have recently held to the contrary. Heard v. Ewan, 73 Ark. 513, 85 S. W. 240. But we think the testimony on the trial anew, as upon the former trial, was sufficient to sustain the verdict. The jury were warranted in finding, and, before returning the verdict under the instructions they received from the court, must have found, that the servants of the railway company backed the engine and tender at a rapid speed between the coaches and depot without keeping- an efficient lookout and without giving warning of its approach by bell or whistle. This, the court has said, was negligence under the circumstances, the coaches being then open for the reception of passengers, and passengers and their friends, passing to and fro, as the evidence tended to show. They were warranted in finding that Tomlinson was killed either on his return from a trip to the coach made by him to- assist an embarking passenger, or oh his return from a second trip, made to look after the comfort and welfare of the passenger; and this court has said that, if that be true, his entry upon the premises of the railway company was upon its implied invitation, and that he had -the right to rely upon an implied assurance that the way was clear. They were warranted in finding, and must have found, in order to reach a verdict under the instructions given them, that he did not, when he went upon the track, have his head so enveloped in the cape or hood of his coat as to prevent his seeing or hearing the signals from an approaching engine. This court said that under those circumstances it could not be said as a matter of law that he was guilty of contributory negligence, but it became a question for the jury, after considering all the circumstances, to say whether or not he failed to exercise ordinary care.
It is claimed that the verdict is excessive. Tomlinson was, at the time of his death, 29 years old, a vigorous, healthy man, and, according to the .mortality table introduced in evidence, had an expectancy of 35 years. He was possessed of a good education, had at the age of 18 become a practical printer, and advanced rapidly in his trade. At the time of his death he was chief of the stationery division in the Department of the Interior at Washington, receiving a salary of $2,000 per annum, and in addition to this he was earning a salary of $180 per annum as professor of military tactics in a college in the City of Washington. It is also shown that he sometimes did night work in the Government department, for which he received extra pay. There was sufficient evidence to base a finding of his gross earning capacity at the time of his death, to say nothing of the probability that a man of his character and ability, as shown by the evidence, would increase his earning capacity in the sum of $2,500 per annum, and the plaintiff testified that he spent a small portion of it on himself, the remainder being contributed to the support of his wife and child. Putting the net earning contributed to plaintiff and the child at one-half of the gross earnings, $1,250, it would require the sum of $18,125 t° purchase an annuity, calculating at 6 per cent, interest, for that sum. This leaves out of account the other element of damages, viz., the loss of the physical and moral training by the father to the child. It is shown that he was an affectionate father, and was qualified to bestow, and would probably have bestowed, great care and attention upon the training of his child, who was two years old at the time of his death.
The plaintiff was entitled to interest at the rate of 6 per cent, per annum on the amount of the damages from the date of Tomlinson’s death, when the cause of action arose, to date of recovery. Computing interest at that rate on an estimate of damages at $13,190 from July 8, 1894, the date of Tomlinson’s death, up to February 14, 1903, the date of the judgment, would make a total of $20,000 principal and interest.
The evidence warranted the amount assessed by the jury. The judgment is affirmed.
Hilu, C. J., not participating. | [
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McCuuuoch, J.
Appellant, as trustee of the estate of Mrs. H. E. Breathwit, who had been adjudged a bankrupt, commenced this suit to recover of the defendants, Haltom & Hester, thirty-two mules, two wagons, thirty sets of harness, and two saddles. The defendants answered, claiming to be owners of the property by purchase and delivery from Mrs. Breathwit before the adjudication of bankruptcy, and exhibited a written bill of sale from her, purporting to convey the property to them absolutely in consideration of the sum of $2497,21 paid in cash.
It is undisputed that, at the time of the execution of the bill of sale by Mrs. Breathwit, she was indebted to the defendants in the sum named in the bill of sale for balance due on the price of a lot of lumber bought from them a few months previously. The defendants, as security for the purchase price, retained title to the lumber until the price should be paid. A part of the lumber was on hand when the bill of sale was executed, and defendants had forbidden the shipment of any more pf the lumber until the debt should be paid in full'.
Appellant contended that the bill of sale, though on its face purporting to convey unconditionally the title to the property, was intended only as security for the debt, and he introduced testimony tending to establish that fact. J. L. Breathwit, who, as agent for Mrs. L. E. Breathwit, conducted the dealings with appellees, and- executed the bill of sale, testified that the instrument was intended as security, and that the property was worth $4250. He also testified that it was agreed between the parties that the transaction should be kept secret, and that the bill of sale should not be placed of record. T. P. Lester, one of appellants, testified that the conveyance was intended to be absolute, and that there was no agreement or understanding that it should operate only as a security for debt. He and other witnesses introduced by appellees testified that the price named in the bill of sale was a fair market value of the property.
The case was tried below by appellant upon the theory that the conveyance was intended only as security, and that the same was a fraud upon the rights of other creditors of Mrs. Breathwit. The court submitted it to the jury upon this theory, and, in returning a verdict for the defendants, the jury necessarily found that the transaction was free from fraud, and that an absolute .^conveyance of the title was. intended. The court by its instructions, in effect, told the jury that they must find these facts to exist before they could return a verdict for the defendants. The instructions of the court were as .favorable to appellant as the testimony warranted, and we find no errors in them prejudicial to his rights. The testimony- was conflicting, and quite sufficient to warrant the verdict.
Counsel for appellant contends that there was no delivery of the property under the bill of sale, and that the title did not pass against'creditors. On this issue, too, the verdict of the jury settled the question against appellant’s contention. It was shown that the delivery of the property was made at the time of the execution of the bill of sale, and that the same was left in the possession of one Grayson, an employee of appellant, to hold for appellees. Counsel contends that this was equivalent to retention of possession by appellant, and that no title passed. This conten tion is not, however, sound, for the reason that Grayson, though an employee of appellant, could have been constituted the agent of appellee for the purpose of holding the property, and the evidence shows that such was a fact. This constituted not only a constructive delivery, but an actual change of possession. Either is sufficient to complete a sale free from fraud. Shaul v. Harrington, 54 Ark. 305; Lynch v. Daggett, 62 Ark. 592; White v. McCracken, 60 Ark. 613.
It is also contended that the court erred in refusing to permit witness J. E. Breathwit to state what his intention was in executing the bill of sale. Such testimony was inadmissible, and was properly excluded. The court had already permitted the witness to state that appellees demanded the conveyance as security for their debt, and that he executed the same only as security. • I't was incompetent for him to state what his intentions were in the transaction.
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McCulloch, J.,
(after stating the facts.) The statute regulating appeals to this court and the practice in disposing of same provides that an appellee may, by motion to dismiss or answer, raise the question of the appellant’s right to further prosecute an appeal. Kirby’s Digest, § § 1227, 1228.
An appellee may plead in this court that since the appeal was taken a court of competent jurisdiction has, by judgment duly rendered, settled against the appellant the.rights asserted in the case on appeal. Pillow v. King, 55 Ark. 633. The fact that the suit on appeal was commenced first in point of time and in a different court from that in which the subsequent judgment was rendered does not obviate the bar in such adjudication. The pendency of the first action might have been pleaded in the second suit in bar of the right to maintain the same, but, if not pleaded, or if, after the plea is amended, judgment upon the merits of the controversy in the second suit is allowed to become final, it is a bar to further prosecution of the first suit.
“The fact that a judgment was obtained after the commencement of the suit in which it is pleaded does not prevent its being a bar. It is the first judgment for the same cause of action that constitutes an effective defense, without regard to the order .of time in which the suits were commenced. Hence it follows that a prior judgment upon the same cause of action sustains the plea, of a former recovery, although the judgment is in an action .commenced subsequent to the one in which it is pleaded.” 2 Black on Judgments, § 791; Finley v. Hanbest, 30 Pa. St. 190; David Bradley Mfg. Co. v. Eagle Mfg. Co., 57 Fed. 980.
In Daniel v. Garner, 71 Ark. 484, this court said: “Under the statutes of this State a defendant, when sued at law, must make all the defenses he has, both legal and equitable. If any of his defenses are exclusively cognizable in equity, he is entitled to have them tried as in equitable proceedings, and for this purpose to a transfer of the cause to the equity, docket or chancery court, as the case may be.” Horsley v. Hilburn, 44 Ark. 458; Reeves v. Jackson, 46 Ark. 272.
A judgment of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the suit. Ward v. Derrick, 57 Ark. 500.
All of the rights and matters asserted in this suit by appellant could have been adjudicated in the ejectment suit, or she could have pleaded the pendency of this suit in bar of appellee’s right to maintain that suit. Having failed to do either, she is barred by the final judgment in that case from seeking further to adjudicate the question in this case. Her right to prosecute this appeal has, on that account, ceased, and the same must be dismissed. It is so ordered.
BaTTrE, J., absent. | [
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Battue;, J.
Eliza Richardson, by her next friend, filed a complaint in the Stone Circuit Court, alleging that the defendant W. E. Davis, on the 27th day of April, 1902, assaulted her in his storehouse near St. James, in Stone County, in this State, by seizing and embracing her in a rude and indecent manner, in consequence of which she, being in feeble health, suffered a severe shock to her nervous system and much humiliation; and that before that, on the same day, he made m decent proposals to her at the house of Ed. Grigsby; and she claimed $8,000 damages.
The defendant denied all these allegations.
In the trial of the issue in the case the plaintiff, in part, testified that on the 17th day of April, 1902, she went to the defendant’s store, and no one was there. She then went to Mrs. Grigsby’s, and found her there and the defendant. After a short conversation Mrs. Grigsby left the room, and Davis then told her, the plaintiff, to go home through a certain hollow, and he would meet her there; that he had something to tell her. In a short time Mrs. Grigsby returned, and Davis left. In a short time after this, on the same day, she went to Davis’s store to buy some goods, and he again said to her that he had something to tell her, and “Don’t you tell a thing about it; I will make it all right.” Fie pulled, hugged and kissed her, “and acted like he was going to do something else.” She escaped, and, as she did so, he said, “Don’t you tell anything about it.” At this time the plaintiff was fifteen years old.
The defendant, testifying, denied the conversation at Mrs. Grigsby’s and the assault and coxiversation at the store.
Other evidence was adduced.
The court, over the objections of the defendant, instructed the jury as follows:
“1 You are instructed that every person is the sole custo-, dian of his person, and no oxie has a right to touch it unlicensed^ and that any unlawful touchixig of the person of another constitutes an assault; and if you believe from the eviderxce in this case that the defendaxit, W. E. Davis, did make axi assault upon the person of Eliza Richardson by making use of any violent or indecent familiarity toward her, or embracing, touching or handling her person in an indecent manner, then your verdict should be for the plaintiff for such an amount as you believe she is entitled.
“2 That for every unlawful assault the law conclusively presumes some damage.
“3 That the law presumes'every female to be. chaste and virtuous.
“4 If a man takes improper liberties with a female, or-fondles her against her will and consent, he is guilty of indecent assault.
“5. If you find for plaintiff, in arriving at the amount of damage to which you think the plaintiff -is entitled, if you find that the assault was committed, you should take into consideration the actual damage sustained by reason of the assault, in which is included not merely the physical injury suffered, but: you may also consider the mental suffering, humiliation, mortification, and injury to her feelings and sensibilities, if such you find to be the consequence of the assault, together with the disgrace, insult, and indignity to which 'the plaintiff is subjected by reason of said assault, as well as its effects upon her future condition in life, all of which are proper elements of damage to be considered by you in making up your verdict. And if the jury further believe that said assault was unprovoked and willfully, wantonly or maliciously done, you may assess an additional sum as damages as a punishment to the defendant, and to deter others from the commission of a like offense; and in estimating such damage you may consider the financial condition of the defendant.”
The plaintiff recovered judgment for $4,000, and the defendant appealed.
The trial court erred in giving to the jury instruction numbered 4. Under it they might have found that appellant committed an assault upon appellee by making the indecent and insulting proposal to her at Mrs. Grigsby’s, and under instruction numbered 5 returned a verdict against him for damages. The. proposal was not an assault, and, being unaccompanied by a physical injury, did not give the appellee the right to recover damages on account thereof. It was not an element of damage. Peay v. Western Union Telegraph Company, 64 Ark. 538.
What we have said as to the fourth instruction applies to the words “or indecent familiarity towards her” in the first instruction.
Appellant objects to the fifth instruction because it directs the jury to allow the appellee for the “effects upon her future condition in life.” There was no evidence of such damage, and the direction should not have been given.
Appellant objects to the same instruction, the fifth, because it told the jury that it might consider the appellant’s wealth in computing damages, both actual and punitive. We do not think that this is a correct interpretation of the instruction. The court told the jury in this instruction what is included in actual damages, and then told them that they might allow punitive damages, and in this connection said: “In estimating such damage you may consider the financial condition of the defendant,” having reference to punitive damages. Surely, the court did not mean that the wealth of the appellant could assist in measuring actual damages. Construed in the way suggested, the instruction in that respect is correct. 2 Sutherland on Damages (3d Ed.) § 404, and case cited. But it is defective in form, and should not have be given as it is. The defect, however, should have been pointed out by a specific objection.
Reverse and remand for a new trial. | [
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Hill, C. J.
The appellants were indicted by the grand jury of Lafayette County, charged with the murder of Henry Evans. They were convicted of murder in the second degree, and given seven years each in the penitentiary, and have appealed to this court.
Henry Evans, Cleveland Jones, these appellants, and several other negroes were at Marryman’s store, and Evans and Jones left together, and within less than a half hour appellants went in the same direction along the same path taken by Jones and Evans. Evans was never seen alive by any other persons after he left Marryman’s store, and about three weeks afterwards a decomposed body, with the skull crushed, found in the woods about a quarter of a mile from the path pursued by these parties, was identified as his. On the day before he was killed his employer paid him $18.55, consisting of $13.55 in silver and a five-dollar bill. Cleveland Jones was suspected of the murder, and was arrested, and the appellants sent for as witnesses, and their conduct excited suspicion; and later Jones made a statement to the effect that he and Evans stopped on the roadside, and appellants overtook them, and one of them, with a wagon spoke, struck Evans on the head, and afterwards robbed his body, taking therefrom ten silver dollars and two half dollars. He further said that while at the store one of the appellants asked him to take Evans out, and they would hold him up and rob him of his noney, and offered him $2.50 if he would do this. It is shown hat Evans was not as intelligent as the average darkey. Jones jays he got scared when he saw them robbing the body, and ran away, and afterwards appellants came to him, and insisted on him taking $2.50, and told him to say nothing, and that Evans had gone on home. He obeyed this injunction until he was arrested himself, charged with the murder, after the discovery of Evans’s body.' No money was found on Evans’s body. Jones’s testimony on the trial was to the same effect as his statement to the deputy sheriff when arrested, as above outlined. This was the chief testimony against the appellants, and the main point argued on this appeal is that there is not sufficient corroboration of the accomplice to sustain the conviction. Conceding, without- deciding, that he was an accomplice requiring corroboration, the court is of opinion that the evidence was sufficient. The appellants’ suspicious conduct before arrest, and contradictory statements and efforts to manufacture testimony were shown. One of them, in the presence of the other, told the sheriff where to find the spoke with which the blow was dealt, and, when the blood-stained spoke was brought to the group of men where these appellants were, Chancellor broke down and cried. The proximity to the scene of the crime, the circumstance referred to and others in evidence were sufficient testimony to afford the corroboration required by law. Kent v. State, 64 Ark. 247. The defendants gave plausible testimony as to their whereabouts, and were corroborated by some witnesses locating their presence at other places in accordance with their testimony; but-a reasonable latitude for the approximation of time would not .throw this-testimony in conflict with Jones’s. The defendants also proved good character for themselves. The jury doubtless had some doubts as to the truth of Jones’s story, for a belief in it called for the death penalty, not seven years in the penitentiary; but those matters are solely in the province of the jury, and they have accepted Jones’s testimony, corroborated as it is by the incriminating conduct of appellants, and these matters are not for review here.
It is insisted that, notwithstanding there was no demurrer to the indictment, nor motion in arrest of judgment, its sufficiency can be raised here; but, as the indictment is good, and the point made against it decided otherwise than contended for by appellants in Powell v. State, 74 Ark. 335, it is not worth while to pursue the subject further. The instructions were correct, and the appellants’ fate settled by the jury. If Jones told" the truth, their punishment is far too light; if he did not, it is their misfortune that a jury of their county would not credit their testimony. The judgment is affirmed. | [
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Riddicic, J.
This is an action to compel H. C. Tipton and others, comprising the Board of Trustees of the State Charitable Institutions, to specifically perform and carry out a contract for the purchase of coal from the plaintiff for such institutions during the months of December, 1902, and January, February and March, 1903. Plaintiff alleged that, after having made such contract with him, and after he had given bond and prepared to fully carry out the contract on his part, the board, in January, 1903, arbitrarily and .without cause rescinded the contract, and refused to accept or pay for coal from the plaintiff. The defendant demurred to the complaint, and the demurrer was sustained and the complaint dismissed.
We are of the opinion that this judgment must be affirmed, for the reason that under the statute the board had no right to contract for coal for a longer period than one month. The statute requires that the board, through its purchasing agent, shall advertise monthly for such supplies “for ten days before the first Monday in each month, upon which day the contract for the succeeding month shall be awarded to the lowest and best bidder for the furnishing of said supplies.” Kirby’s Dig. § 4130.
This statute is mandatory, and shows that the board had no right to make the contract which it made with plaintiff. The action of the board in making the contract and then refusing to comply with it no doubt caused inconvenience and loss to plaintiff; but, as the contract was contrary to the statute, the courts cannot enforce it.
Judgment affirmed. | [
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McCueeoch, J.
This is an ejectment suit brought by the White River Mining & Navigation Company and H. D. Armstrong against A. R. Rangston, to recover possession of the land embraced within the boundaries of a mining claim, and involves a contest between appellants and appellee as rival claimants under mining claims held by them, respectively. The claim «of appellants was located on January 1, 1899, and that under which appellee holds on January 1, 1901. Appellee, alleged in his answer that appellants failed to do as much as $100 worth of assessment work during the year 1900, as required by mining laws, thereby forfeiting the claim. A trial was had before a jury upon this issue, and the same resulted in a verdict and judgment for the defendant.
The mining claim under which appellants assert title was located by E. C. Cook and others, who subsequently conveyed to appellants, and the assessment work on the claim is alleged to have been done for them by'Cook as their agent. On the trial they- introduced Cook as a witness to prove the amount of assessment work done, and he testified that during the year 1900 he caused to be done for appellants “actual development work on said lands to the amount of $60, and over $200 in making a road from said land to Buffalo City on White River.” The witness was asked by counsel for appellee, on cross-examination, if he had not, as agent for the owner of another mining claim, known as the “Small Hope Placer,” caused the roadwork in question to be done as assessment work on that claim, and if he had not procured and filed in the United States general land office as final proof to obtain a patent of the Small Hope placer claim the affidavits of two persons, Honeycutt and Gardner, showing that said road work had been done as work on that claim. He answered that only a small part of this work had been applied on the Small Hope placer claim, and thereupon appellee was permitted to read in evidence certified copies of said affidavits of Honeycutt and Gardner, filed by the witness in the United States land office, showing the cost of the road work during the year 1900, and that it had been done on the Small Hope placer claim. This ruling of the court is assigned as error. The evidence was competent for the purpose of contradicting the witness. He testified that only a. small part of the road work was applied on the Hope placer claim, and it was competent to contradict him by showing that he had procured and filed the affidavits as. proof that this work was done entirely on the other claim. His act in procuring and presenting the affidavits was in direct contradiction of his testimony in this case to the effect that only a part of it was applied on the Small Hope placer claim, and .the remainder upon the claim in controversy. The testimony of the other witnesses was conflicting as to which claim should have received credit for the road work. Omitting this credit from the claim in controversy, the amount of assessment work done during the year 1900 fell short of the amount essential to prevent a forfeiture. There was sufficient testimony to warrant the jury in finding that the whole of the road work was done upon the Small Hope placer claim, and none upon the claim in controversy. No complaint is made, and no error is assigned, as to instructions of the court, and, the jury having settled the issue of fact against appellants upon legally sufficient evidence, there is no reason for disturbing the verdict.
Counsel for appellants urge further that the testimony shows that appellants have held adverse posession of the land for more than the statutory period of limitation, and were thereby fully invested with title. No issue of that kind was tendered by the pleading. The complaint filed by appellants set forth their claim of title under a location of the mining claim on January 1, 1899, and by the answer of the defendant the sole issue joined was to a forfeiture for failure to perform the requisite amount of assessment work during the year 1900. A different cause of action and source of title could not be introduced into the case after the issue was joined and the case was before the jury. Judgment" affirmed.
Battle, J., absent. | [
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Wood, J.,
(after stating the facts.) The affidavit of the appellee, and his evidence, and that of the only other party to the contract out of which the suit arose, shows that the suit was an effort upon the part of appellee to enforce a specific attachment in favor of the vendor of a lot of staves for the purchase price of the timber that was used in the manufacture of the staves. It appears that appellee asked and was granted on his affidavit an order directing the officer to take the staves designated, which was duly executed, and in this way appellee seeks to establish a vendor’s lien upon the staves under sections 4966-67 of Kirby’s Digest. This statute only gives the vendor of personal property in an action brought for the recovery of the purchase money the right to seize the property purchased while it is in the possession of the vendee. It does not give him a lien which he can enforce at law by seizing the property after it has passed into the hands of third parties who have purchased the same for value, although such parties may have notice before their purchase that the purchase money has not been paid.
An effort to enforce a specific attachment for the purchase money is inconsistent with a claim of title to the property itself. It is true that appellee testified that it was the understanding between him and the party to whom he sold the timber that he was to have the money for the purchase thereof before the staves were sold. But this was not tantamount to a reservation of title, and all the other evidence shows conclusively that title was not reserved.
But, if title had been reversed, then the action founded upon the affidavit in suit was improper. This action could not be converted from an action to recover purchase money under the-statute supra into, an action of replevin to try the title and right of possession to the property.
The verdict and judgment were not responsive to the pleadings and proof in the case. Reversed and remanded for further proceedings. | [
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Wood, J.,
(after stating the facts.) The cause, as we view the undisputed proof, was presented to the jury upon an erroneous theory. The instructions for appellee were not grounded upon the undisputed evidence. The second instruction assumes that it was the duty of appellant to have exercised reasonable diligence to sell the seed “upon receipt of notice óf the defendant’s (appellee’s) refusal to accept them.” There is no contention, either in the pleadings or the proof on the part of appellee, that it refused to accept the seed in-a manner to breach the contract. It denies any breach, and claims that the notice to appellant of its inability to receive the seed was merely a postponement of the delivery until such time as it could safely receive them, and that appellant acceded to this; and appellant makes no claim, as we understand his evidence, that the contract was broken by appellee until it had directed appellant to sell the seed, and had thus indicated its intention not to receive them. The direction to appellant to sell, according to the evidence on both sides, was some ten days or two weeks after the written notice and request to appellant to delay the delivery of the seed. So this instruction is not based on the evidence.
Number three for appellee was erroneous for the same reason. The proof on the part of appellant shows that he did not claim a breach of the contract by appellee until it refused to accept the seed and directed him to sell same, promising to save him from loss. The second and third instructions for appellee seem to be predicated upon the theory that the written notice from appellee to appellant might be treated as a breach of the contract. There is nothing in the proof to justify this. Neither side claims this as a breach, and it certainly could not have been the duty of appellant to sell the seed until there was a breach of contract, and appellee could not complain of a failure to make a sale when there was no failure, and when the sale was made by the direction and consent of appellee.
Instruction number five is likewise abstract and erroneous for the lack of evidence to support it. If it could be said that appellant, by failing to object to the evidence, if any, tending to show a waiver of breach of contract, thereby consented that such issue might be presented, although not raised by the pleadings, still the instruction was erroneous in telling the jury that if appellant “by his silence or conduct led Bentley to believe,” etc. There is no evidence of a waiver of breach by silence. Nor indeed, if there was a breach of contract, is this a case where it was waived by silence. It nowhere appears that silence of appellant, if he was silent, changed in any manner the status of appellee after the alleged breach occurred. It is not shown wherein appellant was in duty bound to speak, in order to prevent some financial loss to appellee. Pox v. Drewry, 62 Ark. 316.
If appellee violated the contract, it would require something more than mere silence upon appellant’s part to constitute a waiver thereof, under'the facts as disclosed by this record.
For the errors pointed out the judgment is reversed, and the cause is remanded for a new trial. | [
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Hike, C. J.
This is a suit for malicious prosecution, and terminated in the circuit court in a judgment for the plaintiff for $500, and the defendant has prosecuted this appeal.
1. The motion for new trial presents four grounds. The first three are that the verdict is contrary to the law, to the evidence and to the law and evidence. The fourth is: “The court erred in giving instructions, Nos. 2, 3, 4, 5, 8 and 9 asked for by the plaintiff.” The exception upon which this assignment is based reads as follows: “The defendant at the time excepted to the giving of instructions numbered 2, 3, 4, 5, 8 and 9, and asked that his ^exceptions be noted of record, which was accordingly done.”
Mr. Justice Eaicin, speaking for this court in Atkins v. Swope, 38 Ark. 539, where the exception was in the exact language of the foregoing exception, said:
“The objection made to giving these instructions was general, embracixig all of them in gross. It was xiot specific as to either or any of them, and directed the attention of the court to no particular error. We have several times held that objections of such sweeping nature will not be considered here if any of the instructions be good. It is not to be encouraged, even if all be bad. It is manifestly due the court that the attorney should lay his finger upon the errors complained of, and not compel the judge to seek them amongst all the matter included in a dragnet objection.”
This rule has been a settled rule of practice in this court (and it is practically the same in every appellate colirt) for many years, and has been often followed. The authorities on this subject have been recently reviewed and approved in the case of Young v. Stevenson, 75 Ark. 182. Some of these instructioxis excepted to are elexnental statexnents of law, and this kind of exception precludes the court from goipg beyond a finding that anyone of them is sound.
2. •This leaves only the question of the sufficiency of the evidence to sustain the verdict.
The plaintiff was bound over by a justice of the peace to answer before the grand jury for a felony, and the grand jury dismissed the case. The appellaxit contends that the dismissal of the case by the grand jury is not a sufficient termination of the prosecution to authorize the maintenance of the action for malicious prosecution. The authorities are practically uniform in holding that a discharge by a grand jury is prima facie a termination of the prosecution, and is sufficient to support the action on this requirement. Miller v. Ry. (C. C.) 41 Fed. 898. Newell on Malicious Prosecution, pp. 358-363; 19 Am. & Eng. Enc. Law (2d Ed.), p. 682. .
The binding over to await the grand jury by a committing magistrate is deemed evidence of probable cause, but the authorities do not go beyond holding it only prima facie evidence of probable cause, not conclusive evidence, as a conviction in a court of competent jurisdiction is, even though it be reversed. Hale v. Boylen, 22 W. Va. 234; Holliday v. Holliday, 123 Cal. 26,. 55 Pac. 703; Miller v. Ry. (C. C.) 41 Fed. 898; Ross v. Hixon, 46 Kan. 550, 26 Pac. 955, 12 L. R. A. 760, 26 Am. St. Rep. 123; 19 Am. & Eng. Enc. Law (2d Ed.), 664.
This committal by a magistrate was evidence in favor of the appellant, but not conclusive. There was evidence that he acted under advice of counsel (but there is some conflict on that), and also evidence that he did not make a full disclosure to his counsel of all facts known to him. These were issues of fact properly determinable by a jury, and, in the absence of any uncontroverted evidence of a fact conclusive of itself in favor of appellant, the verdict cannot be disturbed.
The judgment is affirmed. | [
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